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08/29/89 the People of the State of v. Augustine Zambrano

August 29, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

AUGUSTINE ZAMBRANO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

544 N.E.2d 964, 188 Ill. App. 3d 432, 136 Ill. Dec. 189 1989.IL.1323

Appeal from the Circuit Court of Cook County; the Hon. Ronald J.P. Banks, Judge, presiding.

APPELLATE Judges:

JUSTICE DiVITO delivered the opinion of the court. BILANDIC, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO

Following a bench trial, defendant Augustine Zambrano was convicted of attempted murder, aggravated battery, and unlawful use of a firearm. He was sentenced to 20 years in the Illinois Department of Corrections.

On this appeal, defendant claims that (1) the trial court's finding of guilt was erroneously based on unreliable identification testimony; (2) the trial court erred in denying his motion to reopen his case in chief to allow a witness to testify; and (3) the trial court improperly shifted the burden of proof by basing its guilty finding on his failure to prove that another person shot the victim.

At trial, John Scott, the victim in this case, testified that on December 21, 1986, he was "working the front door" at the Fire Alarm Lounge in Cicero, Illinois. Scott worked in a well-lit vestibule with two sets of doors. Patrons entered the vestibule through outer doors approximately 15 feet from where Scott sat. Scott checked patrons for valid identification from where he sat inside the vestibule. There was a large, well-lit canopy outside the vestibule.

According to Scott, at approximately 5:30 a.m. on December 21, 1986, defendant and three other men entered the vestibule at the Fire Alarm Lounge. All four men were of Latino or Hispanic origin. Defendant was the first man who came in and was wearing gold chains and a long, gray coat. The second man who came in was wearing a long, black coat, but Scott could not remember what the other two men were wearing. Scott testified that the first man who came in was approximately 5 feet 9 inches tall, had medium length hair, a mustache, and "a little hair down his chin."

Scott testified that defendant approached him and produced a valid Illinois driver's license with a photograph. One of the other three men produced an invalid identification and the other two did not have any identification. Scott spoke to defendant from a distance of about two feet and told defendant that his friends could not come in because they did not have proper identification. All four men then sat off to the side in a waiting area. Approximately five to eight minutes later, defendant walked up to Scott and asked whether he could let his friends in. Scott told defendant that he could come in, but his friends could not. During this conversation, Scott stood approximately two to three feet from defendant and could clearly see his face and features.

At that point, according to Scott, "comments were being said" and Scott approached the men and told them they would have to leave. All four men then left the vestibule and stood outside under the canopy. The two men without any identification were the first to leave the vestibule and defendant was the last to leave. All four men stood outside under the canopy at a distance of four feet, while Scott stood in the doorway looking directly at them. According to Scott, defendant was the third man from his right. Scott told the men to go home, turned to go inside, and then, "out of the corner of [his] eye," saw the third man from his right run towards him holding a gun in his hand. That man shot Scott in the stomach and all four men then fled.

Five days after the shooting, while in the hospital receiving medical treatment for his gunshot wound, Scott identified defendant as the man who shot him from a photographic lineup. At defendant's trial, Scott testified that there was "no doubt in [his] mind" that defendant shot him.

Walter Dzendzeluk testified that at approximately 5:30 a.m. on December 21, 1986, he was in the vestibule at the Fire Alarm Lounge. Dzendzeluk had been to two other taverns that night, and between 10 p.m. and 5:30 a.m., had consumed approximately 12 beers. Dzendzeluk saw Scott standing in the doorway speaking to defendant. According to Dzendzeluk, defendant was standing just outside the doorway at that time and was wearing a long, gray coat. Dzendzeluk, who is 6 feet tall, walked up behind Scott, who is 6 feet 5 inches tall, looked over his shoulder and saw defendant's face clearly from a distance of approximately four feet. Dzendzeluk stood directly behind Scott one foot from the door for at most 60 seconds. Dzendzeluk "heard a shot" that came "[f]rom the gentleman standing, facing the doorway." According to Dzendzeluk, the man who shot Scott fled after the shooting.

Dzendzeluk identified defendant as the shooter at a police lineup that morning. At defendant's trial, Dzendzeluk identified defendant in court as the man who was standing outside the doorway facing him and also as the man who shot Scott.

Alex Torrez, a friend of defendant's, testified on defendant's behalf. Torrez testified that he went to the Fire Alarm Lounge at approximately 5:30 a.m. on December 21, 1986, carrying a .22 caliber gun. Torrez showed his identification card to Scott, but Scott told him he could not enter and called him a "spick." Torrez claimed that Scott pushed him down onto the sidewalk, reached for something that Torrez thought was a gun or a knife, and then "came at him." Torrez "got scared," pulled out his gun, shot Scott from a distance of about eight feet, ...


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