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02/17/95 PEOPLE STATE ILLINOIS v. VICTOR BABIARZ

February 17, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
VICTOR BABIARZ, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE RALPH REYNA JUDGE PRESIDING.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and O'brien, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

BACKGROUND

The defendant-appellant Victor Babiarz was charged with theFebruary 12, 1989 murder of Miguel Panigua. On July 25, 1991, a jury found the defendant guilty and the circuit court entered judgment on that verdict. The court subsequently sentenced the defendant to a forty year term of imprisonment. For the reasons set forth below, we affirm both the defendant's conviction and his sentence.

FACTS

The defendant filed a motion in limine to exclude from evidence a 9 millimeter handgun recovered from his residence at the time of his arrest. The State conceded that the recovered handgun could not have been used in this offense. The court subsequently denied the defendant's motion.

Trial commenced on July 23, 1991. John Alvarado testified for the State that he was inside Street in Chicago at about 11:00 p.m. on February 12, 1989 when he heard approximately five gunshots on 23rd Street, just outside of his residence. He stated that the first report sounded softer than those that followed, as if from a smaller firearm. Alvarado went outside and found the victim, Miguel Panigua, laying on the sidewalk before 2620 W. 23rd Street. Panigua was alive but had multiple gunshot wounds.

Maria Ramirez testified next and stated that she lived at 2611 W. 23rd Street on February 12, 1989 and also heard five or six gunshots at approximately 11:00 p.m. She immediately went to a window and saw two males, whom she could not identify, walking eastbound on the north side of 23rd Street at a fast pace. They proceeded past her apartment and then ran northbound through a gangway at 2606 W. 23rd Street.

Boyce Flowers also testified, stating the he, the defendant, Alexander Sanchez, and Francisco Sanchez, Alexander's brother, all belonged to a street gang called the Cullerton Deuces. At approximately 10:00 p.m. on February 12, 1989, Flowers sat in a car with Francisco Sanchez and others. Francisco exited that car and spoke briefly with his brother Alexander and the defendant; Alexander and the defendant then walked away.

Approximately one hour later, the defendant and Alexander Sanchez returned to the car. Both appeared "excited, nervous." The defendant stated that "we just shot a Disciple on 23rd Street" and "we lit them up ugly." Alexander Sanchez stated "we got a D, a Disciple." Either the defendant or Alexander then said "we did that for you, Francisco." Flowers stated that the Satan Disciples were the major rival street gang of the Cullerton Deuces and that in July of 1988 Francisco Sanchez had been shot, presumably by a Satan Disciple.

Chicago Police Detective John Summerville testified that he developed information that the defendant had been one of the assailants in this case and therefore went to his apartment on March 3, 1989 to arrest him. Before Summerville arrived at the defendant's apartment he discovered an outstanding arrest warrant for him but did not know the offense upon which that warrant was based.

The defendant's grandfather admitted Summerville and other detectives into the apartment where they discovered the defendant hiding in a closet. Summerville stated that the grandfather gave them a 9 millimeter handgun which he said had been within a rolled carpet outside, on a rear porch. Summerville identified this handgun in court but testified that it could not have been used to shoot the victim.

Summerville and Detective Ricardo Abreu interviewed the defendant at the Area 4 Detective Division office on the early morning of March 3, 1989. The defendant confessed that on February 12, 1989 he and Alexander Sanchez shot the victim. He stated that he and Alexander decided to shoot a member of the Satan Disciples and that both were armed with handguns, he with a small semiautomatic and Alexander with a larger handgun. They encountered the victim on 23rd Street and, after an exchange of gang hand signals, identified him as a Satan Disciple.

According to Summerville's testimony, the defendant stated that he and Alexander Sanchez initially proceeded to rob the victim at gunpoint but, after the victim again flashed Satan Disciple hand signs, Alexander shot him several times. The defendant admitted firing his gun only once, deliberately missing the victim. They then fled, hid their guns in an alley, and rejoined Boyce Flowers, Francisco Sanchez, and the others in the car.

Assistant State's Attorney Kay Hanlon testified that she interviewed the defendant later in the morning of March 3, 1989 and that he made essentially the same confession that he made to Summerville and Abreu. However, in this later confession the defendant clarified and changed his earlier statement. Alexander Sanchez had telephoned him, requesting that he come to the neighborhood of 21st Street and Washtenaw. The defendant did so and brought along his .25 caliber semiautomatic.

He met Alexander Sanchez and they agreed to shoot a Satan Disciple in retaliation for the July 1988 shooting of Francisco Sanchez, Alexander's brother, for which they believed the Satan Disciples to be responsible. The defendant admitted that he and Alexander neither intended nor attempted to rob the victim. The defendant stated that Alexander shot the victim five or six times but that he shot him only once.

The State presented the following testimony relating to the physical evidence in this case. Officer James Shadur of the Chicago Police Department testified that he responded to 2620 W. 23rd Street immediately after the shooting and recovered one cartridge casing ...


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