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02/06/87 the People of the State of v. Miguel Lopez

February 6, 1987





504 N.E.2d 862, 152 Ill. App. 3d 667, 105 Ill. Dec. 577 1987.IL.141

Appeal from the Circuit Court of Cook County; the Hon. L. Michael Getty, Judge, presiding.


JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.


Following a jury trial, defendant Miguel Lopez was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and sentenced to 30 years' imprisonment in the Illinois Department of Corrections and 3 years of mandatory supervised release. On appeal, defendant contends that: (1) he was denied a fair trial as a result of multiple instances of improper prejudicial hearsay testimony and innuendo that a large crowd of people identified him as "the shooter" of the victim; (2) he was denied a fair trial as a result of multiple instances of prejudicially improper closing argument, compounding earlier acts of prosecutorial misconduct; (3) the trial court invaded the province of the jury by refusing his tendered instruction on voluntary manslaughter; and (4) the trial court abused its discretion in sentencing him to 30 years' imprisonment. For the reasons set forth below, we reverse and remand.

The pertinent facts are as follows. On September 11, 1982, between 11:30 and 11:45 p.m., an argument occurred between defendant and the victim Jose Vega, also known as "Pepe," the manager of the El Pavo Rael tavern located at 4928 South Ashland in Chicago. The initial argument began when Essie Derringer, the victim's girlfriend and an employee of the tavern on the night of the incident, demanded that defendant and his companion pay for their drinks after they allegedly refused to do so. The victim became involved in the argument after "a man" started to hit Derringer on the back of the head. Victor Santiago, the tavern owner, subsequently intervened when he saw the victim pull a pistol from his pocket. He jumped between the victim and defendant, and persuaded defendant, whom he knew as "Raul," and his companion to leave the tavern, telling them to "forget about the whole thing." The next morning, at approximately 2:45 a.m., the victim was shot to death in the tavern, having suffered five gunshot wounds to his body. Defendant was later arrested as the assailant.

At trial, Essie Derringer identified defendant as the man who argued with the victim, stating that he was wearing a yellow "muscle" T-shirt and blue slacks at the time. She also stated that during the argument she saw the victim take a gun from his belt, but that he did not point it at anyone and held it in his hand hanging at his side. Derringer further testified that several hours after the initial confrontation she was standing at the end of the bar talking with the victim, who was seated on a bar stool, when defendant appeared from the rear of the tavern holding a gun in front of him with both hands, shouted the name "Pepe," and began firing one shot after another at the victim. Derringer stated the victim was unarmed at the time, that she saw defendant's face clearly because he was facing her as he fired the gun from an approximate distance of 10 feet, that defendant was wearing the same yellow T-shirt and blue slacks he had been wearing at the time of the earlier argument in the tavern, and that defendant ran out of the front door of the tavern after the shooting. Paul Escamilla, a tavern customer, similarly testified that he saw the back of a man wearing a yellow T-shirt and light blue jeans leaving the front door of the tavern at that time.

Daniel Rodriguez, who was then 14 years old, testified that at approximately 2:45 a.m. he saw defendant enter the tavern carrying a gun, heard gunshots one minute later, and saw defendant leave the tavern still holding the gun in his hand. He further stated that he noticed defendant was staggering as if drunk, that he passed through a gangway towards the alley behind the tavern, and that he got into a brown Chevrolet Monte Carlo with a two-tone roof. Rodriguez also testified that he did not remember whether defendant got in the passenger's or driver's side of the car, that he could not see how many people were in the car, and that the car's engine was running but its lights were off and he was unable to see the license plate. After the car sped away, he returned to the front of the tavern and gave a description of the automobile to a police officer, who immediately broadcasted it over his police radio.

Chicago police officer Frank Cusimano testified that he and his partner were refueling their police squadrol when they heard the broadcast of the vehicle wanted in connection with the tavern shooting. Shortly thereafter Cusimano saw an automobile matching that description. Cusimano and his partner pursued and stopped the car. Inside the car, Cusimano found defendant, whom he testified was the driver, and two passengers. He stated that defendant was wearing a sleeveless, yellow T-shirt and blue pants. Because the officers did not have a full description of the assailant involved in the shooting, Cusimano wrote down the car's license plate number and allowed defendant and his companions to proceed on their way. He and his partner then drove to the El Pavo Rael tavern where they obtained a further description of the offender, apparently from a later account given by Rodriguez to the police at the scene. In observing that the description matched defendant, Cusimano ran a registration check on the car's license plate number and then drove to the location where Jose Esquibel, the registered owner, lived. Finding the car parked and empty, the officers waited until defendant and his companions approached the vehicle, stopped defendant, and placed him under arrest. Defendant was then handcuffed, placed in the squadrol, and transported to the tavern site.

