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January 19, 1995


Appeal from the Circuit Court of Kane County. No. 92-CF-680. Honorable James T. Doyle, Judge, Presiding.

Released for Publication February 24, 1995.

The Honorable Justice Colwell delivered the opinion of the court: Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Estaban Torres, a/k/a Estaban Torres-Anselmo (Torres), appeals his convictions following a stipulated bench trial on charges of second-degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-2 (now 720 ILCS 5/9-2 (West 1992))) and aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2 (now codified, as amended, at 720 ILCS 5/24- 1.2 (West 1992))). Torres contends the trial court erred in (1) finding him guilty beyond a reasonable doubt of second-degree murder, (2) refusing to apply the self-defense or defense of a dwelling affirmative defenses to both charges, (3) considering the cause or threat of serious harm as an aggravating factor during sentencing, and (4) considering a potential deterrent effect in determining the sentence. He also contends (5) that the firearm charges are inconsistent with the second-degree murder charge, (6) that the trial court denied him his right to allocution prior to sentencing, and (7) that the sentence imposed was excessive. We affirm.

Testimony at trial adduced the following facts. Late in the afternoon of April 14, 1992, a group of teenagers were congregated on the corner of Franklin and College Streets in Elgin, near Elgin Academy. The group included Alicia McGrail, Carla Gutierrez, Alejandro Mendez (a/k/a Gringo), and Amaury Velez (Maury). Alicia testified that she was the defendant's girlfriend at the time of the incident. She further testified that on the day of the incident, Maury was flirting with her and attempting to kiss and fondle her as they "hung out" on the corner. According to several trial witnesses, the defendant drove past the assembled group at approximately 5 p.m. on the way to his home at 362 Franklin, about a block away. After parking his vehicle, the defendant rode a bicycle back to the corner and confronted Maury regarding his behavior with Alicia and Torres' belief that Maury was the source of "threatening" letters he allegedly received. After some posturing and name calling, Maury allegedly told the defendant, "I don't want no trouble with you" and attempted to shake the defendant's hand. One account said Torres brushed off the gesture, jumped on his bike, and rode back to his house. Torres told police he shook Maury's hand before leaving andfelt the situation was resolved. Shortly thereafter, the gathering on the corner broke up, and Alicia and Carla walked to Alicia's house about a half block away on College Street.

Approximately 20 minutes later, Velez, Mendez and at least two other youths, Victor Perez (a/k/a Coque) and Edwin Crespo, came to Alicia's house brandishing sticks, pipes and baseball bats, some apparently inscribed with gang insignia and embedded with nails. Alicia testified that they made reference to being on their way to Torres' house to "get him." Shortly thereafter, while Crespo waited at the corner, Mendez, Velez, Perez and possibly several other youths headed up the street and reassembled in front of Torres' residence, where they fanned out around the building and began smashing windows and yelling. One of the men also smashed the windows on a truck parked in the driveway and a car alarm began shrieking.

Inside the house were Torres, his brothers Epifanio, Hector and Isabel Carachure, his cousin Lorenzo De Los Santos (a/k/a Lorenzo Soto), his sister-in-law Nercedalia Carachure, his mother Maria Concepcion Anselmo and two small children, and possibly one or two other relatives or friends of the family. There were two other small children from the household playing in the backyard at the time of the incident. Testimony indicated that one of the women was injured by flying glass while attempting to shield two of the children during the attack on the house.

Torres, Soto, and Epifanio Carachure exited the house through a side door and ran around to the front porch as the attackers retreated up the street. Evidence showed that Soto fired a .22 caliber shotgun or rifle. Epifanio admitted he fired a .380 handgun "in the air." Torres admitted he also shot a .380 handgun "in the air" and told police that he was shooting variously in the direction of the youths and "over their heads." Melody Van Wambeke, Veronica Currey and Sabrina Currey, who saw the incident from a house across the street, testified that Torres fired several shots with his feet planted and his arms extended parallel to the ground. Several of the youths admitted to being involved in the attack on the defendant's house and testified they felt bullets whiz past their heads as they ran from the scene.

