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January 14, 1994


Appeal from the Circuit Court of Cook County. The Honorable Edward Fiala, Judge Presiding.

Egan, McNAMARA, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The defendant, Angel Perez, and Edwin Ruiz were indicted for attempted first degree murder, armed violence and aggravated battery. The defendant was tried before a jury, and Ruiz was tried simultaneously in a bench trial. The defendant was convicted of aggravated battery and armed violence and acquitted of attempted murder. The aggravated battery conviction merged into the armed violence conviction because it formed the predicate felony for the armed violence conviction. Ruiz was found guilty of attempted first degree murder, armed violence and aggravated battery. Both were sentenced to 25 years' imprisonment. Ruiz' appeal is not before this court.

The defendant assigns several grounds for a new trial; he also contends that his sentence was improper; but he does not question the sufficiency of the evidence to establish his guilt beyond a reasonable doubt.

On March 25, 1988, Dennis Botts and his brother, Fred Botts, were in a car going down Clybourn Avenue in Chicago. Dennis, who was 24 years old, was driving; Fred, who was 27 years old, was in the passenger seat. As they approached the intersection of Diversey and Damen, Dennis noticed a group of men standing by a car. Near the car was a man, later identified as the defendant, who was making hand signals in a downward motion. While waiting in traffic, Dennis saw in his rear view mirror Ruiz running toward the car on the passenger side. The defendant pulled twice at the driver's side door handle and screamed, "They're Royals, they're Royals." The door handle was broken on the outside and the door could not be opened. As the defendant pulled on the door, Dennis heard a gunshot. He turned his head and saw that Fred had been shot in the neck. Dennis looked at Ruiz, who pointed the gun at Dennis; he pulled the trigger but the gun misfired. Dennis Botts later identified the defendant and Ruiz. Fred Botts was unable to identify anyone.

The police arrived and took Fred Botts to a hospital. Botts was in the hospital for nine days and had surgery to remove a bullet from his neck.

From a bronze colored 1974 Ford Mustang with license plates that were traced to the defendant, the police recovered a .9 millimeter pistol with 11 live rounds in it. The car was parked in front of the defendant's house. The shooting took place a few houses from where the defendant lived.

A police firearms examiner testified that the bullet recovered from Fred Botts had been fired from a gun with five lands and grooves with a right-hand twist. The .9 millimeter pistol recovered from Perez' automobile also had five lands and grooves with a right-hand twist. Since the bullet recovered from Fred Botts was mutilated, he could not form an opinion as to whether the bullet recovered from Fred Botts was fired from the recovered gun. Dennis Botts testified that the recovered gun looked like the gun he saw in Ruiz' hand.

A police gang crimes specialist testified that Ruiz was affiliated with a gang called the Insane Deuces and the defendant was affiliated with a gang identified as the Insane Unknowns. the Insane Deuces and Insane Unknowns were part of the "People's Nation." The "People's Nation" is an enemy of the "Folk Nation," which includes the "Royals," a shortened name for the "Simon City Royals." The hand signal made by the defendant to Dennis Botts was that of the Folk Nation, and a downward motion of that signal was a sign of disrespect for the Folk Nation.

Gun shot residue tests were administered on the hands of Ruiz. The samples taken from Ruiz' right palm and left hand indicated that Ruiz had discharged a firearm, had been in the environment of a discharged firearm or had handled a discharged firearm.

The defense was an alibi. Donna Gromosko, the defendant's fiancee, testified that she lived with her mother, Dorothy Pastorino, at 2832 N. Clybourn. At 3:30 p.m. on March 25, 1988, she and the defendant were in their bedroom when the defendant got up and said he heard something, and then looked out the window. He then left the house.

Dorothy Pastorino testified that she heard what sounded like a gunshot from her bedroom window, which faced the street. She ran to the window to look outside. The defendant came into her room to look outside. He remained in her room for about a half hour.

The defendant testified that he was in the bedroom with his fiancee, heard a shot, and then looked out the bedroom window. He went to Dorothy's room and looked out her bedroom window that faced the street. He saw many people outside, walking southbound toward Diversey. He went outside and walked toward the crowd. Later that afternoon the police came to his home, took him to the station and placed him in a lineup. After being identified, he told the police that he spent the day with his girl friend Donna and that they were in the bedroom when he heard a shot. He knew Ruiz from the neighborhood but was not with him at any time on March 25. He did see Ruiz running when he looked out Dorothy's front bedroom window. He testified that he owned a 1978 Delta '88 and that he never drove a Ford Mustang. His Delta '88 was abandoned on Southport Avenue about five or six months before the shooting. The license plates recovered from the Ford Mustang were his, but they were on the Delta '88 when it was abandoned. He admitted that he was a member of the Insane Unknowns, but was not affiliated with them presently.

On cross-examination he testified that when he left his girl friend's apartment he told an officer about seeing Ruiz running down the street. He denied he told the police that Ruiz tried to hide his head with a hood.

In rebuttal Sergeant Sappanos testified that he interviewed the defendant after he was taken to Area 6 Detective Headquarters. After he was identified in the lineup, the defendant told him that, at 3:30 p.m. he was in the bedroom with Donna, heard a shot and looked out the window. The defendant told Sappanos that he saw Ruiz running toward an alley, trying to hide his face with a hood. Sappanos also talked to Donna Gromosko. She told him that the defendant was with her the entire day in the house; that she heard nothing at 3:30 p.m. and that the defendant did not leave at that time.

The defendant first contends that he was provided ineffective assistance of counsel because he allegedly elicited prejudicial hearsay evidence during the cross-examination of a police officer.

Before trial the defendant's attorney moved in limine to prohibit the State from eliciting any testimony concerning statements allegedly made by a "cooperating individual" to certain police officers on the ground that such testimony would be hearsay. The prosecutor told the Judge that the police officer's testimony would not include the contents of the conversation, that the officer would testify only that he had a conversation with an individual and to what the officer did as a result of having the conversation. The Judge ruled that the State could not elicit the contents of the conversation.

Officer Whalen testified that he investigated the shooting at about 4:20 p.m. on March 25th; he was approached by a "concerned citizen" at the corner of Diversey and Wolcott. He had a conversation with this "concerned citizen," and after he had the conversation he went to 2832 Clybourn Street where he observed a 1974 bronze colored Ford Mustang. He "ran" the license plate on the Ford and learned it belonged to the ...

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