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02/22/89 the People of the State of v. David Rosario Et Al.

February 22, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID ROSARIO ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

536 N.E.2d 756, 180 Ill. App. 3d 977, 129 Ill. Dec. 706 1989.IL.209

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Following a bench trial, defendants Richard Torres and David Rosario were convicted of murder and conspiracy to commit murder. The trial court sentenced Torres to a term of 34 years and sentenced Rosario to a term of 28 years. On appeal, Torres contends that he was denied a fair trial because Rosario's statement implicating him was admitted into evidence and that counsel was ineffective for failing to move for a pretrial severance. In addition, Torres contends that the trial court erred in barring his attempt to show that a prosecution witness had a bad reputation for truth in the community and that his sentence was excessive. Rosario contends he was denied effective assistance of counsel when his attorney failed to move for a pretrial severance.

Billy Dixon, an eyewitness, testified for the State that on November 13, 1984, at 9 p.m., he heard gang slogans being yelled outside. From his front door, he could see four people running from Brentano School. He identified Thomas Adachi, Stacey Crawford, Virginia Shay, and the deceased, Joe Rodriquez. About 12 other people stood in the school yard. One was shooting at the four persons who were running and who then split up and ran in different directions. The deceased ran alone down an alley. Torres, carrying a sawed-off shotgun, followed until the deceased tripped over a fence and fell on his hands and knees. Torres leaned over the fence, shot the deceased in the back, dropped the gun and ran. Dixon identified Torres in a lineup several days later.

Thomas Adachi testified for the State that he and the deceased were members of the Spanish Lords. On November 13, 1984, they saw defendants at Brentano School. Rosario carried a blue duffle bag, which he opened, revealing a sawed-off shotgun. Adachi and the deceased ran, passing 10 to 15 people standing on the corner. Defendants and a third person chased Adachi and the deceased. Rosario handed the blue bag to Torres. The third person began shooting towards Adachi with a pistol. Shay and Crawford then ran with Adachi and the deceased. When the group split up and the deceased ran alone, Torres chased and shot the deceased after he fell. Adachi identified Torres in a lineup on November 15, 1984, and identified Rosario in a lineup on January 16, 1985.

Assistant State's Attorney Robert Babbitt testified that on January 16, 1985, he and Officer Schalk took a statement from Rosario. Rosario stated that on November 13, 1984, at about 6 p.m., he and several other persons were at the home of Jimbo Bates. They planned to go out with other members of their gang and get revenge for a gang killing which had occurred two years earlier. Several other people, including Torres, arrived at Bates' home. At 8:45 p.m., they began walking to Brentano School. Torres and Bates left together, and Bates carried a blue gym bag. Rosario saw Bates place the bag in the school yard. Various people were yelling gang slogans, and Bates and Torres began chasing two people across the street. Rosario then carried the gym bag and could see that it held a sawed-off shotgun.

Rosario pulled out the gun and handed it to Bates. "I pulled it out and gave it to [Bates], at which times, [Bates and Torres] started running through the alley." Roberto Gonzales, another man with Rosario, took out a pistol and began shooting at the two men who were being chased. Rosario saw the two pursued men split up, and a short time later he heard a loud noise. He described the final events preceding the shooting. Rosario and Gonzales were

"standing on the corner. . . . And we started telling, the two guys that [Bates and Torres] were chasing, to come back, they won't come. They didn't have any guns or knives out, I didn't see any weapons. They started running and [Gonzales] pulled the pistol out of his waistband and started popping at them. The two guys split up. And a short time later, I heard a big noise. We heard the noise. [Gonzales] and me ran . . .."

Officer Jerome Bogucki testified for Rosario that after he spoke to Adachi during the investigation, he marked only one offender in the police report. He had told Rosario, however, that he had been identified as a participant in the murder.

Officer Lawrence Poli testified for Rosario that at the time of the November lineup, Torres was the only offender in custody. He was identified by Dixon and Adachi.

Daniel Beauchamp testified for Torres that he was at home at 9 p.m. on November 13, 1984, when he heard gunshots. He looked out a window and saw a man lean over the fence and shoot another man with a shotgun. Beauchamp did not see the face of the shooter. Three months before trial, Torres' counsel ...


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