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May 13, 1994



Murray, Gordon, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Defendant, Jose Nunez, was charged with attempted first degree murder, armed violence, aggravated battery with a firearm, and two counts of aggravated battery. At a bench trial, defendant was found guilty of all charges except attempted murder. Defendant was sentenced to 14 years in the Illinois Department of Corrections and three years mandatory supervised release.

Prior to trial, defense counsel did not present any motions to suppress. At the start of trial, both the prosecutor and defense counsel waived opening statements. The prosecutor then called Roberto Jacobo as the State's first witness.

Roberto Jacobo (Jacobo) testified that on September 5, 1991, at approximately 3:35 a.m., he was driving his father's car in the area of 3700 South Hermitage with James Davis (Davis) and Greg Episodo (Greg). Greg was sitting in the front passenger seat and Davis was sitting in the back seat. The three men went to look for Greg's girlfriend.

When they arrived at 3700 South Hermitage, they spotted Nunez and Yvonne walking. While Greg and Nunez had words, Nunez, struck or attempted to strike Davis. "[Davis] had held his hand and somehow either [Davis] let him go or he got away and he backed off and he [Nunez] started shooting." Yvonne was next to Nunez when he fired the weapon. Nunez fired the weapon two or three times.

Jacobo doesn't recall if he got hit the first time Nunez fired the weapon. However, Jacobo was struck by a bullet in the jaw which lodged in his right shoulder area. After Jacobo was shot, he drove around the corner. He told Davis he was shot. Davis scooped him over and took over the wheel. Davis drove Jacobo first to his father's house, then to the hospital. Surgery was performed immediately and Jacobo remained in the hospital from Friday morning until Sunday morning.

After leaving the hospital at approximately 2 a.m. Sunday morning, he went to the police station. At the police station, he was questioned. Subsequently, the police took him for a ride. At approximately 2:30 a.m. they drove in the area of 3617 South Hermitage. At that time he saw Nunez.

Jacobo testified that he was currently serving time in the penitentiary. He had been sentenced to three years in prison for possession of a controlled substance and four years for possession of a stolen motor vehicle. He had also been previously convicted of forgery and theft.

No one exited the vehicle when Nunez swung at Davis in theback seat. None of the occupants of his vehicle got out of the car prior to the shooting.

On cross-examination Jacobo testified that he was aware that Nunez lived at 3617 South Hermitage. On the night of September 5, 1991, at approximately 3:35 a.m., he was going to Nunez's house looking for Nunez and Yvonne. He was not aware at the time that Nunez and Yvonne were dating. He did not call Nunez over to the car. Greg had words with Nunez after Greg and Yvonne had had a few words. Greg and Nunez did not have an argument. Jacobo stated:

"It was like Greg had said something, 'Are you with her now,' and he's like, Mr. Nunez (sic) like, 'She's with me now. You got a problem with that?' And that was it."

Once this was said, Jacobo thought everything was smooth. He stayed there. At that point Greg did nothing. Then Nunez walked towards the car and struck Davis. Davis did not say anything to Nunez. Jacobo had been drinking beer that evening. The car Jacobo was driving was a 2-door, 1978 Cutlass. In order for Nunez to swing at Davis through the window, he had to go past Greg who was sitting in the front seat.

Davis testified that on September 5, 1991, at about 3:30 a.m., he was in the area of 3700 South Hermitage with Jacobo and Greg. Jacobo was driving and Greg was seated in the passenger seat. Davis wasn't aware why they went to that location. After they picked him up, they picked up a six-pack. They were driving around and "they pulled over there and had an argument." When they pulled over at 3700 Hermitage he saw Nunez and Yvonne. He knew Yvonne prior to that date because Greg and Yvonne had been going together since grammar school. At that time Davis was not aware of a relationship between Yvonne and the defendant.

Greg and Nunez were arguing back and forth. Nunez had told Greg to leave, but they didn't. Nunez took a swing at Davis and Davis blocked it by grabbing his wrist. With his other hand, the defendant pulled out a revolver. When he saw the revolver, Davis told Jacobo to pull away. Jacobo was speaking in Spanish and Davis did not understand what they were saying at the time. A few seconds later the vehicle moved and a bullet came through the back window. One or two shots were fired and as far as he knew Nunez was firing the weapon. Immediately after the shots were fired Davis looked in the back window. The bullet went right past Davis. Jacobo turned his head to look out the back window and caught a bullet inside the cheek. After Jacobo was hit, he drove the car around the corner. Greg jumped out of the car. Davis pushed Jacobo over to the side and drove him straight to the hospital. Subsequently, Davis stated thathe stopped at Jacobo's parents house first and then went straight to the hospital.

Davis stated that he had two previous burglary convictions and a conviction for possession of a controlled substance. In addition, he received a three-year sentence in the Illinois Department of Corrections for burglary and possession of a stolen motor vehicle.

On cross-examination Davis testified that he did not know what was going to happen when they pulled up and saw Nunez and Yvonne on the street. To his knowledge, Greg opened the car door, but never got out of the car. Davis stated that he probably drank 12 cans of beer that evening. Defense counsel asked if Davis had been smoking something called wicked stick or happy stick, to which Davis replied, no. To Davis' knowledge Jacobo did not drive about 10 feet up and then stop and start to back up.

