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03/17/89 the People of the State of v. Nicholas Devalle

March 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

NICHOLAS DEVALLE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

538 N.E.2d 129, 182 Ill. App. 3d 1, 130 Ill. Dec. 918 1989.IL.334

Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. COCCIA, J., concurs. JUSTICE PINCHAM, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Following a joint bench trial, defendant was found guilty of attempted murder and sentenced to 14 years in prison. On appeal, defendant contends that the trial court erred in considering facts not in evidence and that the State's evidence was flawed.

At the trial there was testimony from Jesus Rodriguez, the victim, defendant and defendant's girlfriend, Annette Muniz. Rodriguez testified that on August 28, 1986, he saw a black Oldsmobile Delta 88 drive past while he was standing on the corner of California and Hirsh in Chicago. Rodriguez stated that there were four men in the car, and he identified the driver of the car as defendant. He also identified one of the passengers in the back seat as co-defendant Arturo Delfi.

After the car drove away, Rodriguez returned to 1437 North California to wait for his mother. Approximately one-half hour later, while standing outside waiting, Rodriguez saw the black Delta 88 driving down California Avenue. The car came to a stop about 25 feet from Rodriguez, whereupon the person in the front passenger's seat made a sign with his hand and shouted "Latin Kings." Rodriguez responded by saying "[fuck] you." At that point, the front-seat passenger took a gun from the glove compartment and fired three or four shots, striking Rodriguez once in the chest. Rodriguez was taken to the Cook County Hospital, where he received treatment.

Annette Muniz testified for the defendant. Muniz stated that she and defendant were dating and that she had known him for about one year. According to Muniz, she and defendant were sleeping at their friend's house when this incident occurred.

Defendant also testified at the trial. He stated that he was no longer a "Latin King" and that he owned a black Delta 88, but he did not have it on the day of the incident. According to defendant, he was arrested on August 23, 1986, for driving without a license. The next morning he discovered his car had been stolen. Defendant, however, did not report the theft to the police. He claimed that he did not make out a police report because he did not have a title to the car. Defendant denied being involved with the murder attempt.

Following the trial, defendant was found guilty as charged. Codefendant was found not guilty.

On appeal, defendant contends that the trial court erred in considering facts not in evidence. Defendant maintains that the trial court's comments that defendant did not surrender and that defendant made certain comments to the police about the shooting were facts not in evidence. Defendant, therefore, claims that he was entitled to a new trial. We disagree.

While it is true that in a bench trial it will be presumed that the trial Judge considered only competent evidence (People v. Robinson (1964), 30 Ill. 2d 437, 197 N.E.2d 45), this presumption is overcome if it affirmatively appears from the record that the improper evidence was considered by the court. (People v. Cepolski (1979), 79 Ill. App. 3d 230, 398 N.E.2d 351; People v. Grodkiewicz (1959), 16 Ill. 2d 192, 157 N.E.2d 16.) In this case, we find that it is not affirmatively apparent from the record that the trial court considered incompetent evidence. Clearly, there was sufficient evidence outside of the court's comments to convict defendant. Moreover, it does not affirmatively appear from the record that the trial court considered improper evidence, especially when defendant was found guilty on January 27, 1987, and the comments in question were made on April 2, 1987. Therefore, for the above reasons, we see no reason to disturb the trial court's judgment.

Defendant further maintains that his conviction should be reversed because the circumstantial evidence against him was flawed. Defendant argues that the State did not present sufficient evidence to prove him guilty by accountability. Ill. Rev. Stat. 1987, ch. 38, par. 5-2(c).

In People v. Cawley (1979), 77 Ill. App. 3d 780, 396 N.E.2d 865, this court held that although a defendant does not directly and personally murder the victim, he could be held accountable for such murder where he solicited, aided, abetted or attempted to aid codefendant in planning the commission of the offense. Moreover, defendant's participation must occur before or during the commission of the offense with concurrent specific intent to promote or facilitate commission of the offense. People v. Cawley (1979), 77 Ill. App. 3d 780, 396 N.E.2d 865.

In People v. Daniels (1977), 51 Ill. App. 3d 545, 366 N.E.2d 1085, the court found the driver of a getaway car accountable. Also, in People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121, the court stated that when the plan, express or implicit, calls for a person to sit in a car while the crime is being committed and then spirit the others away from the scene, the driver's participation is deemed to occur during the commission of the crime, not after. In addition, proving defendant's specific intent to promote or facilitate the commission of the crime may be inferred from the circumstances surrounding the commission of the act. See People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480.

We note that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant's guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The relevant inquiry is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

After viewing the evidence in a light most favorable to the prosecution, we see no reason to disturb the judgment of the trial court.

Accordingly, the judgment of the circuit court is affirmed. As part of our judgment, we grant the State's request and assess ...


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