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12/28/89 the People of the State of v. Alexander Heredia

December 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ALEXANDER HEREDIA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

550 N.E.2d 1023, 193 Ill. App. 3d 1073, 140 Ill. Dec. 898 1989.IL.2035

Appeal from the Circuit Court of Cook County; the Hon. Sophia H. Hall, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. FREEMAN, P.J., and CERDA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Defendant-appellant, Alexander Heredia (Heredia), was charged with murder and armed violence in connection with his wife's death. After a bench trial, Heredia was found guilty of voluntary manslaughter and sentenced to 24 years' imprisonment. Heredia appeals the conviction and sentence.

On appeal, Heredia argues that (1) the court abused its discretion in sentencing him to 24 years where the court considered improper materials in the presentence report, made findings which were inconsistent with the facts presented at trial and considered improper testimony during the hearing in aggravation; (2) the court erred in finding him guilty of voluntary manslaughter where the State failed to negate theories that the death was a result of an accident or reckless conduct; and (3) the prosecution committed reversible error by questioning him about an alleged aggravated assault of his wife and by allowing the admission of evidence regarding his prior conviction of taking indecent liberties with his daughter. We disagree and affirm.

At trial the following facts were revealed. Laura Heredia died on December 16, 1984, at the age of 29. Thirteen-year-old Lisa Heredia testified that on that date, she, her brother, David, sister, Laura, and mother resided at 7148 South Fairfield in Chicago. Heredia, her father, had not resided at the home on a consistent basis for the preceding two to three weeks.

According to Lisa, on the evening of December 16, she, David and Laura were in the living room while her parents argued for approximately one-half hour in their second-floor bedroom. Heredia insisted upon returning to the home while her mother stated that she did not want him to live there. Thereafter, her father walked out the front door, and her mother went into the kitchen and looked out the window while she smoked a cigarette.

Lisa recalled that she went upstairs and telephoned her grandmother from her mother's bedroom. Moments later, her mother came upstairs and Heredia approached, crying and carrying a gun, which he later pointed at his temple. Lisa watched her mother attempt to hold Heredia back by placing her hands on his shoulders. Her mother did not have a weapon and did not hit or strike Heredia. Heredia pushed Laura and caused her to fall backwards on the floor. They were now out of Lisa's sight.

After informing her grandmother that her parents were fighting, Lisa concluded her conversation and called the police.

Lisa testified that she heard a struggle from inside the room and a door open and close. In addition, she heard her mother say, "Alex, don't." Lisa heard shots "right after the other," but could not recall the exact number fired. Heredia came out of Lisa's room, dropped the gun, and knelt on the floor. Lisa ran to Heredia, knelt down and held him. She got up, saw her mother lying on the floor, grabbed her little sister, and ran down the stairs and out of the house.

According to Lisa, Heredia moved out of the house in June and November of 1984. He returned to visit his children, and occasionally, they went with him to his mother's home, where he resided. On December 15, 1984, Heredia spent the night at their home on Fairfield, and the family went shopping on December 15 and 16.

Twelve-year-old David Heredia similarly testified that on December 16, 1984, he resided at 7148 South Fairfield with his mother, Laura, and two sisters and that his father would visit the home "once in a while." Heredia moved out of the home two weeks prior to December 16. David recalled his parents' 30-minute argument and saw Heredia come down the stairs and leave the house. He also observed his mother come downstairs, enter the kitchen for two minutes and then return upstairs empty-handed, followed by Lisa.

According to David, Heredia returned in five to eight minutes and climbed the stairs followed by three-year-old Laura. David heard his mother exclaim, "Why Alex?" followed by "a lot of noise and screaming." Baby Laura started to cry, and then his sisters screamed, "Daddy, no." David ran into the kitchen and remained there for 10 seconds before running out of the house. Once outside David heard five shots. He heard one shot followed by two shots, "a lot of screaming and yelling," and two additional shots. Thereafter, David ran to a neighbor's house and asked them to call the police because his parents were arguing and his father had a gun.

David testified that his father normally kept a gun in his car and that on December 16, 1984, he parked his car directly in front of the house. On December 15, 1984, his father stayed overnight at their home on Fairfield, and the family went shopping on the 15th and 16th.

