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06/08/94 PEOPLE STATE ILLINOIS v. RAFAEL CEDENO

June 8, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
RAFAEL CEDENO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 91-CF-1366. Honorable Peter J. Dockery, Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Inglis, Bowman, Doyle

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

A jury in the circuit court of Du Page County convicted defendant, Rafael Cedeno, of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1 (now codified, as amended, at 720 ILCS 5/9-1 (West 1992))). The court sentenced him to 45 years' imprisonment. Defendant appeals both the conviction and the sentence. He contends that the trial court erred by (1) refusing to dismiss certain members of the venire for cause; (2) striking the testimony of a State witness and denying defendant the opportunity to cross-examine him; (3) refusing to instruct the jury concerning the offense of second degree murder; and (4) imposing a sentence of 45 years' imprisonment. We affirm.

Testimony at trial indicated that on June 18, 1991, defendant arrived home from work early and began drinking and working in his garage. He extracted tools from a toolbox, moving aside his pistol to get to the tools, and began to construct an antenna for the house. His son, Jeffrey Cedeno, was home at that time.

His wife, Evelyn Velazquez (the victim), came home later, accompanied by her daughters, Maribel Contreras (defendant's stepdaughter) and Michelle Cedeno. The victim was driving defendant's sister's car, because her own car was being serviced. As the women began to prepare dinner for the family, Jeffrey went out to the garage, where defendant was talking on a cordless phone in his pickup truck. Jeffrey heard defendant discuss his marriage, speaking in a loud tone and using profanity. When the call ended, defendant told Jeffrey that, no matter what happened, he still loved him.

Defendant then drove to his sister Anna Santana's home. He spoke with his sister and her husband Pablo regarding the cars and his marriage. They explained why the victim had their car, and he asked why she had not taken the family van. He complained that the victim made such decisions without consulting him and said that his marriage would never work because people continuously interfered. He said he wanted to kill his wife, and then he left for home. Anna phoned the victim as defendant departed.

Upon returning, defendant instructed his children to return a videotape to a rental store. Michelle said that she would do it later, and defendant replied that what he had to do could wait. Defendant returned to the garage and remained there while the family ate; then he went inside to speak with the victim.

Maribel had left, and the victim and the children were in Michelle's room talking. Defendant asked the victim to accompany himto the garage to talk. She said that she did not wish to speak with him and that they had nothing to discuss, but she did go with him to the garage so that their children would not hear them quarrel. The children followed them into the hallway, and Michelle told her father that if he hurt her mom, she would call the police. He told her she would be sorry if she did that, and she responded that she was not afraid of him.

The garage door closed, and defendant and the victim argued. The children slipped down the stairs, and Michelle opened the garage door slightly. The children listened as their parents argued, and defendant accused the victim of infidelity. They argued for about 20 minutes, and the victim returned to the house. The children retreated to Michelle's room. The victim came into the room and retrieved some clothes; then she locked herself in the bathroom to take a shower.

Defendant took the pistol out of the toolbox and went into the house. He looked in on the children, asked why they were crying, and accused them of taking sides. He proceeded up to his bedroom and found the bathroom door locked. He straightened the end of a coat hanger and used it to jimmy open the door. He entered the bathroom and closed the door behind him. The victim was seated on the commode.

Again the children listened at the door. Michelle tried the door and found it locked. She heard defendant tell the victim that they would go to hell together. They argued further, and the victim told defendant he would never see his children again. Michelle ran downstairs to call the police.

As she dialed, she heard four gunshots. Jeffrey remained outside the bathroom door. He heard a single shot, a hesitation, and three more shots. He retreated to the stairs as his father exited the bathroom, closing the door behind him. Defendant walked past Jeffrey, holding an object close to his side and out of Jeffrey's sight. He proceeded downstairs and out the front door. As he passed, Michelle saw that he was carrying a pistol and a ...


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