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02/21/89 the People of the State of v. Hector Garza

February 21, 1989





535 N.E.2d 968, 180 Ill. App. 3d 263, 129 Ill. Dec. 203 1989.IL.201

Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.


JUSTICE SCARIANO delivered the opinion of the court. EGAN, P.J., and HARTMAN, J., concur.


Defendant appeals his conviction of murder and sentence of 35 years' imprisonment, raising the following issues: (1) whether he was denied his right to the effective assistance of counsel; (2) whether he was proved guilty beyond a reasonable doubt; (3) whether the trial court allowed inadmissible hearsay testimony into evidence; and (4) whether he was denied a fair trial by the State's attempt to present evidence of motive and its comment on his failure to call an alibi witness.

Police officer Dubielak, the first witness called by the State at trial, testified that during the early morning hours of April 27, 1986, he received a call regarding a man shot at 2811 North Hamlin in Chicago. When he arrived at that location, he saw a girl immediately outside the door of an automobile cradling in her lap a young man who had been shot. Dubielak attempted to get a description of the offender from the girl, who was hysterical. On cross-examination, he repeated the description of the offender given to him at the scene by the girl: a male approximately 17 or 18 years of age, 5 feet 7 inches, 140 to 150 pounds, blue eyes, dark brown hair and a scar over his left brow, wearing a navy blue hooded sweatshirt, grey baggy pants, and black rocker shoes.

Donna Mikolajewski testified that she and the victim, Kenny Nuckols, had spent the evening together and were sitting in a car at the corner of Diversey and Hamlin at 3:30 a.m. when a man, later identified as defendant, approached them. Defendant said he was from Washtenaw and Glenlake and that he was a member of the Popes street gang. Donna testified that she was looking directly at him during this entire time. He repeatedly asked Nuckols what gang he belonged to, and finally Nuckols told him that he was a member of the Simon City Royals. At that point defendant walked back two or three feet, pulled out a short silver-barreled gun and fired five or six shots, the first of which missed both Donna and Nuckols; but the second one hit Nuckols, who threw himself onto Donna, while shouting to her to get down. After Nuckols was hit two more times, Donna got out of the car and ran as the assailant fired at her. She attempted to get help, but no one responded to her calls. When she heard defendant run down a gangway, she returned to the street, where she found Nuckols. The police took him to a hospital where he was pronounced dead.

That same morning the police took Donna to a station and showed her approximately 20 mug books. She picked out some pictures, but after viewing a lineup did not identify anyone.

On May 4, 1986, at 7 p.m., Donna was once again at the corner of Hamlin and Diversey when two men riding on a motorcycle shot at her. She informed the police that the person who shot at her "was very similar" to the person who killed Nuckols, and she gave the police the same description she later gave at trial in describing Nuckols' killer. On May 5, 1986, she viewed a lineup but did not see her attacker. On May 7, 1986, Donna viewed photographs and from them tentatively identified defendant as the person who had killed Nuckols and shot at her; but she positively identified him when she saw him in a lineup.

Deputy Medical Examiner Mitra Kalelkar testified that Nuckols' wounds indicated that he had been shot at close range, and that the trajectory of the wounds was consistent with his having been shot from the left side.

Daniel Noon, a gang crimes specialist with the Chicago police department, testified that during his investigation of the May 4 shooting he spoke with various members of the Gaylord gang, and on May 6, 1986, defendant, a Gaylord, surrendered himself for that incident. He told the police that, after being hit by a bottle thrown by a group of Royals, he lighted some firecrackers from the motorcycle and waved a toy gun to make it appear as if he were shooting.

Defendant testified that he is 5 feet 8 inches and 160 pounds, with dark brown hair, brown eyes and no scars on his face; that on April 26, 1986, he attended a party until approximately 1:30 a.m., when he walked home; that he had forgotten his keys, so he had to knock on his sister's window to gain entry to the house; that he went directly to his room and to sleep; that he was nowhere near the intersection of Diversey and Hamlin; and that on May 6, 1986, he voluntarily surrendered himself to the police for the motorcycle incident, even though he was not responsible for it, because he had been directed to do so by another gang member.

On cross-examination the State established that gang members do pay back rival gang members for perceived wrongs, that such pay backs can include hurting rival gang members, and that the Royals and the Gaylords are rival gangs. Defendant admitted that he was a member of the Gaylords and ...

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