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02/15/89 the People of the State of v. Bolivar Benabe

February 15, 1989





535 N.E.2d 949, 180 Ill. App. 3d 235, 129 Ill. Dec. 184 1989.IL.183

Appeal from the Circuit Court of Cook County; the Hon. Themis N. Karnezis, Judge, presiding.

Rehearing Denied March 29, 1989.


PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and WHITE, JJ., concur.


Defendant, Bolivar Benabe, was charged with two counts of murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2)), two counts of attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4), two counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), and three counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, pars. 12-4(a), (b)(1), (b)(8)). Challenging the constitutionality of his warrantless arrest, he filed motions to suppress his confession. Following a hearing, the motions were denied. Defendant then was convicted of murder, attempted murder, and aggravated battery after a jury trial in the circuit court of Cook County, and he was sentenced to serve concurrent prison terms of 33 years for murder and 25 years for attempted murder. On appeal, defendant contends that his confession should have been suppressed because his warrantless arrest was not justified by any exigent circumstances which would have obviated the need for a warrant. He contends further that the pattern jury instruction on voluntary manslaughter incorrectly set forth the State's burden of proof and was prejudicially erroneous. Finally, he contends that the admission of hearsay evidence also was reversible error and was exacerbated by the State during closing arguments.

About 11 p.m. on August 24, 1985, Neal Summit was fatally shot and his brother-in-law, Donald Roedersheimer, was shot and wounded in an alley near Hamlin Park in Chicago, Illinois. Hamlin Park is located within two blocks of the Lathrop Homes, a public housing project where defendant lived with his mother at 2960 North Clybourn.

Roedersheimer testified at trial that he was a passenger in a pickup truck being driven on Damen Avenue by Summit. When they turned onto Wellington, the truck was pelted with bricks and bottles. Summit then drove into Hamlin Park to try to escape because a car was blocking their way on Wellington. However, benches blocked their way in the park, and they then made a U-turn out of the park. Summit lost control of the truck when he was struck by an object hurled through his open window. Roedersheimer then noticed an individual riding a bicycle and told Summit, "[Look] out, you are going to hit him." The rider managed to get off the bicycle in time but the truck hit the bicycle, which became attached to the front end of the truck. When Summit repeatedly shifted the truck backward and forward in order to dislodge the bicycle, the truck struck a car and tipped over. Summit then told Roedersheimer to jump out. Roedersheimer started to run, but Summit called him back and threw a bag of tools and clothing to him. They then ran down the street and into a dark alley. About two blocks into the alley, Roedersheimer heard a "flurry of shots, like the Fourth of July," and was struck by at least two bullets. He did not see Summit. Finally, Roedersheimer denied that he was a member of a street gang.

Richard Selover happened to be sitting in a parked car near 2231 West Wellington at the time of the crime. He testified at trial that he saw the victims' truck proceeding the wrong way down Wellington, which was one-way, eastbound street. At that time no one was chasing the truck, which was dragging a bicycle. The driver of the truck then backed up, dislodging the bicycle, before he turned, hit a car, and the truck tipped over. Two occupants emerged from the truck and ran down the alley. Selover testified that three persons, one of whom was on a bicycle, chased the victims down the alley. Selover testified further that the individual on the bicycle appeared to have "a weapon, like a gun or something" in one of his hands. The other hand was on the bicycle. Selover did not actually see a gun. When the individual on the bicycle turned into the alley, he left the bicycle in an empty lot. Another individual who was running appeared to have a bag which was shaped like a gun. About a minute later Selover heard at least four gunshots and saw everyone scatter. He was unable to recognize any of the persons involved.

About 11 p.m. Chicago police detectives O'Brien and Cole responded to a report concerning the shootings. O'Brien testified that he found Roedersheimer leaning against a tree and Summit lying on the ground. An open folding knife was recovered near Summit's body. O'Brien indicated that the alley where the shootings occurred was very long, extending Wellington to Barry with no intersecting alley. A bicycle was found at the mouth of the alley near the pickup truck.

About 9:30 or 10 a.m. on August 26, 1985, Chicago police detective O'Leary was assigned to investigate the shootings, and he spoke to Danny Greco at that time. The trial court sustained defense counsel's objections to the State's questions as to whether Greco supplied O'Leary with the alleged offender's nickname. After speaking to Greco, O'Leary consulted Chicago police detective Brennann, who specialized in gang crimes.

Brennann testified that he was assigned to assist in the investigation about 11 a.m. O'Leary asked him to check a nickname in the gang file. Brennann then looked up the nickname "Little Jap" in the file on the Insane Deuces street gang but did not find any information. After Greco supplied further information, Brennann and O'Leary, along with three other officers, O'Quinn, Martinez, and Thiel, went to defendant's home at 2960 North Clybourn. We will describe the events at defendant's home in connection with our Discussion of the motion to suppress. For the present, however, it is sufficient to note only that defendant was taken to the police station at Belmont and Western, where he eventually supplied a written confession to Assistant State's Attorney Michael J. Kelly, who testified at trial concerning defendant's confession. Defendant told Kelly that he was a member of the Deuces gang, which was feuding with a rival gang called the Simon City Royals. He and Greco were drinking scotch with friends in Hamlin Park when defendant saw a pickup truck speeding toward them. Defendant claimed that the two occupants in the truck indicated that they were members of the Royals. As the truck drove away, defendant stated, "Deuce love." The truck then swerved as if to hit a couple crossing the street, and then drove onto the baseball diamond. Defendant rode a bicycle to the parking lot of the Lathrop housing project to summon help from the Kings, who were allies of the Deuces. However, defendant told Kelly that when he reached the parking lot, only some girls were there. He then cut through the parking lot to get a small pistol from the gang's "stash." The pistol he wanted was missing so he "grabbed" a .38 caliber revolver instead.

Defendant then returned to the park and saw Danny Greco throwing a bottle at the truck. Defendant asked where the occupants were, and Danny Greco replied that they were in the alley. When defendant turned the corner, he noticed the overturned truck in the middle of the street. Defendant "peeked" down the alley to see how far away the occupants were. With the gun in his hand, defendant told Danny Greco, "[Let's] get these motherfuckers," and they ran down the alley, intending only to "scare them off." Defendant saw the victims slow down and straighten their clothes in preparation to walk out of the alley. Defendant was 10 feet away when he said, "[Hey]." When one of the victims turned around, defendant saw him flash a "shiny thing" in his hand. Defendant then "just quickly got up the gun and pow, pow, pow, kept shooting." Defendant stated that he shot "without hesitation" and admitted that he fired up to five times. He then saw one of the victims fall. After defendant froze momentarily, he ran away. When he reached the ...

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