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04/05/88 the People of the State of v. James Gaurige

April 5, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES GAURIGE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

522 N.E.2d 1306, 168 Ill. App. 3d 855, 119 Ill. Dec. 447 1988.IL.488

Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

The defendant, James Gaurige, was indicted for the murder of Robert Deacon. Following a bench trial, Gaurige was found guilty of voluntary manslaughter and sentenced to 15 years in prison. Because Gaurige had committed the offense of voluntary manslaughter while he was on a 30-month probation for residential burglary, the trial court found Gaurige in violation of his probation. Consequently, the trial court revoked Gaurige's probation and sentenced him to a term of five years to be served consecutively with his 15-year sentence for voluntary manslaughter. Thereafter, Gaurige appealed.

Gaurige raises several contentions on appeal. First, Gaurige contends that the trial court committed reversible error when it excluded the "911 tape." Second, Gaurige argues that his use of deadly force was reasonable under the circumstances. Third, Gaurige claims that the trial court abused its discretion when it sentenced him to 15 years for voluntary manslaughter. Fourth, Gaurige contends that the trial court again abused its discretion when it sentenced him to a consecutive five-year term for violation of probation. Fifth, Gaurige alleges that the trial court did not properly credit him for time served on probation. The following evidence was adduced at trial.

Gaurige testified to the following facts. On May 24, 1984, Gaurige attended a doubleheader baseball game at Wrigley Field. After the game, Gaurige went to the LeMoyne school yard and remained there for an hour or so with friends Robert Barrige, Bernard Banks, and Jose Sanchez. Gaurige then went to the home of Bernard Banks and remained there until it was quite late. Gaurige hired a cab to take him home. While the cab was stopped at a red light, a man, who later identified himself as Robert, jumped into the cab and began questioning Gaurige. Robert asked Gaurige if he wanted some reefer and if he wanted to make money moving furniture.

Gaurige agreed to take the cab with Robert to Robert's home on Pine Grove. When they arrived at Robert's home, the doorman opened the cab door and Gaurige and Robert proceeded into the building's lobby and took an elevator up to Robert's apartment. After they entered the apartment, Robert used his key to lock the dead bolt located on the inside of the door.

Gaurige sat down in the front room while Robert got two cans of beer from the refrigerator. Robert then reached down on the side of the table, pulled a bag of marijuana and asked Gaurige to roll it. Robert left the room and returned wearing a maroon house robe. Robert turned on the videocassette recorder and Gaurige noticed that homosexual films were playing. Robert pointed to the film and told Gaurige that he wanted to do that with Gaurige. Gaurige remained seated. Robert next proceeded to sit down next to Gaurige and grab Gaurige's thigh close to the crotch area. Gaurige pushed Robert away and started to get up, but Robert grabbed Gaurige's waist. At this time, Gaurige struck Robert with a liquor bottle.

After Gaurige struck Robert, Gaurige called 911. When the police arrived, Gaurige was unable to let them in because he could not find the key, so the police proceeded to kick in the door. Defense counsel sought to introduce Gaurige's conversation with the 911 operator (911 tape) into evidence. On the basis that the 911 tape constituted inadmissible hearsay, the trial court denied its admission into evidence.

The People first called Deacon's sister, Laura Becker, who testified to the following: About two months earlier, Becker had gone to dinner with Deacon and their mother. After dinner, all three stopped at "The New Flight," a lower class gay bar where there are a lot of male prostitutes. Deacon introduced the defendant to Becker as "Jimmy Baby." Becker stated that she knew that her brother was a homosexual.

The second witness was Nathaniel Daniel, the doorman for the building that Deacon lived in located at 3930 North Pine Grove. Daniel gave the following testimony: At about 12:30 a.m. on May 25, 1984, Daniel was at the doorman's stand. A cab drove up; Deacon and Gaurige emerged from the cab and entered the building. Approximately 20 to 30 minutes after Deacon and Gaurige entered into the building, the police arrived and told Daniel that a man called and told them that he had killed a man. Daniel unlocked the front door for the policemen. One policeman returned to inquire if Daniel had an extra key to Deacon's apartment. Daniel responded that he did not. Daniel had seen Deacon and Gaurige entering the building together on about three occasions in the two or three weeks prior to May 25, 1984.