During the shooting, Hector Carachure was inside the house placing a phone call to the police. That call and several calls from neighborhood residents reporting shots fired were received by the police dispatch center and relayed to officers at approximately 6:18 p.m. Several officers responded and began investigating the damage to the residence and interviewing the family members. One officer, Daniel Radmer, asked if he could look inside the home. After receiving permission, he apparently looked for evidence that a gun had beenfired into the house but, finding none, he went back outside and rejoined other officers still questioning family members in the driveway and side yard.

According to varying accounts, sometime between 6:18 and 6:30 p.m., the police received a call that someone had been shot at Elgin Academy. Several officers responded to the Academy's Sears Hall, where they were directed upstairs to the second-floor cafeteria. There they found Earl Harris, a custodian, lying dead from a bullet wound to his head. Officer Michael Whitty traced the approximate trajectory of the bullet, and found small holes in the glass and screen of a window facing in the direction of 362 Franklin. He then notified the officers at the defendant's home of a probable connection between Harris' death and the shots fired at 362 Franklin. Surveyors were called, and they pinpointed the source trajectory as being within a small area immediately adjacent to the front porch at 362 Franklin, where witnesses had reported Torres stood as he fired after the fleeing attackers. It should be noted that, although the cafeteria is considered to be on the second floor of Sears Hall, it sits at ground level on the side facing 362 Franklin due to the slope of the hillside into which Sears Hall is built.

The sequence of the following events is unclear from the trial record, but all happened between the initial call at 6:18 and the execution of a search warrant at approximately 10 p.m. At least a dozen officers were now working the investigation at 362 Franklin. The record shows that some officers were inside the house talking to the defendant's mother and sister-in-law, and several were in the driveway talking with Isabel Carachure, whom officers believed to be the owner of the residence. The officers talking to Isabel asked if there were any guns in the house. Isabel said yes and motioned for the officers to follow him. Two officers, Brian Gorcowski and Thomas Quigley, followed Isabel into the house through the side door. Isabel led them to a freezer in the dining room and moved aside some papers, revealing a handgun. One of the officers immediately grabbed Isabel's hands and led him back outside, while the other officer retrieved the gun, unloaded it, and turned it over to an evidence technician. The officers testified that they then asked Isabel for permission to search the house and he assented.

Another officer, Tracy Kaminski, entered the house and turned toward the back, where two bedrooms are located. Kaminski saw the defendant duck into the first bedroom. The officer followed and caught the door just as the defendant tried to close it. Kaminski testified he asked if he could search the room, and the defendant assented. The defendant then left the room as the officer entered. Kaminski founda .380 caliber handgun and a box of .22 caliber ammunition under some clothes on a bedside table.

At about the same time, Officer Whitty, who had just arrived at 362 Franklin from the murder scene at Elgin Academy, noticed a gray bucket on the front porch of the house. He stepped closer, looked in the bucket, and saw several shell casings inside. He retrieved the bucket and handed it over to an evidence technician.

Officer Whitty was then beckoned across the street by Melody Van Wambeke, who said she had witnessed the incident from a house almost directly across from 362 Franklin. The officer testified that Van Wambeke identified the defendant as having fired a handgun at the fleeing subjects as they ran in the direction of Elgin Academy. Whitty called across the street to another officer to arrest the defendant. Torres and all of the other adult males from 362 Franklin (except Hector, who uses a wheelchair) were taken into custody and placed in squad cars. The defendant was subsequently charged with first-degree murder and two counts of aggravated discharge of a firearm.

At some point several police supervisors arrived. After some discussion, the search of the residence was halted pending application for a search warrant. A judge signed a warrant at 9:48 p.m., and the warrant was served by Detective James R. Barnes at 10:04 p.m. Barnes supervised an organized search of the residence which turned up at least one other weapon, as well as a loaded gun clip which did not fit any of the seized weapons, and numerous other items such as ammunition. It should be ...

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