Appeal from the Circuit Court of Cook County. Honorable Edward M. Fiala, Jr., Judge Presiding.
Petition for Leave to Appeal Denied April 3, 1996.
Presiding Justice Greiman delivered the opinion of the court: Tully, J., concurs. Cerda, J., dissents.
The opinion of the court was delivered by: Greiman
PRESIDING JUSTICE GREIMAN delivered the opinion of the court:
The brothers Hill (defendants) were convicted by a jury of the attempted first degree murders of Jose Tanon and Elizabeth Perez, aggravated battery with a firearm, and aggravated discharge of a firearm. Defendants were sentenced to 12 years' imprisonment for each count of attempted murder, and 12 years for aggravated battery with a firearm, the sentences to run concurrently.
On appeal, defendants raise issues as to whether: (1) the evidence was sufficient to establish the element of specific intent to kill Elizabeth Perez required to sustain a conviction for attempted first degree murder; (2) the testimony of witnesses Jose Tanon and Yesenia Chavallo was inconsistent, impeached, and improbable, and thus insufficient to establish defendants' guilt beyond a reasonable doubt; and (3) allegedly erroneous jury instructions on attempt first degree murder require reversal.
Jose Tanon (Jose) testified that on April 15, 1993, at approximately 2 p.m., he observed Lorenzo Hill selling narcotics in front of Jose's two-flat building located at 1727 Artesian Street in Chicago. Jose, his common-law wife, Elizabeth Perez (Elizabeth), and their three young children occupied the building's first floor, while Jose's relatives lived on the second floor. Jose knew defendants Lorenzo a/k/a "Soso" and Ramon a/k/a "Moni" Hill, both in their mid-twenties, "from the neighborhood" in which all had resided for 15 years.
Jose approached Lorenzo at the conclusion of a drug transaction, and told him "I don't want nobody dealing in front of my house." Lorenzo replied, "I can deal anywhere I want, and if you (Jose) don't like it, I'll f... you and your family up." Jose and Lorenzo then parted company.
At 8 p.m. that evening, Jose was reading on the second floor of his building, which was illuminated, while Elizabeth and the children were on the first floor. Jose heard gun shots fired at his building and, from the second floor window, observed a late model turquoise Oldsmobile driving away. Jose could not identify the car's occupants. Jose later observed bullet holes on the front wall of the first floor bedroom, living room, and windows.
Police Officer Sebastian responded to Jose's phone call reporting the incident, spoke briefly with Jose, took note of the bullet holes, and "canvassed the area" before leaving.
Fifteen minutes later, at approximately 9 p.m., Jose heard a car brake sharply outside his building, followed by rapid-fire gunshots. Jose, seated near the second story window, observed Ramon Hill firing a handgun from the open passenger-seat window of a red, four-door Oldsmobile, and Lorenzo Hill firing a handgun through the car's rear window. Jose testified that Ramon, upon observing him looking out of the second floor window, aimed and fired two shots in his direction. The car then sped off.
Elizabeth testified that when the shots were fired, she grabbed her children and "threw my body on top of them." Elizabeth then "felt a sharp pain in my left calf." Elizabeth observed that the children were "hysterical" and "vomiting" but otherwise unharmed, and that her calf was red and beginning to swell. Elizabeth screamed, "I've been shot."
Jose ran downstairs, observed that the front window was shattered and his family was hysterical, and called the police. Officers Flores and Domenech responded, and asked Elizabeth if she wanted medical attention for the injury to her left calf. Elizabeth declined, not wishing to leave her children to go to the hospital. The officers observed several bullet holes throughout the first-floor apartment, including three in the front door. Jose identified Ramon and Lorenzo as the shooters, and accompanied the officers to the Hill residence, which was, at the time, unoccupied. Jose told the officers that the defendants had threatened him earlier in the day.
At approximately 8:50 p.m., Yesenia Chavallo (Yesenia), Jose's sister, was parking her car in the alley adjacent to the Artesian Street residence, when she observed, from "about 20 feet" of "well-lighted" pavement, the red oldsmobile with the Hill brothers firing from its open windows. Yesenia's boyfriend was with her and the two retreated down the alley. Yesenia testified that the Hills fired several shots in succession. Yesenia spoke with the officers and independently identified the defendants. *fn1
Officer Flores, as the State is quick to note, is a "rookie" with 18 months of experience. He wrote the reports on this incident which contained some inconsistencies, omissions, and inaccuracies. His first report did not list Elizabeth as a victim, and indicated that the defendants threatened Jose two weeks prior, and not on the day of, the shooting. Flores was asked by his superiors to "rewrite the report," which he did, the revised version indicating that Elizabeth was "struck by a bullet" causing "minor bruising" to her calf. Flores testified that the mistakes in the initial report were "oversights."
At trial, each defendant presented an "alibi" witness. Luz Castro, Lorenzo's girlfriend and mother of his child, testified that Lorenzo picked her up from work at 5 p.m. on the day of the shooting. Leida Rodriquez, Ramon's girlfriend, testified that Ramon ...