APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
512 N.E.2d 748, 159 Ill. App. 3d 494, 111 Ill. Dec. 359 1987.IL.1114
Appeal from the Circuit Court of Cook County; the Hon. L. Michael Getty, Judge, presiding.
JUSTICE STAMOS delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
Defendants Anthony Bunch and Derrick Batson were convicted of murder after a jury trial and were sentenced to a term of 35 years' imprisonment to be followed by three years' mandatory supervised release. Defendants now appeal from their convictions, raising numerous issues.
The record discloses that on August 26, 1984, the victim, Joey Szafraniec, was shot and killed by defendant Batson as he fled from Batson, defendant Bunch and three other assailants.
Madeline Cortez testified that on August 26, 1984, at approximately 6:20 p.m., she was walking down North Avenue on the west side of Chicago accompanied by her sister, Evelyn, and a youth named Felix, when she witnessed a fight. Approximately five black youths, including both defendants, were beating a white youth. Bunch, also known as Bobo, left the fight momentarily and walked toward a nearby liquor store. As he arrived at the store, Bunch reached into his waistband and pulled out a handgun. Batson, also known as Shooter, also left the fight and followed Bunch on his bicycle. Bunch gave the gun to Batson and the two youths returned to the fight.
The victim broke free momentarily and began to flee down the street toward an alley when Batson raised the gun in front of him and fired twice at the victim. Batson's hands moved upward and backward as he fired. The victim fell to the ground and both defendants fled. Madeline approached the victim and observed that he had a hole in his head and was covered with blood. Madeline went home and later spoke with a police officer, Tom Shouse, when he arrived at her home. Her sister Evelyn was present when Madeline spoke with Shouse. Madeline identified both defendants in a police photograph book and at a police lineup later that evening. Madeline also identified another of the victim's assailants in a second lineup. The police photograph book containing defendants' photographs among others was admitted into evidence.
On cross-examination, Madeline testified that both defendants struck the victim during the fight. The victim hit no one and tried to protect his face. Madeline could not state the ages, height or weight of defendants or the victim. Immediately prior to the shooting, the victim and one of his assailants called out the names of the Latin King and Imperial Gangster street gangs. Madeline maintained that she told several unknown police detectives that she had seen Batson before and that she saw him ride his bike toward the victim while carrying a gun. Madeline stated she viewed both lineups alone and was not told by anyone that defendants were present in either lineup. Madeline denied that she had discussed her testimony with the assistant State's Attorney or his partner or had seen their visual aid, a plat of the scene of the shooting, prior to trial. Madeline also denied that she had ever discussed the shooting incident with her sister. Madeline spoke only on one occasion with the assistant State's Attorneys at which time they told her to tell the truth.
Sergeant Frederick Robertson of the Chicago police department testified that at 6:20 p.m. on the evening of August 26, 1984, he responded to a call of a man shot. Arriving at the scene, Sergeant Robertson observed the victim's body lying in an alley. Robertson gathered a description of the offenders from bystanders and put out a flash message over the police radio. He did not speak with Madeline or Evelyn Cortez. Robertson then went with several officers to a location at which he believed one of the offenders might be. As Robertson proceeded by car down the street, he observed Bunch, who matched the offender's description, and stopped to question him. Bunch was in possession of a bicycle. Robertson placed Bunch under arrest.
Officer Thomas Shouse testified that he was a friend of the Cortez family. Shouse monitored the radio call of a man shot and arrived at the scene to conduct a follow-up investigation. He spoke with the Cortez sisters then transported them to the police station.
Evelyn Cortez testified that on August 26, 1984, she was walking home from a carnival with her sister Madeline when they witnessed a fight. The victim was backed up against a gate and was being struck by Bunch and four other youths. Bunch left the fight and walked around the corner where he was followed by Batson. Bunch removed a gun from his waistband and gave it to Batson and both youths returned to the fight. The victim began to walk toward an alley when Batson raised the gun and fired two shots at him. The victim fell to the ground in the alley. Batson walked up to the victim then gave his bicycle to Bunch. Both defendants then left the scene.
