Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Massey, Judge, presiding.
PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Defendants Edwin Gutierrez, Anibal Santiago, Eduardo Rosario and Alberto Arroyo were charged by indictment with the murder of Juan Gomez. Defendants Santiago, Gutierrez and Rosario were tried by a jury. Defendant Arroyo was tried at a simultaneous bench trial before the same judge. The trial court found Arroyo not guilty, while the jury found co-defendants Santiago, Gutierrez and Rosario guilty of murder. Santiago was sentenced to 70 years in prison, Gutierrez to 50 years in prison and Rosario to 40 years in prison.
The appeals of Santiago, Gutierrez and Rosario have been consolidated by this court. The following arguments are set forth for our review: (1) Gutierrez and Santiago argue they were not proved guilty beyond a reasonable doubt; (2) Gutierrez contends his arrest was not supported by probable cause; (3) Santiago argues the State improperly used its peremptory challenges during voir dire to exclude blacks; (4) Santiago alleges he was prejudiced by a discovery violation by the State which resulted in ineffective assistance of counsel; (5) Gutierrez and Santiago argue that certain prosecutorial misconduct during trial and closing argument resulted in reversible error; (6) Gutierrez and Santiago assert that the trial court erred in allowing the State to present a certain unanticipated witness in aggravation and in denying their motion for a continuance to investigate the witness; and (7) Rosario, Santiago and Gutierrez contend their sentences are excessive. For the following reasons, we affirm as to all three defendants.
At trial, Sonya Rodriguez testified that on October 7, 1981, the date of the murder, she and her baby had been living with the victim, Juan Gomez, in an apartment at Monticello and Courtland in Chicago. At approximately 12:30 p.m. on that date, she was inside the apartment while the victim was outside fixing a flat tire on his car. She heard six or seven gunshots, looked out her front living room window and saw the victim lying on the sidewalk. Within seconds after the shooting she saw the backs of three men running into the alley towards Lawndale Avenue. Rodriguez stated that one of the men was stocky with dark hair, wore a black leather jacket and held a gun up in the air as he ran into the alley. A second man was slightly taller than the first man and was wearing an afro haircut and green camouflage army pants. The third man was about the same height as the second man.
Brothers Charles and James Kidd testified that shortly prior to the shooting they were travelling west on Courtland between Monticello and Lawndale. Charles Kidd lived at 3706 Courtland, which was three houses from Lawndale. As they drove up to Charles' house, Charles saw a "heavy-built" man in a black leather jacket, whom he identified as defendant Santiago, emerge from the gangway next to his house. Charles saw Santiago walk up to a 1973 maroon Pontiac that was parked in front of his house. Santiago began talking with the individual sitting in the driver's seat of the Pontiac LeMans, whom both brothers identified as Gutierrez. Charles Kidd then turned his truck around and parked it across the street from the LeMans behind a brown Buick Electra 225.
Charles Kidd's wife then pulled up in her car, and the LeMans quickly drove westbound and was not seen again by either brother. Meanwhile, James Kidd saw three men leave the parked Buick Electra and head down Lawndale towards the alley. The Buick was then driven around the corner, where it stopped and waited near Lawndale and Courtland. Shortly thereafter, the Kidd brothers testified they heard gunshots and ran to the intersection of Lawndale and Courtland where they observed at least three men jump into the Buick. Defendant Santiago, who was the driver of the Buick at that time, noticed that the Kidd brothers were watching him. He pointed his finger and yelled at the brothers. As the car drove away, Charles Kidd saw that the license plate number was QA24 and two other numbers that he could not ascertain.
Also testifying for the State were Yvonne Sosa and Nina Thompson, who lived together at 1841 Lawndale. Both women stated they heard the shooting. Sosa testified that after being awakened by the gunshots, she went to her bedroom window and saw three men coming from the direction of Monticello Street, where the shooting occurred. The men ran towards Lawndale Avenue, where a brown Buick Electra was waiting for them. A maroon colored car followed the three men down the alley towards Lawndale Avenue.
Sosa testified that the first man she saw running down the alley was 5 feet 8 inches, had a beard and was wearing a black leather jacket and dark pants. He also had a gun and red and blue ski mask in his hand as he ran down the alley. She identified defendant Santiago at trial as this first man.
