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06/08/89 the People of the State of v. Jesus Velasco

June 8, 1989





540 N.E.2d 521, 184 Ill. App. 3d 618, 132 Ill. Dec. 781 1989.IL.865

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


JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.


Following a jury trial conducted in his absence, defendant was found not guilty of murder, but guilty of two counts of attempted murder. He was sentenced to concurrent terms of 30 years on the attempted murder convictions. On appeal, defendant contends that (1) he was improperly tried in absentia ; (2) plain error occurred when the jury was incorrectly instructed on the mental state necessary to commit attempted murder; (3) he did not receive effective assistance of counsel; and (4) improper remarks by the trial Judge constituted reversible error.

At trial, Able Vega (Able) testified that at approximately 8:30 p.m. on September 29, 1984, he, Enrique Vega (Enrique), Albino Correa (Albino) and Ruben Martinez (Ruben) drove in Ruben's car from their apartment to a wedding reception in a hall near 35th Street and Western Avenue in Chicago. They left the reception at midnight and walked to the nearby vacant lot where Ruben's car was parked. When they reached the car, Ruben was next to the driver's door, Able was beside him, Albino was next to the passenger's door and Enrique was near the rear of the passenger's side of the car. As Ruben was unlocking the door, three men, followed by at least another four or five men, none of whom he had seen at the reception, approached them and said "26 Ambrose," which Able understood to mean that the men were members of the "Ambrose" gang from 26th Street. Someone then said, "You are Latin Kings," a rival street gang. Able, who formerly belonged to a different gang, responded, "We are not Latin Kings." The men nevertheless began to punch him and his companions. Two or three men struck him in the face several times but he did not fight back and could not see what was happening on the other side of the car. He then heard a few shots from the other side of the car, and as his assailants ran, he looked back and saw a man coming around the rear of the car with a gun in his hand. He identified a lineup photograph of defendant as that man. Defendant was four to five feet away when he extended his arm, pointed the gun toward him and Ruben, who was standing next to him, and fired one "hard shot" which struck Ruben in the lower left abdomen. Defendant then ran into an alley. When Able looked toward the other side of the car, he saw Albino holding his arm and Enrique lying face-up on the ground. He was unable to lift Enrique into the car because he was too heavy. Shortly thereafter, an ambulance arrived and transported Enrique, Ruben and Albino to the hospital; he accompanied the police to the police station. The following evening he viewed a lineup and identified defendant as the gunman and another man as one of the other assailants.

On cross-examination, Able stated that he and his companions did not know the persons whose wedding reception it was and had not been invited to it; they heard about it from friends and simply walked in.

Albino's testimony regarding the events prior to the shooting was substantially the same as Able's. Albino further testified that one of the men who accused them of being Latin Kings then stated that he and his group were "King Killers" and displayed the "[Latin] King Killers" hand signal. Although he and his friends denied being members of any gang, the men began punching Able. Meanwhile, 8 to 10 more men approached and surrounded the car. One of them began punching him and said "we are Ambrose of 26th and don't forget that." He heard three shots from his left side toward the rear of the car, whereupon his assailant stopped hitting him. He looked toward Enrique, who was standing near the rear of the car surrounded by at least six men and saw a hand six or seven feet away from him reach out with a small, dark gun and fire a shot, at which point most of the men began running away. The man with the gun, however, went around the rear of the car toward the driver's side. Albino ducked down alongside the car and then heard one last shot. After the crowd had dispersed, he stood up and saw Enrique lying on the ground. He then realized that he had also been shot. When the police arrived, they took him to a hospital where he underwent surgery for injuries from the bullet, which passed through his left arm and entered the left side of his chest.

On cross-examination, Albino stated that he did not have anything to drink before or at the wedding reception, and although the men who initiated the fight had also been at the reception, no one bothered or threatened him or his friends while they were there. He was unable to describe the gunman's face but recalled that he had a heavy build, was approximately 20 years old and 5 feet 9 inches or 5 feet 10 inches tall.

Ruben's testimony was also essentially the same as Able's and Albino's regarding the events that occurred and the description of the gunman. Ruben further testified that the gunman aimed the revolver and shot him in the stomach from a distance of four or five feet; and he identified defendant from a lineup photograph as the man who shot him. Ruben was hospitalized for two or three weeks during which time he underwent two surgical procedures necessitated by the bullet wounds.

