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08/16/89 the People of the State of v. Jose Rodriguez

August 16, 1989





543 N.E.2d 324, 187 Ill. App. 3d 484, 135 Ill. Dec. 89 1989.IL.1260

Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.


PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE and CERDA, JJ., concur.


After a bench trial, defendant, Jose Rodriguez, was found guilty of aggravated battery, armed violence and unlawful use of a weapon by a felon as a result of the shooting of the victim, Edward Cervantes. Defendant was sentenced to six years' imprisonment on the armed violence offense, which merged with the aggravated battery conviction, and a concurrent five years' imprisonment on the unlawful use of a weapon offense. He appeals his aggravated battery and armed violence convictions.

Edward Cervantes testified to the following for the State. On October 23, 1986, around 1 a.m., he and about seven fellow members of the Latin King Cobras street gang were passing the intersection of 107th and Calhoun Streets in Chicago on their way to buy liquor. The Cobras had left a wake of a fellow gang member at approximately 10 p.m. the preceding evening and had thereafter begun drinking beer and schnapps. As they approached the intersection of 107th and Calhoun, the Cobras saw four or five other youths, including defendant and Andrea and Mario Espinoza, on the southeast corner. At that time, defendant ran downstairs and Mario ran upstairs into a walk-up at 10703 S. Calhoun. When the Cobras reached the youths remaining at the intersection, they began shaking hands with them. However, Andrea Espinoza went up to Cervantes, shoved him and told him to get the hell out of there. Cervantes and Andrea then began fighting. Within a few seconds, Andrea turned and ran into the same walk-up as defendant had gone into earlier.

Not being deterred by Andrea's flight, Cervantes gave chase. However, he was stopped short by the appearance of defendant and Mario, who were carrying shotguns. Cervantes, who was then about eight feet away from the pair, began to back away from them. While he was doing so, defendant shot his weapon twice. The first shot hit the ground in front of Cervantes. The second round hit Cervantes in the right thigh. Neither Cervantes nor any of his friends were armed with any weapons. The area of 107th and Calhoun was turf of a street gang called the Party People Organization, of which the Espinozas and two of the boys with them, Omar Diaz and "Andy," were members. Two of Cervantes' cohorts, Rodney Roberts and Louis DeLeon, substantially corroborated his version of the shooting, the latter in rebuttal.

Chicago police officer Mike Migliano also testified for the State. After the officer arrived at the scene, he arrested defendant, who was lying on the roof of the building adjoining 10703 South Calhoun. After being transported to the police station, defendant admitted shooting Cervantes because he feared that Cervantes was going to harm him. However, defendant did not tell Migliano that Cervantes had a weapon. Defendant also admitted having buried the shotgun in his backyard. Thereafter, Migliano transported defendant back to the scene and recovered the shotgun from under some shrubbery and dirt.

Andrea Espinoza, called as a witness for Mario, who was tried jointly with defendant, gave the following testimony relevant to the State's case against defendant.

Mario and Andrea left work at midnight on October 22, 1986. After they arrived home, two boys approached Mario, Andrea and a couple of their friends. One of the two, who was a Latin King Cobra, began "flashing" a gun in his belt. While Mario and Andrea were standing in front of their apartment, some other boys emerged from the "projects" across the street and threatened to get them because they were insulting their dead friend. Cervantes then began hitting Andrea with a chain. As soon as Andrea was hit, he fell to the ground and covered his head with his hands. Other people then began to hit and kick him. The beating lasted two to three minutes. While he was being beaten on the ground, Andrea heard two gunshots. Thereafter his attackers ran off. Neither Andrea, Mario nor defendant belonged to any street gang. Defendant was not outside with Mario, Andrea and their friends. Andrea surmised that Cervantes was one of the boys who was beating him when the gunshots rang out but subsequently retracted this statement. Andrea received only bruises from the beating and did not seek medical treatment. He did not see defendant with a shotgun that night. While they were beating him, Andrea could see the Cobras holding cans of beer.

Defendant's wife, Leticia, testified that defendant, who had been home since 6 p.m., and she were watching television in their basement apartment at 10703 South Calhoun on October 23, 1986, at about 1 a.m. At that time, they heard a loud commotion outside. Defendant looked out and told Leticia there was a bunch of people outside. Defendant then went to their bedroom, pulled a gun from under the mattress and left the apartment.

Defendant testified that after obtaining the shotgun from under the mattress he went outside to see what was going on. When he got outside, defendant saw Andrea laying on the ground while being beaten by some people, including the victim. Defendant stated that when he saw Andrea being beaten, he panicked, saw "one of the guys" reaching into his jacket for what he thought was a weapon and was trying to protect his family and Andrea at the same time. When asked where this person was in relation to Cervantes, defendant stated, "They were all together." Defendant also testified that he was afraid that the people beating Andrea would go into his house. Defendant admitted firing the shotgun twice into the ground. Defendant denied belonging to any street gang.

On cross-examination, defendant testified that he was standing at the fence of his building for about a minute or two before he fired. He also admitted that he was the only person with a weapon. Defendant further stated that he "tried to scare them but they wouldn't go away." When asked if he hit Cervantes with his second shot, defendant stated that he "didn't see because a lot of people fell over where they were running." He also testified that Cervantes and his friends were beating up Andrea, who was on the ground, when he fired the shotgun. When asked whether the pellets which he fired hit only Cervantes and a young woman with the Cobras, defendant responded that he "didn't see it." Defendant also testified that the crowd of people attacking Andrea surrounded the house after his first shot. But after testifying that only "[s]econds" separated the first and second shots, defendant stated that they surrounded ...

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