The second man Sosa saw running in the alley was a little taller and thinner than Santiago and had a small beard and black hair. He wore a green windbreaker and dark pants. She identified defendant Gutierrez in a post-arrest lineup and in court as the second man.
Sosa testified that the third man wore green pants and had an afro haircut, a small beard and a mustache. He also was carrying a gun in his hand while he ran down the alley. Before exiting the alley, the man turned around and looked at Sosa. Subsequently, Sosa identified defendant Rosario as the third man in a post-arrest lineup and at trial.
All three defendants and co-defendant Arroyo were arrested within 20 minutes after the shooting in a brown Buick Electra 225 with Illinois license plate QA2807. The Buick was stopped approximately two miles from where the shooting occurred. Immediately after their arrest, Santiago and Gutierrez were taken to a police station where they were identified in a lineup by the Kidd brothers.
Police officer William Jaconetti testified that near the scene of the arrest he found a 1973 maroon LaMans with a warm engine. Several weapons were recovered from the trunk of the LeMans. Two of the weapons, a .357 magnum and a .38 special, were positively identified as the murder weapons. Also found in the trunk was a ski mask similar to the one described by witness Yvonne Sosa.
Dr. Eupie Choi of the Cook County medical examiner's office testified that the victim's body had five entry wounds, two of which were on the back portion of the head. Two more entry wounds were on the right side of the upper arm. The last entry wound was on the victim's right buttock.
Defendants Gutierrez and Santiago presented no evidence on their behalf. Rosario presented alibi testimony of his brother Oscar and a friend, Miguel Diaz.
• 1, 2 Defendants Gutierrez and Santiago argue that the circumstantial evidence presented at trial was insufficient to prove their guilt beyond a reasonable doubt. We disagree. A valid conviction may be sustained entirely upon circumstantial evidence. (People v. Weaver (1982), 92 Ill.2d 545, 555, 442 N.E.2d 255.) It is necessary, however, that "`the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime.'" People v. Purnell (1984), 126 Ill. App.3d 608, 618, 467 N.E.2d 1160.
• 3 In the present case, the State has met its burden of proof. The evidence showed that shortly prior to the shooting Santiago was talking to Gutierrez as Gutierrez sat inside a maroon Pontiac LeMans within one block of where the murder occurred. The backs of the three men whom Sonya Rodriguez later saw fleeing the murder scene and running towards an alley closely matched the physical and clothing descriptions of all three defendants on the date of the occurrence. Defendants were also observed running down the alley by Yvonne Sosa, who was able to view their faces for a brief time in broad daylight when they passed within 10 feet of her window. She noticed that Santiago and Rosario were carrying guns. At trial, Sosa positively identified all three defendants as the men she saw fleeing in the alley. Additionally, the Kidd brothers testified they saw the three defendants emerge from the alley after the shooting and jump into an awaiting Buick Electra which was used as the getaway car. Both brothers were able to see Santiago's face when he pointed his finger and yelled at them. Finally, the murder weapons were recovered from the Pontiac LeMans in which Gutierrez had been sitting shortly before the murder.
• 4-6 Gutierrez, noting that he was not seen holding a gun, argues that the evidence failed to establish that he was legally accountable for the murder. We do not agree. "`Where one attaches himself to a group bent on illegal acts which are dangerous or homicidal in character, or which will probably or necessarily require the use of force and violence that could result in the taking of life unlawfully, he becomes criminally liable for any wrongdoings committed by other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof, even though he did not actively participate in the overt act itself.'" (People v. Bell (1981), 96 Ill. App.3d 857, 864, 421 N.E.2d 1351.) Proof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by a group. (96 Ill. App.3d 857, 864.) Here, we believe that the evidence, as described above, provided a sufficient basis for the jury to conclude that defendant was guilty under an accountability theory.
