Appeal from the Circuit Court of Cook County; the Hon. Stephen
A. Schiller, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following convictions in a jury trial of attempted murder and two counts of aggravated battery, defendant was sentenced to concurrent terms of 25 years for attempted murder and five years for one of the aggravated battery counts. On appeal, it is contended that: (1) his guilt was not proved beyond a reasonable doubt; (2) the trial court erred in (a) refusing his jury instruction on intoxication and (b) denying a motion to suppress his statement; and (3) his 25-year sentence for attempted murder was excessive.
It appears that after a fight broke out in the La Costena Tavern between two members of defendant's party and a group of three other individuals, defendant began firing his gun at two of the latter group.
Jose Mancha, who was wounded by the shots, testified that he went into La Costena around 12:10 a.m. on January 26, 1981, accompanied by Hubaldo Rodriquez and Eleazar Torres. After ordering drinks, they sat at a small table near the pool table. David Sanchez and Martin Gallegos, members of defendant's party, were playing pool nearby and defendant was seated at the bar. Sanchez asked Mancha to play pool and upon his refusal, an argument started during which Sanchez hit him. Mancha at that point heard some shots "that hit me in both legs." Neither he or any in his group struck defendant or had any conversation with him. After he was shot, Mancha went to the washroom and didn't come out until the fight was over. He stated that defendant had been drinking but he could not say whether he was drunk.
Hubaldo Rodriquez first testified to convictions of misdemeanor theft in 1977 and burglary in 1978 and then stated that after Sanchez struck Mancha when he refused to play pool, Rodriquez heard shots and turned to see defendant with a gun in his hand. He heard more shots, and when he realized that he had been shot in the hip he picked up a small table to protect himself but defendant shot him in the right knee and then in the left hand. As he ran to the other side of the room, defendant shot him in the stomach twice and after he got under the pool table defendant fired another shot at him which missed. Neither he, Torres or Mancha had any conversation with defendant before Mancha was shot, and the fight which broke out did not involve defendant in any way. On cross-examination, he stated that he considered himself to be a friend of defendant and had never argued with him during the three years he had known him. He heard a total of eight shots and did not see anyone other than defendant with a gun. After the first shots defendant was always in his vision, and he never saw him knocked to the floor nor did he see anyone kicking defendant in the head or ribs. Although he saw defendant with a drink, he did not know how many he had and he did not seem to be drunk.
Eleazar Torres testified that he left the table while the others were arguing about playing pool and sat at the bar about four seats from defendant. When the fight began, defendant walked toward the four men who were fighting, and he saw defendant shoot at Mancha and Rodriquez. He tried to get defendant to put the gun away, but defendant pushed him aside and continued firing. When Torres saw that the gun was empty, he hit defendant with a cue stick and defendant then struck him with the empty gun but dropped it when Torres hit him a second time. On cross-examination, he stated that Mancha and Rodriquez fought with Sanchez and Gallegos after Mancha was initially struck by Sanchez but that none of the others were involved in the fight.
Steve Moreno, after testifying that he had pled guilty to a charge of delivery of a controlled substance in 1976, stated that he was in La Costena with a friend and saw defendant with a drink. He said, however, that defendant did not have any conversation with Mancha, Rodriquez or Torres prior to the shooting and when the fight began he started to break it up but stopped when the shooting started. He saw defendant walk over to the table when the fight started and begin firing. When defendant ran out of the tavern, he chased him, brought him back to the tavern and kept him there until the police arrived. He stated that when defendant left his seat at the bar to fire at the victims, he was walking straight and there was also nothing unusual about his gait when he ran out of the bar after the shooting. On cross-examination, Moreno stated that he and the bar owners were friends but that he did not work there; that Mancha, Rodriquez, and Torres were regular customers but he had never seen defendant before that night. Moreno watched the entire altercation and saw about four punches exchanged. He did not remember telling the police that Rodriquez threw a small table at defendant and stated that Rodriquez had not done so.
Officer Koclanis testified that when she arrested defendant at La Costena, he had blood on his face and his clothing. She retrieved the .45-caliber automatic revolver from the bartender and gave it to her partner who observed that the clip was empty. On cross-examination, she stated that the tavern was "messy" but she did not notice any broken windows and did not recall seeing any upended tables. She did notice some broken cue sticks and some chairs strewn about. She did not detect any alcohol on defendant's breath either at the bar or during the subsequent interview at the police station.
Douglas Rathe, an assistant State's Attorney, testified that he and Detective Hayes spoke to defendant between 3 and 3:30 a.m. through Steve Moreno, who acted as an interpreter. Rathe gave an opinion that defendant was not drunk at the time of the questioning, stating that defendant did not sway when he walked toward him from a distance of about 20 feet away and that he detected no odor of alcohol on his breath. Defendant's Miranda rights were explained to him through Moreno who stated that defendant gave answers that he understood each of them and that he was willing to talk to Rathe. Defendant then stated, through Moreno, that he was in the tavern in the early morning hours and that he fired his gun at people in the tavern but that he did not know why he had done so. He had bought the gun earlier that day from someone he did not know.
Martin Gallegos, a defense witness, testified that he and Sanchez arrived at La Costena between 9 and 10 p.m. and sat at the bar. Defendant came in later and sat with them for about a half hour when Gallegos and Sanchez left to play pool. Later Mancha and Rodriquez sat down next to the pool table and when Mancha and Sanchez started arguing Mancha hit Sanchez and the four men began to fight. Other people who joined in the fight struck him and Sanchez, but they did not hit Mancha or Rodriquez. When defendant left his seat at the bar and went towards the fight, four or five people jumped him, knocked him down and kicked him as he was lying on the floor. Defendant's face and shirt were bloody. He noticed that defendant then knelt on the floor holding the gun and when he heard the first two shots, he ran out of the bar. On cross-examination, he stated that neither Mancha nor Rodriquez had talked to defendant prior to the fight.
Detective Thiede, one of the officers who went to La Costena, testified that the entire room was in disarray and that he saw tables and chairs knocked over, a broken window, broken drinking glasses and several broken cue sticks. Defendant was bandaged and bloody when detective Thiede spoke to him and he noticed a "slight odor of alcohol." Moreno told him that defendant had stopped firing at one point, but when Rodriquez threw a small table at him, he began to fire again.
Barbara Malloy, the head nurse at the St. Anthony's emergency room where defendant was treated, testified that defendant had a laceration on his forehead and a bruise on his right eye. He told her, through an interpreter, that he had been struck with a pool cue. She noticed that he had been drinking "by the way he acted and the way he spoke." He also "smelled of alcohol."
Defendant initially contends that he was denied his right to a fair trial where the trial court refused his instruction on the defense of intoxication. Both attempted murder and aggravated battery are specific intent crimes (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4(a), 12-4(a)), and voluntary intoxication is a defense to a crime if the condition of intoxication negates or makes impossible the ...