Next, the People called Chicago police officer Jesse Valles. Officer Valles and his partner Officer Miller were called to Deacon's apartment at about 12:30 on the morning of May 25, 1984. After the doorman let them in, the policemen went to Deacon's apartment and talked to Gaurige through the door. The tone of Gaurige's voice was very calm. Officer Miller went downstairs to get another key, but he was unable to obtain one. Gaurige told the policemen that this was not his apartment and the guy who lived in the apartment was passed out on the couch.

The policemen proceeded to break in the door and enter the apartment. They observed Deacon lying on the couch with blood on his face and neck. At this point, Officer Valles placed Gaurige under arrest and informed him of his rights.

The People's fourth witness was Officer Tim McKeough, a Chicago police crime lab technician. On May 25, 1984, Officer McKeough and his partner were called to process a crime scene in an apartment located at 3930 North Pine Grove. Upon entering the apartment, Officer McKeough observed a white male lying on the couch with a faint odor of alcohol. No drugs were found in the apartment, but there was broken glass on the couch and around the victim and beer cans on the nearby coffee table.

Detective Phillip Mannion was the People's fifth witness. Detective Mannion testified that on May 25, 1984, he was assigned to investigate a homicide at 3930 North Pine Grove. At about 4 a.m., Detective Mannion interviewed Gaurige. Detective Mannion gave an account of his interview of Gaurige:

"I [Detective Mannion] asked him [Gaurige] what had happened earlier that evening. He stated that he had been visiting a friend over in the area of Broadway and Patterson and that upon leaving his house, his friend's house, he waived [ sic ] down a cab in order to go home.

He got in the cab and as the cab took off a short time later Mr. Deacon got in the cab. Once in the cab Mr. Deacon asked him if he wanted to smoke a joint, he said that he would. Mr. Deacon said that they would have to go to his apartment in order to do so.

While on the way over to the apartment, Mr. Gaurige stated that Mr. Deacon told him that before getting there they'd have to go into an alley, and once in the alley that Mr. Gaurige would have to suck Mr. Deacon's penis. Mr. Gaurige said that he won't do it but that he would still go with him to the apartment. They went to the apartment.

Once they were at the apartment they went inside, Mr. Gaurige sat down, Mr. Deacon offered him some beer, gave him a beer and turned on the TV, putting on a pornographic movie. Mr. Deacon went into another room.

Shortly thereafter he came out dressed in a robe, sat down on the couch, asked Mr. Gaurige to sit next to him, Mr. Gaurige did. Mr. Deacon then put his, his being Mr. Deacon's, hand on Mr. Gaurige's thigh. James Gaurige said at that point he got up, took a bottle that was sitting on a table in front of him and struck Mr. Deacon in the face with the bottle. Mr. Gaurige -- Mr. Deacon started to yell at which time Mr. Gaurige picked up a phone, struck him two to three more times until he stopped yelling and until he stopped moving.

After that he went -- tried to get out of the apartment, found that the door was locked and upon not being able to get out of the apartment he called the police."

The People's sixth witness was forensic pathologist, Dr. Eupil Choi. Dr. Choi testified that he performed an autopsy on Deacon. Pursuant to the external examination, Dr. Choi found a blunt one-half-inch trauma laceration on Deacon's forehead, four stab wounds on the right side of Deacon's neck, a one-quarter-inch laceration on Deacon's chest, and a two-inch defensive laceration on Deacon's right wrist. Dr. Choi concluded that Deacon's wounds could have been the result of one blow wherein the shattering glass was responsible for Deacon's additional neck, chest and wrist injuries. On the other hand, Dr. Choi stated that Deacon's wounds could have been the result of three separate blows.

Next, the People called Ken Kinkawa, an employee of Deacon's, to the stand. Kinkawa testified to the following: Deacon gave Kinkawa a ride home from work on the evening of May 24, 1984. Deacon told Kinkawa that Deacon was going to "Flight," a gay hustler bar. Later that evening, Kinkawa went to "The Loading Dock," a gay bar, and saw Deacon. ...


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