Appeal from the Circuit Court of Cook County; the Hon. James
Donegan, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, Sarkis H. Eshaya, was charged by indictment with the April 29, 1983, street-gang-related murder of Marcos Ocampo and the attempted murder and aggravated battery of Martin Salgado. Following a jury trial, defendant was found guilty of murder as to victim Ocampo and guilty of aggravated battery as to victim Salgado. On October 24, 1984, defendant was sentenced to the Department of Corrections by the trial court for concurrent terms of 30 years for murder and three years for aggravated battery.
On appeal, defendant contends that the trial court committed reversible error in that: (1) the State failed to prove him guilty beyond a reasonable doubt of murder and aggravated battery; (2) certain evidentiary rulings by the trial court and remarks by the prosecutor prejudiced his case; and (3) in sentencing defendant, the trial court improperly considered in aggravation evidence of defendant's prior misconduct.
On the evening of April 29, 1983, the murder victim, Marcos Ocampo, drove himself and Martin Salgado, Mario Gallardo, Romell Nava and John Ortega to a bar called the Rainbow Lounge. The Rainbow Lounge (the bar), is located at the northwest corner of the intersection of Clark Street and Lawrence Avenue on Chicago's north side. This corner is regarded as the "turf" of a Chicago street gang known as the "Brazers." Three of Ocampo's passengers, Salgado, Gallardo, and Nava, were members of the Brazers. The fourth passenger, Ortega, like Ocampo, was not a member of the Brazers or any other street gang.
As the five young men exited Ocampo's automobile, they noticed Javier Torres, another Brazer, standing in front of Tina's hot dog stand, located just north of the bar on the same side of Clark Street. At that time, Nava walked over to Torres and Ortega went into the bar as the others waited outside.
Defendant Eshaya, known on the street as "Ace," and two other men then emerged from Tina's. All three were members of a street gang called the "Latin Kings," a rival gang of the Brazers. Although the prosecution and the defense present different versions of what happened next, they do agree that Nava became involved in a fistfight with Humphrey Jenzeh, one of the Latin Kings with Eshaya.
At trial, Salgado, Nava, and Gallardo testified that the fight broke out when Jenzeh began to accuse Nava of being affiliated with the "Disciples," another street gang allegedly allied with the Brazers and opposed to the Latin Kings. Eshaya and Jenzeh, on the other hand, testified that Torres approached them in front of Tina's and began shouting gang slogans at them. They stated that when they emerged from Tina's they were confronted by 15 to 20 Brazers who Torres had rounded up in the bar next door. According to the Latin Kings, the Brazers were armed with baseball bats, pool cues, sticks and knives.
Salgado, Nava and Gallardo denied that they were armed, but stated that there was a baseball bat in the trunk of Ocampo's automobile. They also stated that they were soon surrounded by a large number of Latin Kings who had been summoned from the neighboring roller rink. When the other Latin Kings arrived, the Brazers began to back away. As they did, Ocampo held out his arms, palms up, and told Eshaya and the Latin Kings that they did not want any trouble. At that point, Eshaya asked for and was handed a gun from someone in the crowd of Latin Kings. Holding the gun in two hands, Eshaya then turned towards Ocampo, who was standing 20 to 30 feet away, and shot him. Ocampo struggled to reach the doorway of the bar where the other Brazers had run for cover. Nava and Gallardo pulled him inside the doorway and Nava called an ambulance. When Salgado stepped forward to see who had shot Ocampo, Eshaya turned around and shot twice at him. One of the rounds hit Salgado in his left lower leg.
Ocampo was taken by ambulance to Weiss Memorial Hospital where he later died from the bullet wound. At the hospital, Nava and Gallardo told police that they knew who shot Ocampo. Eshaya and some companions were arrested later that night, and on May 20, 1983, Gallardo and Nava identified Eshaya in a lineup as Ocampo's killer.
Although Eshaya first denied being at the scene of the shootings, at trial he testified that he shot Ocampo and Salgado in self-defense. According to Eshaya, he was afraid that the Brazers might have guns. At one point in the trial, Eshaya said that Ocampo had his hand behind his back and so Eshaya shot him. Later in the trial, Eshaya stated that Ocampo was trying to hit him with a baseball bat when he shot him.
Chicago police officer Alfred Adreani testified that he and his partner were the first police officers to arrive at the scene. He stated that a search of the area did not reveal any guns, knives, pool cues, baseball bats or other weapons.
On September 11, 1984, the jury returned a verdict of guilty of murder and aggravated battery against Eshaya. At the sentencing hearing on October 3, 1984, in aggravation, and over the objection of defense counsel, the State introduced evidence that defendant had previously admitted to carrying a handgun. This admission was made in a case in which he was acquitted. On October 24, 1984, Eshaya was sentenced to the Department of ...