Assistant Medical Examiner Yuksel Konakci testified that his post-mortem examination of Enrique revealed abrasions on the face and arms resulting from blunt trauma consistent with being punched. He concluded that Enrique died from wounds caused by a bullet which entered the left chest area and lacerated the stomach, liver, right lung and heart.

Officer Dennis Maderak, a gang crimes specialist, testified that he and his partner were riding in their squad car near 35th Street and Western Avenue when he saw a bottle being thrown and 20 to 25 people running toward a vacant lot. He then heard four shots and saw people running back toward the reception hall. They drove the squad car across the street, and as they were questioning some individuals whose car they had stopped, they saw Martin Velasco, defendant's brother, driving away in a car they recognized to be defendant's. They stopped him for questioning but were interrupted by an unidentified man who said that a man with a gun was hiding in some nearby bushes. When they reached the car, he saw two men on the ground bleeding and another man leaning against the car, bleeding from his mouth. They did not see anyone with a gun. The following evening, defendant was found hiding in a friend's apartment and arrested.

Detective Thomas O'Connor testified that the following day, he recovered a bluesteel, .32-caliber revolver with a black plastic handle from an alley approximately 50 yards from the scene of the shooting. It contained two bullets and four expended cartridges. When defendant was brought in for questioning, he at first denied any involvement in the shooting, stating that he was at his girlfriend's home at the time. However, later that evening, after being advised of conflicts between his alibi and statements made by his girlfriend and her mother, he admitted the shooting and agreed to give a written statement to an assistant State's Attorney. He and some fellow officers then gave defendant some pizza and a soft drink in a cup and left the room. A few minutes later, they heard a thumping noise and, upon entering the room, saw that defendant, who was lying on the floor, had broken the glass cup and slit his left wrist with a piece of the handle. Defendant had also written messages on the wall and on a napkin stating, in substance, that he was "sorry" and wished "it never happened." They transported defendant to the hospital for treatment and then, at about 10 p.m., returned him to the police station where he made a court-reported statement to Assistant State's Attorney David Stoioff.

Stoioff testified that defendant was coherent and said he felt fine prior to making his statement. In that statement, which Stoioff read to the jury, defendant said that on the evening of the shooting, he had taken enough PCP "to get blown" and also smoked some marijuana. The combination of the drugs caused him to feel as if he were "moonwalking." He left his girlfriend's house at about 11:30 p.m. and drove to the wedding reception to find his brother, Martin, and drive him home because he knew, as a former gang member, that trouble sometimes erupted between invited and uninvited members of rival gangs at such events. When he arrived at the hall at about midnight, he noticed a crowd of people shoving, pushing and punching each other. He left his car running and double-parked on the street and ran toward the fight to look for Martin. As he was running, someone wearing a blue sweater thrust a small dark gun into his stomach area in a football-passing gesture. He juggled the gun as he continued to run but eventually gained control of it in his right hand. He considered putting the gun into his pocket but decided to carry it "in case something happened." He pushed through the crowd to the car and saw a few people standing against it. The person next to the driver's door then reached into his pocket. Not knowing whether the man was reaching for a key or a weapon, he said he didn't take any chances; he pointed the gun in the man's direction from about six feet away and started shooting "low down and level" in a "crazy wild," horizontal, swinging motion. He intended only to scare the man away, not to hurt him. He believed that he had fired only two shots and recalled hearing another shot from somewhere in the area. He did not see the bullet(s) hit the man nor did he see anyone fall. The other men were still standing side by side in the center of a crowd on the other side of the car. Suddenly, everyone began to run. He stood there for a moment in shock and then ran into an alley where he dropped the gun. As he was running, he saw some men holding bats coming toward him in a white Mustang, but a friend, Carlos, picked him up before he was "jumped" by the men.

Stoioff also identified photographs of the apology defendant had written on the wall as well as the message on the napkin, which read, "I am sorry for what I did. I really did not mean to do it. Believe me, I feel hurt. Thank you for everything, for trying to help. Tell my girlfriend I love her and son [ sic ]."