Evelyn and Madeline went home and were visited later that evening by Officer Shouse. Shouse escorted Evelyn and Madeline to the police station where they were asked to look through a book of photographs. Evelyn identified both defendants. She was alone at the time and was not told by the police whom to pick out. Evelyn then witnessed two lineups. From the first lineup, she identified an individual named Victor Guzman and from the second lineup, she identified both defendants as the victim's assailants. She was not told by police that defendants were in the lineup and she did not discuss the lineup with her sister Madeline. Evelyn stated that she knew defendants prior to the shooting because they were around her house with several other youths.
On cross-examination, Evelyn maintained that she never spoke to her sister Madeline about the shooting. Evelyn denied that she had a brother or stepbrother. Evelyn denied knowing a man named "Popo" and stated that she never lived with any family, brother, stepbrother, cousin or friend of such name. Evelyn admitted that Batson was wearing a hooded shirt at the time of the shooting and she could see only his face.
A sidebar was then called by Bunch's counsel, Mr. Miller. Miller told the court that the assistant State's Attorney, Mr. Rueckert, had informed him that Evelyn did in fact have a brother or family friend who was moved by the State to Puerto Rico. Miller added that this story was corroborated by a defense witness, Miriam Mendez. Miller suggested that Rueckert was a witness, consequently, and asked that Rueckert withdraw from the case. Miller also sought to call Rueckert to refute Madeline's testimony that she had never spoken with Rueckert prior to trial. Rueckert told the court that an airline ticket to Puerto Rico had been purchased for an individual who lived with the family at the request of Madeline's mother. Rueckert stated that the individual had been threatened by the Latin Kings street gang. He did not know of any relationship between Evelyn, Madeline and this individual.
The court thereafter denied Miller's motions for a mistrial, a continuance and to call Rueckert as a witness. The court stated that it would allow Miller to question Evelyn further in regards to whether she had a brother, but would not allow the defense attorney to question Evelyn beyond this matter. Evelyn was called to the court's chambers where she identified the individual as Anderson Cortez, her brother. Anderson was approximately 20 years old and was also called "Nelson" and "Popo." Evelyn stated that she had misunderstood Miller's question earlier. Evelyn was recalled to the stand where she testified that she had a brother but he no longer lived with her.
Detective Richard Schak testified that two street gangs, the Disciples and the Latin Kings, operate within the area where the instant shooting occurred. On the evening of August 26, Schak spoke with the Cortez sisters. They were separately asked to view a photograph book and to identify any of the victim's assailants. Both Evelyn and Madeline identified both defendants. Thereafter, Schak assisted in the apprehension of Batson. Batson and Bunch were placed in a police lineup and were separately identified by Madeline and Evelyn.
Dr. Yuksel Konacki, a physician employed by the Chicago medical examiner's office, testified regarding his post-mortem examination of the victim. Dr. Konacki observed a bullet wound at the rear of the victim's head and various abrasions of the head and face. Dr. Konacki opined that the victim had died as a result of the gunshot wound.
Detective Michael Herigodt testified that on August 26 he spoke with Bunch at police headquarters. Bunch told Herigodt that he was with Miriam Mendez at the time of the incident and was a member of the Latin Kings street gang. Bunch also told Herigodt that a fellow gang member named "Lefty" had been beaten earlier that day by a group of Disciples. Bunch then went looking for the Disciples. Herigodt thereafter spoke with Bunch in the presence of an assistant State's Attorney. Bunch told them that he was at a carnival at the time of the shooting. When he heard the shots, Bunch rode by the scene on his bicycle. On cross-examination, Herigodt stated that Bunch denied any involvement with the shooting. A written statement was prepared by the assistant State's Attorney, but Bunch refused to sign it.
Assistant State's Attorney John O'Donnell testified that he spoke with both defendants on August 27 regarding the shooting. Batson gave a written statement in the presence of O'Donnell in which he stated that his friend Lefty was beaten by a group of "D's" (Disciples) with a baseball bat. Batson admitted that he was present when the victim was shot. Batson also stated that while he saw who shot the victim, and had handled the gun, he was not a "trick."
