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June 16, 1994



Petition for Leave to Appeal Denied October 6, 1994.

Johnson, Cahill, Theis

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Defendant, Roman Chavez, was charged by indictment with first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-1), robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18-1), and disarming a police officer (Ill. Rev. Stat. 1989, ch 38, par. 31-1a). Following a jury trial in the circuit of Cook County, he was convicted of all charges and sentenced to life in prison without parole. Defendant appeals, alleging that (1) the trial court improperly excluded his post-arrest statements; (2) the trial court wrongly excluded evidence of his mental condition; (3) the trial court erroneously tendered an instruction on the use of force by an initial aggressor; (4) the trial court improperly admitted certain evidence; and (5) the prosecution made several improper arguments during closing and rebuttal arguments which denied him a fair trial.

We affirm.

This case involves the shooting deaths of Chicago police officers, Gregory Hauser and Raymond Kilroy. Defendant shot and killed the officers as they were responding to a 911 call from Florence Zuniga, defendant's 75-year-old grandmother. The circumstances surrounding the shooting as presented at trial are as follows.

On the evening of May 13, 1990, defendant was working on his car in his grandmother's garage located behind the Zuniga home at 2158 North Nordica in Chicago. The two-car garage was full of auto parts and other debris such that there was room for only one car. Ms. Zuniga asked defendant to remove his car so she could park her car in the garage, and threatened to call the police if he refused. Defendant failed to comply and after several exchanges, Ms. Zuniga went inside the house and called the police. As she left the garage, she noticed that the side door to the garage was unlocked.

Ms. Zuniga initially called a neighborhood police station and requested to speak with an officer who had previously visited the Zuniga home in response to a disturbance caused by defendant. She was informed that the officer was not on duty and was told to call 911. Ms. Zuniga then telephoned 911 and Officers Hauser and Kilroy responded to the call.

Immediately upon arriving at the Zuniga home, Officer Hauser radioed for a police wagon to help transport defendant to the police station. The two officers then spoke with Ms. Zuniga, who led them to the garage after she assured them she would sign a complaint. The officers entered the garage under the overhead door which was partially lowered while Ms. Zuniga went to the side door. As she approached the door, Ms. Zuniga observed the garage light go out. Ms. Zuniga then heard scuffling coming from inside the garage during which she heard defendant cry out for help. She then attempted to enter the side door which was now locked.

At trial, Reverend Andrew Hagen and his wife, Susan Hagen, testified that on May 13, 1990, they lived across the street from the Zuniga home. On that date, Reverend Hagen was looking out of his living room window when he observed two officers arrive at the Zuniga home. As the officers approached the garage, they appeared very calm. After the officers entered the garage, Hagen heard noise coming from the garage. He also heard a voice cry out for help, and when he looked out of his window, he saw Ms. Zuniga running toward the street. Hagen ran out to assist Ms. Zuniga and then heard six gunshots. Moments after he helped Ms. Zuniga to his house, Hagen saw defendant emerge from the garage holding a gun in the air. Defendant did not limp or appear to be injured. Hagen then heard defendant announce, "Everybody better leave me alone." Mrs. Hagen telephoned 911.

Shortly before 9 p.m. on May 13, 1990, Chicago police officers Bruce Pearson and Andre Souffant arrived at the Zuniga home 10 minutes after receiving Officer Hauser's request for a police wagon. Reverend Hagen called out to the officers that defendant was inside the house. Officer Souffant went to the house while Officer Pearson went to the garage. As he approached the garage, Pearson heard what he considered to be a groan or a growl. He then entered the garage where he found Officers Hauser and Kilroy lying 6 inches apart on the ground.

Officer Pearson approached the two officers and noticed that Hauser was breathing but Kilroy was not. He also noticed that Hauser's gun holster was pulled around in front of his crotch and his service revolver was missing. Pearson observed that although Kilroy's gun was fully loaded and in his holster with the safety tab intact, his handcuffs and flashlight were missing. Pearson then radioed for help and Hauser and Kilroy were taken to area hospitals where Kilroy was pronounced dead upon arrival. Hauser died later that evening.

Subsequently, police officers searched the Zuniga home and the surrounding area for several hours. At approximately 2 a.m., Officer Harold Bone found defendant hiding under a porch at 2310 North Harlem. Defendant resisted as Officer Bradul Ortiz pulled him out from under the porch area, which was full of debris. Defendant's hands and legs were cuffed and he was taken to the police station. Hours later, Officer Sarah McDermott recovered Hauser's fully loaded gun which was buried under the porch beneath the debris.

Ginger Rogers testified at trial that sometime in June of 1990, she was in defendant's bedroom at his grandmother's house. She stated that while looking behind defendant's dresser she observed a pair of handcuffs lying inside some clothing. Rogers also looked through defendant's dresser ...

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