On examination by the court, Davis testified that one or two shots were fired. He was positive one shot was fired because it came right past the side of his head. All shots were fired as the car was pulling away.

Detective Nick Crescenzo testified that at approximately 2 a.m., on September 10, 1991, Jacobo and Davis came into his office relative to a shooting that occurred at about 3:35 a.m. on September 5, 1991, at 3700 South Hermitage. Jacobo directed him to a front porch in the area of 3617 Hermitage where Jacobo stated he had seen the man that shot him. At that location Detective Crescenzo saw the defendant. Jacobo identified the defendant as the man that had shot him in the face on September 5, 1991. Detective Crescenzo placed the defendant under arrest and took him to Area 3 Headquarters. At about 3:30 a.m., in the presence of Assistant State's Attorney Doug Wynne (ASA Wynne), he interviewed the defendant concerning the September 5, 1991 shooting. Before the interview was conducted ASA Wynne advised the defendant of his rights per Miranda. After their conversation ASA Wynne took a handwritten statement which the defendant read, stated he understood, and signed.

Defense counsel objected to Detective Crescenzo being the proper person to lay a foundation for the defendant's statement. The trial court overruled the objection.

Detective Crescenzo stated he was present when the statement was prepared and signed. He identified the defendant's statement. He witnessed the signatures on both pages of the document and stated that defendant, ASA Wynne, and himself each initialed a correction on the first page.

On cross-examination by defense counsel, Detective Crescenzo testified that prior to the time that Jacobo came into the policestation he had not been assigned to this case, and in fact, up until Jacobo walked into the station at 2 a.m, he did not have any knowledge of the case. Jacobo told him that he had seen the person who shot him sitting on a porch located at 3600 South Hermitage. The first time Detective Crescenzo drove past the porch he did not see the defendant. Detective Crescenzo drove around approximately 15 or 20 minutes before he returned to the defendant's address.

Detective Crescenzo spoke with the defendant before ASA Wynne arrived. Detective Crescenzo advised the defendant of his constitutional rights and the defendant gave him a brief synopsis of what had transpired. After Nunez had told his side of the story, ASA Wynne then wrote down a summary of what had been said.

On re-direct, Detective Crescenzo stated that the first time he drove by 3617 Hermitage, Jacobo stated that the man that shot him wasn't there now.

The two-page handwritten statement of the defendant was entered into evidence. Both pages of the statement are signed by Nunez, Detective Crescenzo, and ASA Wynne. One change was made on the first page and initialed by the above three persons. The statement indicates that Nunez had not taken any drugs or alcohol within the preceding 24 hours. Nunez stated that Greg and two other guys came to 3600 South Hermitage. Greg was calling Nunez's nephew a liar and then started yelling at Yvonne. This all happened while all three guys were still in the car. Nunez punched the guy in the back seat and the three guys drove off about 10 feet. The car then stopped. Nunez fired one shot into the window of the car and one shot over the car. The car then drove away.

The State rested. Defendant made a motion for a directed finding which the trial court denied.

Defendant testified on his own behalf. Defendant stated that at approximately 1 a.m. on September 5th Greg came to his house asking for Yvonne. The defendant's nephew went to the door. Nunez had told his nephew to tell whoever was knocking that he wasn't there. Neither Nunez nor Yvonne talked to Greg at that time. The next time Nunez saw Greg was at approximately 3:30 a.m.

At about 3:30 a.m., Nunez was walking Yvonne to her car when Jacobo drove up alongside him. Nunez stated that he did not argue with Greg, but rather he just told them if they wanted to talk to Yvonne, she was on her way home and they could talk to her there. At that point Davis became involved in the conversation and proceeded to get out of the car. Greg opened the car door for Davis and slouched forward while Davis proceeded to pull himself from the side seat of the car. When Davis started to get out of the car, Nunezstruck him. Nunez punched him once, but Davis put his hand in the way. After Nunez struck him once, Davis backed up from the car. The car moved about 10 feet, stopped, and both the doors opened. Before anyone got out of the car, Nunez took a shot. He shot once at the car and once in the air. When asked if he had seen any weapons on any of the men, he stated, "No. There was a baseball bat in the back seat of the car." The three men had not threatened him prior to his pulling the weapon. Nunez was scared because there were three guys and he was only with Yvonne.

On September 10, 1991, at approximately 2 a.m. he was inside his house eating. He then walked outside and there was a detective car outside. He was subsequently taken to the police station where he had a conversation with Detective Crescenzo and ASA Wynne.

On cross-examination, the defendant testified that he was standing about 10 to 12 feet away from the car when he fired the gun. The car had come to a complete stop, and the doors had opened before he took his first shot. He did not use the first shot to warn the men, he fired directly into the back window of the car. He believed Jacobo was intending to get out. When asked if he saw Jacobo's body at the driver's side, he stated that he didn't see anything at that time. Nunez was scared for himself that they were all drunk. The men smelled like liquor and the car smelled like wicked stick. However, Nunez testified he knew there were three human beings in the car and that he knew by firing the gun into the car he could hit one of the people.

On re-direct, Nunez testified that he brought the gun out of the house because he "was scared that they were going to be out there, and they were going to attempt something on [him]." He stated he was scared because although Greg had started seeing Yvonne again, she didn't want to go out with him, however he kept persisting and bothering her and stuff like that. The defendant did not ...

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