Louis Maldonado testified on behalf of defendant Batson. Maldonado stated that he was nicknamed Lefty and was a member of the Latin Kings street gang and a friend of defendants, also Latin King members. Maldonado was acquainted with the victim, who belonged to a street gang called the Imperial Gangsters. The Imperial Gangsters were friends with a third gang, the Disciples, while the Latin Kings were enemies of the Disciples. On the day of the shooting, Maldonado met Batson outside a restaurant and bicycled with him to a schoolyard where they met Bunch, Bunch's girlfriend Miriam and several other friends. As the group began to walk to a carnival nearby, several groups of guys began to chase Batson and chant "There goes Doodee." Maldonado tried to turn his bicycle around but was chased by a group of four youths wielding a baseball bat and was struck. Maldonado saw several other youths chase Batson and grab him. Maldonado could not remember if the victim was in the group. Maldonado lost sight of Batson thereafter and returned to the school where he heard that a fight was going to occur. Maldonado did not observe the fight or the shooting. Maldonado saw Batson at approximately 6 p.m. but did not speak to him. Maldonado went to a restaurant with three friends and remained there until 7 p.m.
On cross-examination, Maldonado testified that he never went to a hospital or to the police after he was struck with the baseball bat. Maldonado first heard of the shooting and of the fact that Batson had been arrested the following day. Maldonado never went to the police and told them that Batson had not been involved with the shooting.
Miriam Mendez, Bunch's girlfriend, testified that she had known Bunch for approximately 1 1/2 years. On the evening of the shooting, at 6:15 p.m., Miriam met Bunch at a grocery store near her home. The two were seated on the stairs and were talking when they heard gunshots. Bunch stayed with Miriam for approximately 45 minutes, then he rode off on Miriam's bicycle. As Bunch rode away, Miriam saw the police stop and apprehend him. Miriam stated that she was acquainted with the Cortez sisters because she had dated their brother.
On cross-examination, Miriam admitted that she told a police officer that she was with Bunch when Maldonado told him he had been beaten up. She denied telling the same officer that everyone, including Bunch, then left her on the street alone and that Bunch returned to her only after she heard the shots. She also denied telling the police that when Bunch returned, he asked for her bicycle and rode away. Miriam was not aware of whether or not Bunch was carrying a gun that evening.
Bunch testified that he was with his girlfriend Miriam on the evening of August 26 when they heard shots fired. As he left on her bicycle, he was apprehended by the police. Bunch was questioned from 6:30 p.m. that evening until approximately 5 or 6 a.m. and was handcuffed and beaten by police when he refused to sign a written statement. Bunch was asked whether he was ever arrested as a juvenile; he admitted he had been arrested at age 16 for auto theft. He denied any connection with the shooting of the victim and stated he did not give a gun to Batson and did not have a gun in his possession that day. Bunch stated that he refused to sign the statement because he did not understand it.
On cross-examination, Bunch admitted that he was a Latin King street gang member. Bunch denied telling John O'Donnell that his friend Lefty had been jumped by Disciples that previous evening and beaten with a baseball bat. Bunch also denied telling the police that he rode by the scene of the shooting and saw the victim. Bunch did not tell the police that he had been with Miriam at the time of the shooting. Bunch stated he did not know the victim. Bunch was asked whether he had been photographed by the police before and admitted that he had been photographed.
In rebuttal, Detective Schak testified that he spoke separately with Bunch and Miriam following the shooting on August 26. Schak stated that Miriam told him that Bunch left with Lefty after Lefty told him that he had been beaten. A short time later, Miriam heard gunshots and Bunch returned. Miriam told Schak she was not aware of whether or not Bunch had a gun. Schak and Herigodt spoke with Bunch later that evening. Bunch told the detectives that he left Miriam to help Lefty look for the individuals who had beaten him earlier that day. He heard gunshots and arrived at the scene, where he observed the victim lying in an alley. On cross-examination, Schak stated that Bunch never admitted he was involved with the shooting.
Assistant State's Attorney Rueckert then read to the jury a certified copy of two prior adjudications of Bunch's delinquency as a juvenile for the crimes of theft and possession of a stolen motor vehicle.
Richard Diorka, the victim's cousin, identified the victim from a photograph of five people. Diorka testified that the photograph accurately depicted the victim's identity and physical condition prior to the shooting. Diorka also identified ...