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03/23/89 the People of the State of v. Angel Lopez

March 23, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ANGEL LOPEZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

536 N.E.2d 922, 181 Ill. App. 3d 216, 129 Ill. Dec. 872 1989.IL.394

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. PINCHAM and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant Angel Lopez appeals from his conviction for voluntary manslaughter and subsequent five-year sentence. In October 1984, defendant was arrested in West Palm Beach, Florida, where he was living, and confessed to the 1978 killing of 17-year-old Roberto Melendez. After his arrest and questioning, he was returned to Chicago.

According to defendant's testimony, one evening in August 1978 he went to a Boys' Club after leaving work around midnight. Later he and two friends drove to "Latin King turf" and asked Roberto Melendez to sell them some marijuana. Melendez refused three times and then pulled out a gun, threatening to shoot. As defendant and his friends drove away, Melendez shot three times, hitting the car and windshield. Defendant states that he was scared and mad. The next day, fearing gang retaliation, defendant put his father's .22 rifle in the trunk of his car for protection. At the Boys' Club, defendant was told that Melendez had threatened to get him.

Afterwards, as defendant drove through the Humboldt Park area on his way to work, he saw Melendez and several other persons, none of whom testified, on a porch with gang slogans painted on it. Melendez allegedly made an obscene gesture and drew a gun. Several blocks away, defendant stopped the car and retrieved the gun from the trunk, drove back past the house, and shot at the group three or four times "trying to scare him off." He stated that he was very frightened and had no intention of killing anyone. Melendez died several days later and defendant and his brother fled to Florida to escape gang retaliation. Shortly thereafter, defendant's family and girlfriend (now his wife) followed him to Florida for the same reason.

Defendant additionally testified that he was afraid of gangs in general and of "Mad Dog" Melendez in particular. He said that he had once hung around with a group called the "Latin Jivers" but had never been a gang member.

There was testimony from five witnesses, including defendant's Florida employer of four years, that he was a hard-working, honest family man who was peaceful and nonviolent. Defendant had no past criminal record. Melendez' father testified that the victim, a high school student, was not a gang member and had never been in trouble before. The State also introduced evidence indicating that "Mad Dog" Melendez and the victim were not the same person and that the victim had never been arrested.

Defendant was tried before a jury for murder. On cross-examination of defendant, the State questioned him about his failure to mention to the Florida authorities certain aspects relevant to his assertion of self-defense at trial. The jury was given instructions for murder, both types of voluntary manslaughter, and involuntary manslaughter, thereafter finding defendant guilty of voluntary manslaughter. Defendant was subsequently sentenced to five years' imprisonment.

On appeal, defendant contends that his due process rights were violated by the State's references to his post-arrest failure to state various details included in his trial testimony, that he was denied a fair trial by prosecutorial misconduct during closing arguments, and that he was improperly sentenced for several reasons. We affirm.

Defendant first argues that it was error for the State to refer to his post-arrest silence regarding his self-defense claim because there was no threshold inconsistency between defendant's testimony and his pretrial statement. The State contends that defendant's statement, given in Florida, occurred before his arrest and, thus, there could have been no constitutional violation by the prosecutor's cross-examination regarding defendant's silence as to his later assertions of self-defense. However, we do not need to resolve this issue since we agree with the State that there were material inconsistencies between the Florida statement and defendant's trial testimony.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, it was held that due process precludes impeachment by cross-examination of a defendant's exculpatory testimony offered for the first time at trial when he had failed to offer the explanation to the police after having been arrested and advised of his constitutional rights. However, an exception to this rule occurs if a defendant's exculpatory testimony is inconsistent with statements he made after being advised of those rights. (Anderson v. Charles (1980), 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180.) In other words, when a defendant does not remain completely silent after being advised of his Miranda rights, his failure to ...


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