Martin Velasco testified for the defense that he arrived at the wedding reception with some friends and fellow members of the "Ambrose 26" gang, between 10 and 10:30 p.m. and left at about midnight. Four men whom he did not know, and a group of Ambrose 26 members also left the reception and walked toward the vacant lot. He then noticed defendant's car running and double-parked outside the hall. He walked toward the lot and saw the two groups of men fighting, "like a rumble." He ran back to defendant's car and got in it. He then heard four to six shots and saw defendant among the group of people running away from the lot. He drove defendant's car around the block two or three times and then stopped to speak with the police.

Defendant entered a plea of not guilty at his arraignment on December 7, 1984, and, on January 23, 1986, posted $25,000 bond. On February 4, he and his attorney appeared at a court proceeding at which trial was set, by agreement, for March 10. Defendant was then admonished as follows:

"THE COURT: Do you understand, Mr. Velasco, that you are now on bondif on the 10th you should not be present your case would be tried anyway, do you know that?, DEFENDANT: I understand.

COURT: Before a jury. And if the jury found you guilty, you would be sentenced and thereafter when you were apprehended you would be brought directly to a penitentiary if that were the case, you would not come back to court. So, in other words, your case would go on whether you're here or not. So have that in mind."

On March 10, 1986, defendant failed to appear for trial. Defense counsel informed the court that defendant's parents had received a note from defendant indicating his intention to leave the jurisdiction and requested that the case be held on call for at least one day to allow counsel to attempt to locate defendant. The trial court granted the State's motion for bond forfeiture and issuance of an arrest warrant and, on the State's suggestion, continued the case for two days. When defendant did not appear on March 12, the trial court ruled, over defense counsel's objection, that defendant would be tried in absentia. Jury selection commenced on March 13, and on March 17, defendant was acquitted of the murder of Enrique but found guilty of the attempted murders of Albino and Ruben. The trial court denied defense counsel's post-trial motion and, following a hearing, sentenced defendant to concurrent terms of 30 years on each attempted murder conviction. This appeal followed.

Defendant first contends that he was improperly tried in absentia because notice of the trial date was not sent to him by certified mail as is required by statute. He maintains that he is therefore entitled to a new trial.

It is fundamental that an accused has the right to be present at all stages of his trial and to confront witnesses against him and that this right can be waived only by the defendant himself. (People v. Owens (1984), 102 Ill. 2d 145, 464 N.E.2d 252; People v. Steenbergen (1964), 31 Ill. 2d 615, 203 N.E.2d 404.) However, a defendant may not prevent his trial by voluntarily absenting himself from it, and where a defendant has been released on bond, he has not only the right but the duty to present himself for trial. (Steenbergen, 31 Ill. 2d 615, 203 N.E.2d 404; People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634; People v. Burns (1983), 117 Ill. App. 3d 123, 453 N.E.2d 21.) To allow a defendant to impede trial proceedings by absenting himself therefrom would permit him to benefit from his own wrong (Steenbergen, 31 Ill. 2d 615, 203 N.E.2d 404). Thus, a defendant's voluntary absence from the court is deemed a waiver of his right to be present and permits the court to proceed with trial in the same manner and with like effect as if he were present (Davis, 39 Ill. 2d 325, 235 N.E.2d 634), providing that defendant's constitutional rights have been protected.

Illinois has enacted a legislative scheme designed to ensure that a trial in absentia is not held unless a defendant has made a valid waiver of his right to be present at trial and confront witnesses against him. (People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.) Section 113-4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 113-4(e)) (the Code) requires:

"If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he . . . is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence."

The circumstances under which a trial in absentia may be held are then set forth in section 115-4.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(a)), which provides in relevant part:

"When a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. . . . Trial in the defendant's absence shall be by jury unless the defendant had previously waived trial by jury. . . . If trial had previously commenced in the presence of the defendant and the defendant willfully absents himself for two successive court days, the court shall proceed to trial. . . . The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial."

Relying primarily on People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1092, defendant argues that the requirement in section 115 -- 4.1 of notice by certified mail of a trial in absentia is mandatory and that the failure to comply therewith is reversible error. He maintains that because notice by certified mail of his trial date was not sent to him, he is entitled to a new trial. We disagree.

