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08/05/88 the People of the State of v. Nelson Padilla

August 5, 1988





527 N.E.2d 700, 173 Ill. App. 3d 357, 123 Ill. Dec. 237 1988.IL.1229

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.


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


Following a bench trial, defendant was found guilty of aggravated battery and was sentenced to serve a term of four years. On appeal he contends that he was prejudiced by the State's failure to disclose in pretrial discovery the name of an investigating officer who testified at trial, by the admission into evidence of certain irrelevant hearsay testimony and by evidence of his prior criminal conduct.

Ricardo Rosario and Modesto Reyes testified that shortly before 9 p.m. on January 25, 1985, they left the McDonald's restaurant located at Milwaukee and Western with their friend, Reynaldo Colon, and walked north on Western to Dickens, where they turned right. As they were walking east on Dickens on the south side of the street, they saw a small blue Datsun sports car slowly emerge from an alley on the opposite side of the street, immediately west of Oakley. Although it was dark and the car's headlights were on, they recognized the passenger, Nelson Padilla, who had attended high school with them and frequented their neighborhood. Neither witness, however, could identify or describe the driver.

Rosario and Reyes testified further that the car stopped and the headlights were turned off. Defendant then stepped out of the vehicle, walked around the passenger side door, pulled a gun from his waistband and pointed it at them. Defendant was standing directly under a streetlight which was 15 to 20 feet from them. Rosario immediately began to run toward Oakley, while Reyes "froze" momentarily. Both witnesses heard a gunshot. Rosario cried out that he had been shot, felt a pain in his back and fell down on the sidewalk. Reyes saw defendant jump back into the sports car, which then drove in reverse through the alley. Reyes and Colon helped Rosario walk to a nearby hot dog stand where they called the police.

Rosario and Reyes stated that they told the police that Rosario had been shot by defendant, Nelson Padilla, that Padilla's nickname was "Baby Face Nelson" and that he had been riding in a small blue Datsun sports car. Defendant belonged to the "Latin Lovers" street gang; Reyes and Colon were members of the "Spanish Lords," a rival gang. Rosario was not affiliated with any gang.

Officer Ribado responded to a call of a man shot at Sammy's Red Hots at 2345 West Armitage. Upon arriving at that location, he found Rosario, who had been shot in the back, Reyes and Colon, and interviewed all three of them. Over defense counsel's objection, Ribado, who was not listed as a potential witness in pretrial discovery and was not named in any police reports, was allowed to testify that Rosario, Reyes and Colon told him that the offenders were two white male Hispanics, approximately 18 or 19 years old; that they were riding in a blue-colored Datsun; that the gunman's name was Nelson Padilla; that Padilla's nickname was "Baby Face Nelson"; that he was 5 feet, 8 inches tall and weighed 125 pounds; that he was a member of the "Latin Lovers" street gang; and that he had pointed a blue-steel handgun at Rosario. Ribado did not know which of the three witnesses described the weapon.

Ribado did not take any notes of his interview with the witnesses and did not prepare or sign any reports concerning the shooting. The parties stipulated that there was no description of the second offender in the police report prepared by Officer Bosnyak, who spoke with the officers who had interviewed the witnesses. A flash message based on the information Ribado received was then transmitted on the police radio.

Officer Manuel de la Torre monitored the message and arrested defendant and another man at 9:15 p.m. on the night of the shooting as defendant was parking his car a few blocks from the scene of the crime. De la Torre searched the vehicle and found a zipgun in the glove compartment.

At the preliminary hearing, Rosario described the weapon used in the shooting as a zipgun, which was a small "pen-[like]" gun approximately six inches in length. Rosario had seen the zipgun in defendant's possession on several previous occasions. The parties stipulated, however, that the bullet removed from Rosario's back could not have been fired from a zipgun and had not been fired from the gun recovered from defendant's car. At trial, Rosario stated that he did not know whether the weapon was a zipgun; Reyes testified that defendant had used a revolver but he admitted that he had not described the weapon to the police following the shooting.

Rosario and Reyes testified that outside the courtroom at his preliminary hearing on February 13, 1985, defendant threatened Colon, stating, "It was you I wanted, punk, and if you testify I am going to get my boys after you." Two defense witnesses, Donald Hutchens, an executive director of the Chicago Boys' Club, and Millie De Roeck, the assistant principal of Roberto Clemente High School, who accompanied defendant to the preliminary hearing, denied that any such threat was made. According to Hutchens and De Roeck, Rosario, Reyes, Colon and a fourth youth were making "gang gestures" at defendant. Rosario and Reyes, however, testified that defendant was by himself when he ...

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