On cross-examination David testified that immediately after the shooting, he told the police that Heredia returned from his car within one minute and that the five scattered shots rang out within 5 to 10 seconds.

Chicago police officer Walter Wronski testified that on December 16, 1984, at approximately 7:30 p.m., he and his partner, Cathy Branigan, responded to a call of a man with a gun at 7148 South Fairfield. Upon arrival he spoke with Lisa Heredia, who stated that her father was in the house with a gun and that she heard him shoot the gun. Once in the house Wronski heard someone crying and called out "come to the stairs and show me your hands." Heredia responded, "I can't, I hurt my wife real bad, help her."

Officer Wronski testified that after Heredia came downstairs, he handcuffed him, arrested him and advised him of his Miranda rights from a preprinted card. Heredia acknowledged that he understood his rights. Officer Wronski investigated the scene, recovered an automatic handgun from the second-floor hallway and observed bullet casings and a pool of blood on the floor in one of the bedrooms. At the police station, Wronski readvised Heredia of his rights.

Chicago police detective John Smith also investigated the scene and observed blood on the floor just inside the door, a number of shell casings strewn on the floor, and two spent bullets. Smith found a bullet in the bedroom closet. There was no blood on the closet floor.

Detective Smith was present when Assistant State's Attorney Dawn Overend spoke with Heredia. Overend advised him of his rights and explained her role in the investigation. Heredia stated that he understood the rights and agreed to make a statement. Detective Smith related the following:

"[Heredia] informed Miss Overend at that time him [ sic ] and his wife had been separated, that he had gone over to the house that evening to talk to her, that an argument had ensued between them at which time she laughed at him, called him a bum. He left the house, went out to his car, got his gun, returned to the house, went upstairs to the bedroom at which time she continued laughing. He fired the gun, she ran into the closet, he fired into the closet, she came out of the closet and he fired the gun again. He could not remember how many times he fired."

Assistant State's Attorney Overend related that on December 16, 1984, after having spoken with Lisa, David, and the police officers and read the police reports, she spoke with Heredia at approximately 11 p.m. She advised Heredia of his Miranda rights, and Officer Smith informed him of his wife's death. Thereafter, he gave the following oral statement:

"He (Heredia) told me that he was separated from his wife so he wasn't living with her but had gone to the house that night and that they had begun arguing, that he had wanted to move back into the house with his wife and that she said no and he said that she was laughing at him and he said that he felt like he must mean [ sic ] nothing to her if she could laugh at him like that and he then said he left the house and he went out to his car and he got a gun that he keeps [ sic ] and I asked him at that point what kind of a gun it was and he told me a .25 caliber and it was silver and I asked him what he did then and he said he went back in the house and he went upstairs with the gun and he said that he again said something to his wife and then he shot her. . . . He said that she ran into the closet and that he chased her and that he pulled her back out and then he shot her and I asked him if he knew how many times he had shot her and he said no, that he couldn't remember. . . . After he shot her and he said that she fell to the ground and that he got down and tried to hold her and he said that his daughter had been upstairs when this happened."

According to Detective Smith and Assistant State's Attorney Overend, Heredia agreed to give a written statement and read the statement aloud and signed it. Overend testified that she informed Heredia that she could write down what he told her on a felony review statement form or a court reporter could come and transcribe verbatim what he would say. Heredia preferred not to have anyone else in the room and elected to have her write his statement. Overend left the room and transcribed Heredia's statement on a felony review form. At approximately 11:45 p.m., in Smith's presence, Overend showed Heredia the statement, and he read it aloud as she pointed to each word with her pen.

Overend testified that when Heredia finished reading the statement she asked him if it was the truth. He responded affirmatively and declined to make any changes. Heredia, Detective Smith and Assistant State's Attorney Overend then signed the statement.

The parties stipulated to Dr. Kirschner's post-mortem examination of Laura Heredia. The cause of death was multiple gunshot wounds to the head and trunk. Specifically, there were one gunshot wound to the head, two wounds to the back, and two wounds to the abdomen. Dr. Kirschner found severe cerebral injury, in addition to injuries to the right lung, liver and small intestine. Dr. ...


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