Chicago police officer Thomas Glynn was at the tavern when the squadrol arrived. Glynn, who had interviewed several witnesses prior to that time, was told that the possible offender was in the squadrol. He then asked an unidentified woman to look inside the squadrol, and brought her outside. After looking inside, the woman screamed, "That's him, that's him there." Upon hearing the woman scream, a number of people ran out of the tavern and also started screaming, "That's him, that's him." Daniel Rodriguez was also asked to look inside the squadrol and, after doing so, told the police that defendant was the man he had seen entering and leaving the tavern with a gun. Thereafter, defendant was transported to the Area Three police station. Cusimano subsequently indicated on his arrest report that defendant had been drinking but was not intoxicated.

At approximately noon that same day, Essie Derringer viewed a lineup and identified defendant as the man who was involved in the argument in the tavern the day before and the man who had shot the victim; defendant was dressed in the same yellow T-shirt and blue pants he had allegedly worn during the argument and at the time of his arrest. At trial, Derringer appeared to equivocate concerning her identification of defendant at the lineup, stating that she was "pretty sure," but not positive, that defendant was the offender. Under further questioning, however, she adamantly asserted she had told the police that defendant was the man responsible for the crime and that she did not know where the police "got the term, 'pretty sure.'" She also stated that prior to trial she left Chicago because she was "afraid to come and appear on the witness stand," but that she subsequently returned when arrangements were made by the State to have her flown back to Chicago.

During the State's case in chief, it also sought to call as a witness James Vrchoda, one of its investigators, for the purpose of explaining the State's unsuccessful efforts to secure the testimony of three witnesses. Defendant objected, and the court, after conducting a " voir dire of the witness" outside the presence of the jury, sustained defendant's objection, holding that the possible prejudicial value of the witness' testimony would outweigh any probative value that it would have to the jury.

Efrain Munoz, who was called as the sole witness for defendant, testified that he was at the tavern on the night of the argument, that he saw the victim place a gun against the chest of a man he was arguing with, but that he did not pay attention to the argument, was playing pool at the time of the shooting, and just saw the gunman running out of the tavern without stumbling. Munoz never looked inside the squadrol at the tavern site, could not remember the gunman's clothing, and told the police he could not identify anyone. Similarly, Victor Santiago, previously called as a witness on behalf of the State, stated he did not remember how defendant was dressed at the time of the argument and did not see the shooting, although he had been in the tavern at that time.

Defendant did not testify on his own behalf at trial. However, in opening argument, defense counsel "suggested a modified alibi defense" to the effect that defendant was in another tavern at the time of the shooting and was later being given a ride home by the occupants of the Monte Carlo when it was stopped by the police.

After closing arguments, defendant moved for a mistrial, based on the State's alleged improper closing argument. The motion was denied, as was defendant's motion for a new trial in which defendant alleged as grounds for reversal the denial of his voluntary-manslaughter instruction, the shifting of the burden of proof to him, and other alleged prosecutorial misconduct. I

Defendant first argues that he was denied a fair trial as a result of multiple instances of improper prejudicial hearsay testimony and innuendo that a large crowd of people identified him as the "shooter" when he was exhibited to them while in the police squadrol. The State contends that this testimony was admissible under the spontaneous-declaration exception to the hearsay rule. Alternatively, it also argues that if the testimony complained of was hearsay, it was properly admitted because defendant failed to make a timely objection and it was therefore waived or any error in its initial admission was cured when the court sustained defendant's later objection to it or that its admission constituted harmless error in light of the overwhelming evidence of defendant's guilt, especially the identification of defendant by several other witnesses.

Hearsay is defined as testimony of an out-of-court statement offered to establish the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court asserter. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.) "The basis for excluding evidence under the hearsay rule lies in the fact that an opportunity to ascertain the veracity of the testimony is absent." (81 Ill. 2d 571, 577, 411 N.E.2d 223.) Thus, an opportunity for cross-examination of the party whose assertions are offered to prove the truth of the fact asserted is an essential requirement of such a testimonial offering and, accordingly, testimony by a third party as to statements made by another non-testifying party identifying an accused as the perpetrator of a crime constitutes hearsay testimony and is inadmissible. 81 Ill. 2d 571, 577-79, 411 N.E.2d 223.

In the instant case, the testimony complained of was elicited from three police officers. Initially, without objection by defendant, the following colloquy occurred between the State and Officer Glynn:

"Q. [Prosecutor] hat happened when you brought this female out of the tavern?

A. [Officer Glynn] The officer from the wagon got out and he had opened up the back door of the wagon.

Q. Now immediately upon opening that wagon, what if anything happened?

A. She looked in and she screamed, that's him, that's him there.

Q. After this female screamed, what happened next?

A. A lot of people came running out of the tavern and they all started screaming at, that's him, that's him."

Similar testimony, which was objected to by defendant and sustained by the court, was elicited from Officer Cusimano and Detective Bedran. Officer Cusimano testified as follows:

"When we pulled up in front of the -- we pulled in front of the tavern. We double parked the vehicle [squadrol] out in front and I went to the rear of the vehicle. There was [ sic ] quite a few people out in front of the tavern.

Q. [Prosecutor] What did you do when you went to the rear of the squadrol?

A. I opened the rear door.

Q. Were any persons around at that time?

A. At that time it was approximately ten, ten, eleven, twelve people. I didn't get an exact count, but ...

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