• 7, 8 Santiago urges that the jury should have found him innocent because the trial court found co-defendant Arroyo innocent at his bench trial. It is well settled, however, that "the failure to convict a co-defendant does not raise a reasonable doubt as to the guilt of the other defendant unless the evidence presented against both parties is identical in all respects." (People v. Hiller (1980), 92 Ill. App.3d 322, 325, 415 N.E.2d 1202.) In the instant case, the evidence presented against Santiago was considerably different from the evidence presented against co-defendant Arroyo. Arroyo was not identified by witnesses as one of the three men fleeing from the murder scene. Nor was he seen entering the getaway car. The evidence against Arroyo showed only that he was arrested shortly after the murder in the company of the other three defendants. Additionally, his fingerprints were found on a gun which was discovered by police in the trunk of a maroon car that had been connected to the murder by witnesses. The gun, however, was not one of the two guns which had been positively identified as the murder weapons. Furthermore, the fingerprint expert could not determine when Arroyo's fingerprints had been placed on the gun. Hence, it is apparent that there was substantially less inculpatory evidence adduced against Arroyo than against Santiago.
Gutierrez next argues that the trial court improperly found that the arresting officers had probable cause to arrest him. Defendant urges that since the lineup identifications by the Kidd brothers and Yvonne Sosa were a direct result of the alleged illegal arrest, the trial court erred in denying his motion to suppress the identifications. We find no merit to this argument.
• 9-11 To determine whether a police officer has probable cause to arrest an individual, it must be shown that the facts and circumstances within his knowledge "are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense." (People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356; People v. Sanchez (1982), 107 Ill. App.3d 240, 248, 437 N.E.2d 744.) Under this standard, courts have observed that whether or not probable cause exists depends on the totality of the circumstances known to the arresting officer at the time of the arrest. The probable cause determination should not be unduly technical but instead must rely on probabilities measured by the practical considerations of everyday life. (People v. Sanchez (1982), 107 Ill. App.3d 240.) Once a trial court has denied a motion to quash an arrest for lack of probable cause, a reviewing court should not disturb that court's ruling unless it is manifestly erroneous. People v. Calderon (1980), 85 Ill. App.3d 1030, 407 N.E.2d 840.
• 12 In the present case, the trial court's determination of the probable cause issue is not manifestly erroneous. At the suppression hearing, arresting officer William Dorsch testified he received a "flash" message over his police radio that a shooting had just occurred and that the offenders were in a brown Buick Electra with a partial license plate number of QA24 and two more unknown numbers. Only five minutes after receiving the flash message, Dorsch saw defendant Santiago, whom he had seen on approximately 50 prior occasions, in a car matching the above description. The car contained three other passengers, one of whom was defendant Gutierrez. Dorsch observed the car only two miles from where the shooting occurred. Prior to stopping the car, Dorsch notified police communications that he had observed the vehicle in question and was going to attempt to stop it. Under similar facts and circumstances, this court has held that probable cause existed to make an arrest. (See, e.g., People v. Romo (1980), 85 Ill. App.3d 886, 407 N.E.2d 661; People v. Turner (1975), 32 Ill. App.3d 221, 336 N.E.2d 49.) Given that the arrest of Gutierrez was made with probable cause, the trial court properly denied his motion to suppress.
• 13 Santiago contends he was denied his constitutional right to a fair and impartial jury of his peers because the State systematically used their peremptory challenges during voir dire to exclude blacks from the jury. Our supreme court, however, has made it clear that proof of a systematic and purposeful exclusion of blacks from juries in case after case because of race is required before a prosecutor's use of peremptory challenges could be found to violate a defendant's right to a fair and impartial jury. (People v. Williams (1983), 97 Ill.2d 252, 454 N.E.2d 220; see also People v. Payne (1983), 99 Ill.2d 135, 457 N.E.2d 1202; People v. Loggins (1985), 134 Ill. App.3d 684.) Santiago has failed to make the showing required by the supreme court, and, thus, we are unable to find that his constitutional rights were violated.
Santiago contends he was denied his right to effective assistance of counsel due to the State's failure to disclose its witnesses' addresses. He alleges he was prejudiced because his counsel, by not having the addresses, could not effectively represent him.
• 14 Illinois Supreme Court Rule 412(a)(i) provides: "[T]he state shall, upon written motion of defense counsel, disclose to defense counsel * * * the names and last known addresses of persons whom the state intends to call as witnesses * * *." (87 Ill.2d R. 412(a)(i).) The purpose of this rule is to prevent surprise and afford an opportunity to combat false testimony. (People v. Anderson (1977), 46 Ill. App.3d 607, 614-15, 360 N.E.2d 1371.) However, Rule 412(i) provides that the court may deny disclosure under that rule if it finds that "there is substantial risk to any person of physical harm, intimidation, bribery, economic ...