In Williams, the defendant pleaded not guilty at his arraignment after which the case was set for trial readiness call on April 14 and for jury trial on April 21. When Williams did not appear for the April 14 readiness call, it was rescheduled for April 17 and his counsel was to provide Williams with notice at the address shown on his bond form. When Williams failed to appear again on April 17, the trial court granted the State's motion to proceed with trial in absentia on April 30, ordered a warrant for Williams' arrest and that the clerk of the court send notice of the new trial date to Williams. On April 29, the court learned that special notice of the new trial date had not been sent to Williams and, thus, directed the State's Attorney's office to attempt to personally serve defendant with special notice of the trial. The following day, notice of defendant's bond forfeiture was sent by certified mail but was returned marked "Moved, Left No Address." The court was advised that attempts to serve Williams with special notice had been unsuccessful because Williams had allegedly vacated his apartment two months earlier and moved out of State. Williams was then tried, found guilty and sentenced in absentia.

Citing People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152, for the proposition that notice of a trial in absentia by ordinary mail is not an adequate substitute for notice by certified mail, the Williams court declared that certified mail notice of a trial in absentia is mandatory under section 115 -- 4.1 and that the failure to comply with that requirement was reversible error necessitating a new trial. We do not reach the same Conclusion in the case at bar.

First, we believe that the Watson decision does not serve as direct support for the holding in Williams because the facts of those cases are clearly distinguishable. In Watson, after the entry of defendant's plea of not guilty at his October arraignment, the trial court set the case "for jury trial on the January jury call." (Watson, 109 Ill. App. 3d at 883.) Following the arraignment proceeding, a written order was entered by the court and sent by regular mail to Watson, stating that the case was set for jury trial on January 11. When Watson failed to appear on that date, he was tried in absentia and found guilty of burglary and theft. On appeal, the Watson court noted that the provisions of sections 113 -- 4(e) and 115 -- 4.1 were enacted to ensure that such a trial would not be held unless the accused made a valid waiver of his right to be present at trial. The appellate court then reversed Watson's convictions, on the grounds that "[the] trial court's statement at Watson's arraignment that the case was 'set for jury trial on the January jury call' was insufficient to set the date in open court in defendant's presence" (109 Ill. App. 3d at 283), and that section 115 -- 4.1 therefore required that Watson be sent notice of that date by certified, not ordinary, mail. In other words, the certified mail requirement was triggered in Watson because the specific trial date, January 11, was not set in open court in Watson's presence. It was the absence of actual notice in the manner provided for in the statute which formed the basis of the Watson ruling that certified mail notice was required.

In the instant case, defendant was personally present in open court when the specific trial date was set. Thus, we do not agree, nor do we read Watson as holding, that additional notice by certified mail was required under section 115 -- 4.1. To the extent Williams holds otherwise, we respectfully decline to follow that decision.

Moreover, the Watson court specifically noted that Watson was not admonished of his right to be present at trial or of the consequences of his failure to appear. Neither is there any statement in Williams or facts from which we can infer that the trial court admonished Williams, at the arraignment proceeding when his case was set for trial, that his failure to appear on that date could result in his being tried in absentia as is required by section 113 -- 4(e). In contrast to those cases, it is undisputed in the instant case that defendant was admonished that if he failed to appear on March 10, trial would proceed in his absence and that he affirmatively responded "I understand." Having been present in open court when his specific trial date was set and having been apprised of his right to be present and the consequences of his failure to appear, we find that there was compliance with the protective requirements of sections 113 -- 4 and 115 -- 4.1, and that the trial was therefore properly conducted in defendant's absence.

We are not persuaded otherwise by the fact that trial was continued for two days. Section 115-4.1 does not require repeat notice, by certified mail or otherwise, where the defendant was present in open court when the original trial date was set. The continuation of trial for two days, which is mandated only "if trial had previously commenced in the presence of the defendant" who thereafter willfully absents himself from it (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(a)), was merely an additional safeguard of defendant's right to be present at trial which was ordered by the court, on the State's suggestion, to allow additional ...

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