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02/23/87 the People of the State of v. Calvin Florey

February 23, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CALVIN FLOREY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

505 N.E.2d 1096, 153 Ill. App. 3d 530, 106 Ill. Dec. 304

Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding. 1987.IL.212

APPELLATE Judges:

Presiding Justice Quinlan delivered the opinion of the court. Campbell and Buckley, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The defendant, Calvin Florey, was charged by indictment in the circuit court of Cook county with the murder of George DelValle. Following a bench trial, he was found guilty of voluntary manslaughter and sentenced to seven years' imprisonment. The defendant appeals and raises the following contentions: (1) the State failed to prove beyond a reasonable doubt that the defendant did not stab the victim in self-defense; (2) the trial court deprived the defendant of a fair trial when it prevented the defendant from introducing evidence of the victim's violent behavior; (3) the trial court abused its discretion by arbitrarily refusing to impose a sentence of probation; and (4) the trial court abused its discretion by imposing an excessive sentence of seven years' imprisonment.

We affirm.

Joseph Glorioso, the only eyewitness that testified for the State, said that he and his wife were drinking beer in Chicago's Hamlin Park with the victim, George DelValle, and the victim's fiancee, Gretta Erazo, during the early hours of April 10, 1983. Glorioso said that the four left the park at approximately 12:30 a.m. to drive Erazo home. On the way, Glorioso stopped at a gas station on the southwest corner of the intersection of Damen Avenue and Roscoe. After Glorioso paid for the gas, he heard the driver of a silver pickup truck yelling "PBC Love" and "I'll kill you like we did your brother." Glorioso stated that the truck was stopped at the intersection and that he saw three people in the truck cab and other people hiding in the bed of the truck. Glorioso said the yelling caused him to become agitated, so he obtained a baseball bat which was in the rear of his van and threw it at the truck. Glorioso stated that the bat hit the side of the truck as the truck drove off. Thereafter, Glorioso said that DelValle got out of the van and joined him as he picked up the bat he had thrown at the truck. At that point, Glorioso saw two men running towards them from the opposite corner of the intersection. Glorioso testified that the victim ran towards the rear of the van and that he did not observe anything in the victim's hand at that time.

Glorioso further testified that the two men ran past him and attacked the victim. Glorioso stated that one of the attackers hit the victim on the leg with a bat, knocking him to the ground. The other one, he said, then stabbed DelValle twice in the head and twice in the back as he was on his hands and knees. Glorioso described the one with the knife as having blondish-brown hair, being taller than the other attacker and wearing a tan jacket. Glorioso also testified that no more than two or three seconds had passed when he heard more gang slogans and was immediately attacked by three additional individuals carrying baseball bats. He said he was knocked down and beaten for about 15 or 20 seconds before the assailants ran away.

After the attack, Glorioso said he saw the victim staggering down Damen. Glorioso stated that he then spotted a plainclothes policewoman and told her what had happened. The policewoman then drove him around the area in an unsuccessful attempt to locate the attackers. However, upon his return to the gas station, Glorioso saw the man in the brown jacket who had stabbed his friend sitting inside the silver pickup truck and pointed him out the the police. Glorioso identified the defendant as the man he had pointed out to the police.

On cross-examination, Glorioso said that he drank four or five beers on the night of the incident. He also admitted that he had previously been a member of a street gang called the "Deuces" but claimed that he was no longer a member at the time of the incident. Glorioso denied that he yelled anything at the people in the pickup truck and denied that the individuals in the pickup truck yelled "Deuce Killers" before the attack. Glorioso admitted that he did not see the defendant in the pickup truck at first. He only saw the defendant in the truck upon his return with the policewoman. Finally, Glorioso admitted that he stood by and watched as the victim was stabbed but explained, however, that only two or three seconds elapsed from the time he saw the victim being attacked and the time he also was attacked.

The victim's fiancee, Gretta Erazo, also testified for the State at the defendant's trial. She stated that she and the victim were at the victim's parents' house on the evening of April 9, and, at approximately 11:30 p.m., they left and walked to the park, where they met Joseph Glorioso, Glorioso's wife and some other people. While in the park, Erazo said she drank one beer, and, while she said that she saw the victim drinking beer at his home as well as in the park, she could not estimate the amount of beer the victim had consumed that evening.

Erazo corroborated Glorioso's testimony that they left the park in Glorioso's van and that Glorioso stopped at the intersection of Damen and Roscoe to get gas. Erazo said she saw a silver pickup truck, facing north on Damen, waiting for the traffic light to change. She stated that she also heard voices, but, because the radio inside the van was on, she could not tell what was being said. Erazo further testified that she saw Glorioso throw a baseball bat at the truck as it turned westbound onto Roscoe. The victim exited the van at that time and approached Glorioso.

Thereafter Erazo said that she saw two men running toward the van and that, while Glorioso stood still, the victim ran past the van on one side, and the other two men ran past on the opposite side. She claimed that she lost sight of the victim and these two men at that point because she could not see out of the van's rear windows. Erazo also testified that she never saw anything in the victim's hands and that one of the men was carrying a bat and the other carried what looked like a knife. However, Erazo admitted on cross-examination that the first time she told a law-enforcement official about the knife-like object was when she told an assistant State's Attorney about the object a few weeks prior to trial. She described the man with the knife as tall, blond and wearing a light-brown jacket. She further stated that she had also seen two or three additional individuals with baseball bats attack Glorioso. After the attack, ...


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