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01/20/95 PEOPLE STATE ILLINOIS v. JOSE FLORES

January 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
JOSE FLORES, DEFENDANT-APPELLANT



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE MARY MAXWELL THOMAS JUDGE PRESIDING.

The Honorable Justice Gordon delivered the opinion of the court: McNULTY and O'brien, JJ., concur.*

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

BACKGROUND

The defendant-appellant Jose Flores was charged with burglary and looting arising from an incident which occurred on June 1, 1988. A jury returned verdicts of guilty on both charges on December 15, 1989 and the circuit court entered judgment on those verdicts. On January 24, 1990, the court sentenced the defendant to concurrent terms of three years for burglary and two years for looting. For the reasons set forth below, we affirm both of the defendant's convictions.

FACTS

On October 5, 1989 the circuit court set December 12, 1989 as the defendant's final trial date. The State answered ready for trial on December 12th, with the victim, two witnesses, and one police officer present in court; the assistant public defender who represented the defendant on that date requested a continuance. We note that the Cook County Public Defender's office had represented the defendant continuously since his arrest but that the particular assistant who represented the defendant on December 12th had not previously appeared on his behalf.

The defendant's counsel explained that although "[he] had an opportunity to review the file, the facts of the file, and an opportunity to talk to [his] client" he was not ready for trial then because "there are some discovery matters which quite honestly were not done in this case." Specifically, he requested a continuance to obtain discovery materials relating to an investigation of the origin of a fire at the victim's apartment and to obtain medical records relating to injuries the defendant sustained at the time of the underlying occurrence. Counsel stated that such additional discovery would have been important because if the victim had set fire to his own apartment his credibility would have been damaged and because medical records showing the extent of the defendant's injuries could possibly have corroborated his alibi. The defendant's counsel advanced no other grounds in support of his motion for a continuance.

The circuit court denied the defendant's motion for a continuance, noting that his case had been originally set for trial on October 24, 1988, had been continued six times since then, and that December 12th had been set as a final trial date approximately two months earlier. It also found that the additional discovery for which the defendant sought the continuance would likely not yield relevant evidence. We note here that although the court denied the defendant's motion for a continuance on December 12th, his trial did not commence until December 14th because he first requested a jury trial at the December 12th hearing.

At trial, the State's first witness, the victim Daniel Zavala, testified that on June 1, 1988, at approximately 4:15 p.m., a fire occurred inside his apartment located at 2345 W. 21st Street in Chicago. Because of the damage to his apartment, Zavala and his family arranged to stay at the residence of George Almanza, immediately next door at 2343 W. 21st Street. At approximately 11:00 p.m. on June 1, 1988, the victim returned to his fire-damaged apartment and at that time heard noises coming from its kitchen. The victim observed the defendant, whom he identified in court, inside his kitchen holding his saw, his drill, and his wife's purse. Upon being discovered the defendant told the victim "don't worry. You go looking for yourself, and I go looking for myself. And if you find something, it's for you. If I find something, it's for me. Okay?"

The victim then summoned Jose Almanza and both observed the defendant attempting to run from the apartment with the victim's property. They then used physical force to prevent the defendant from leaving, removed him from the apartment through its front door, and held him for the police. The victim also testified that a board which had been placed over a hole created because of the earlier fire had been removed.

When the police arrived the victim noticed that the defendant was wearing his wristwatch, which the officers then removed and returned to him. The victim later identified as his property two additional watches, a whistle and a Christmas card which the police recovered from inside the defendant's clothing.

Jose Almanza testified next for the State. He corroborated the victim's testimony, identifying the defendant in court as the person they discovered in the victim's apartment on the evening of June 1, 1988. Almanza stated on cross-examination that in preventing the defendant from fleeing he pushed him down twice and that he may have struck him.

The State's next witness, George Almanza, corroborated the testimony of both the victim and Jose Almanza, stating that he observed them remove the defendant from the victim's apartment and that the defendant at that time struggled with them. George Almanza testified that he then hailed two police officers who investigated and then arrested the defendant.

Officer Walter Tarka of the Chicago Police Department was the State's next witness and testified that he and his partner arrested the defendant on June 1, 1988 after learning that he was discovered inside the victim's apartment taking property. Tarka confirmed that the victim observed his wristwatch on the defendant's wrist and that he returned it to him.

As Tarka transported the defendant to a police station after his arrest, the defendant "keeled over" to one side, indicating that he required medical attention. The defendant was then brought to a nearby hospital where hospital personnel undressed him. Tarka then discovered two watches, a whistle, and a Christmas card inside his clothing. The victim, as noted above, later identified those items as his property.

After Officer Tarka's testimony, the State rested and the defendant testified on his own behalf. He denied ever entering the victim's apartment but explained that as he walked down 21st Street on the evening of June 1, 1988 a group of men called him names and then attacked him, striking him repeatedly and causing him to "lose consciousness about five times." The defendant could not identify those men and stated that police officers, who arrived as he lay on the ground, spoke with his attackers, after which the officers entered a nearby, fire-damaged building.

The defendant further testified that while the officers were inside that building, the men who had just beaten him "removed [his] watch and went through [his] pockets." The defendant stated that he remained hospitalized for about two days after the beating but the court subsequently sustained the State's objections, based on relevancy, to questions asked of the defendant concerning the extent and nature of his injuries. On cross-examination, the defendant denied possessing any of the property which Officer Tarka recovered from his clothing at the hospital. He further denied that the police officers who arrested him removed a watch from his wrist. He ...


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