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January 28, 1994


Appeal from the Circuit Court of Cook County. Honorable Michael B. Getty Judge, Presiding.

Released for Publication March 18, 1994. As Corrected May 24, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Giannis, Egan, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

On June 28, 1990, off-duty Chicago police officer John Martin was shot in the alley behind his home. Defendant Lionel Myles was arrested and charged with murder in connection with the shooting. Defendant waived his right to a jury and the case against him proceeded to a bench trial. At trial, defendant admitted shooting Martin, but argued that he acted in self-defense. At the close of trial the court found defendant guilty of murder and sentenced him to a serve a term of 35 years in the State penitentiary. Defendant now appeals both his conviction and sentence.

Defendant raises the following issues for our review: (1) whether the State disproved his claim of self-defense; (2) whether the trial court committed reversible error in convicting defendant of first-degree murder in light of mitigating evidence; (3) whether the trial court abused its discretion in allowing the State to reopen its case in order to establish corpus delicti; (4) whether the trial court abused its discretion in sentencing defendant to 35 years in the State penitentiary; and, (5) whether the Illinois homicide statute violates State or Federal due process, separation of powers or equal protection principles.

The State's case against defendant was based principally upon the testimony of one of Martin's friends, Robert Pizarro. Pizarro testified that he was cleaning up debris behind his home when he observed defendant around his automobile. According to Pizarro, the two exchanged words and eventually pushed up against one another. Pizarro testified that the defendant started screaming that he would be back and that Pizarro would "see what's going to happen."

Pizarro testified that he called Israel Cintron, Martin's roommate, but that Martin himself answered the phone. Pizarro said that he had known Martin for eight years, that he considered Martin to be like a brother and that the he and Martin would exercise together. He also said that Martin would share meals with him and his girlfriend, Magdalia.

Pizarro asked if Martin could come down to the back and the two men met on Pizarro's back porch. Pizarro testified that Martin was not dressed in his police uniform but was in street clothing. Pizarro knew that Officer Martin carried his service revolver in his ankle holster when he was off duty and carried his shield inside his pocket fastened with a clip. Pizarro stated that he saw Martin had his shield with him, but that he was not sure whether Martin had the revolver at the time the two met downstairs. Pizarro explained what had just happened with the defendant.

Pizarro and Martin proceeded to walk outside, but defendant was not there. Pizarro then heard the sound of a bicycle chain and saw defendant approaching on a bike with a gun in his hand. Pizarro testified that he turned to Officer Martin and said, "Johnny, that's the guy. He's got a gun." Pizarro said that defendant was smiling as he approached them. According to Pizarro, defendant rode up and put his bike tires right between Martin's legs. Pizarro testified that defendant smiled, pointed the gun at Martin's chest and fired without pausing. Pizarro also testified that, at the same time, Martin struck defendant with a right punch that landed on the left side of defendant's face.

Immediately after defendant shot Martin, Pizarro testified that defendant pointed the gun at him. Pizarro ducked and heard the gun click, but there was no explosion. Defendant then fled the scene on the bicycle.

Pizarro, who was also known to Martin as "Rico," testified that after Martin had been shot, Martin reached for his weapon in his ankle holster, took a few steps and fired twice toward defendant. Pizarro approached Martin, Martin passed Pizarro the weapon and said, "Rico, get him and don't let me die." Pizarro chased defendant down the alley and fired once as defendant fled.

When Pizarro turned to check on Martin, Martin was on the ground. Martin's eyes were open, but he could not talk and looked like he was in shock. Pizarro's girlfriend and Israel Cintron arrived on the scene and Pizarro told them what had happened. Eventually the police arrived. Pizarro was leaning against a garage door still holding Martin's gun.

Pizarro stated that an officer kept asking him what had happened. Pizarro said he told the police officer that a black man on a 10-speed had shot Martin. The officer appeared excited and there were people in the back screaming. Pizarro denied telling the officer that a white man had shot Martin.

On cross-examination, Pizarro insisted that he did not tell the officer that the offender was a white man on a motorbike. Pizarro said he learned from someone months later that a police officer had written a report indicating that the offender was a white man but that he was still too emotional about the shooting to call and ask that the report be corrected.

On re-direct, Pizarro stated that his right arm was in a cast from his fingertips to nearly his shoulder at the time Martin was shot. Pizarro stated that he fired the gun with his left hand.

Pizarro, in response to questions from the trial court, testified that neither he nor Officer Martin had any type of weapon in their hands when defendant rode up on his bike. Pizarro stated that Martin struck defendant in the face after defendant had shot Martin. As defendant began to flee, Martin picked up his weapon, took a few steps, stopped in pain and fired two shots before turning the gun over to Pizarro.

The defendant's girlfriend, Diane Russell, testified that she was defendant's fiancee and had known him for fourteen years. They had two daughters. She testified that on the night Martin was shot defendant returned home from work looking mad. Russell said that it looked as if he had been hit because his clothes were off his shoulders. Defendant asked Russell where "it" was. She stated that she did not know what "it" was but that she assumed defendant meant the gun. She directed him to the bedroom. Defendant was in the apartment for five or ten minutes. She stated that she did not pay much attention to defendant and that she turned to finish washing dishes.

When defendant next returned to the house, Russell stated that he looked the same and that he told her to get rid of "it." Russell assumed he was again referring to the gun and said that she found it on the couch. Defendant did not explain why he wanted her to get rid of the gun, but she put it in her purse, walked down the back alley and put the gun in a garbage can. Later, Russell showed police officers where the gun was located. Russell testified that defendant owned two bicycles which he kept in the apartment.

Israel Cintron, Martin's roommate, testified that on June 28, 1990, he and Martin were at home and Martin went downstairs around 6 p.m. Cintron heard a gun shot, and then heard Martin call Cintron's name and was told by Martin to call the police. When Cintron went out on the porch, he saw Pizarro chasing a man on a bike. After Cintron called the police and went downstairs, he saw Magdalia Galarza comforting Martin, who was bleeding. The alley was chaotic from all the people screaming and yelling.

On cross-examination, Cintron testified that Martin wore an ankle holster but that the holster was not visible the day he was killed because his sweat pants covered it. Cintron stated that he did not see Martin fire the second, third or fourth shots, but saw him on the ground after the first shot.

In response to the trial court's questions, Cintron said he was on the phone with the police when the other shots were fired. He went outside and saw Pizarro kneeling against the garage. Pizarro was crying.

Magdalia Galarza testified that she lived with Robert Pizarro. On June 28, 1990, she heard one soft gun shot, then one loud gun shot, ran outside and saw Martin coming toward her until he fell on top of her. Galarza put Martin on the ground and heard a third gun shot and saw Pizarro coming toward her. Pizarro said, "[a] black man on a bike, how is Johnny?" Galarza also said that she put Martin's head on her knees and told him to breathe. Pizarro was banging his head on the garage saying "Johnny, no. God, no. Breathe." Several people were yelling, "Johnny, breath." There was a lot of commotion and everyone was hysterical. One police officer arrived, pointed his gun at Pizarro and told him to drop the gun. Pizarro was slouched against the garage still holding a gun. Everyone yelled to the police officer that Pizarro was not the man who had shot Martin, but the officer said he did not care. The officer told everyone to move back and ordered Pizarro to "drop the fucking gun." Pizarro dropped the gun after everyone yelled at him to do so.

On cross-examination, Galarza stated that Pizarro sometimes swept the garage but not on a regular basis. She did not know if ...

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