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02/28/96 PEOPLE STATE ILLINOIS v. GILBERTO JUAREZ

February 28, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GILBERTO JUAREZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Ralph Reyna, Judge Presiding.

The Honorable Justice Tully delivered the opinion of the court: Rizzi, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Defendant was charged with an aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)). After a bench trial, defendant was convicted and sentenced to 14 years imprisonment. It is from this judgment of conviction that defendant now appeals to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d. R. 603).

For the reasons which follow, we affirm the judgment of the circuit court as modified.

FACTUAL BACKGROUND

The following pertinent facts were adduced at trial. On April 15, 1994, around 3 a.m., six people were riding in a car down West 17th Street in Chicago, Illinois. Lynn Gutierrez and Charrissa Leonard, two witnesses, were passengers in the backseat of the car driven by Nicholas Rouley. While driving in the vicinity of 1137 West 17th Street, Gutierrez and Leonard observed a group of people standing in front of Leonard's house "throwing up gang signs" and shouting gang slogans. They continued driving down the street, but stopped when they saw a police officer at the corner of 18th Street and Racine Street. The six occupants of the car then told Officer Roberto Vargas and his partner, Officer Joe Panos, about the group of people they had seen making gang signals. Although initially incredulous, Vargas eventually agreed to follow them in his squad car to 1136 West 17th Street.

As the two cars approached the area, Leonard testified that the group of people had dispersed upon seeing the police squad car. Leonard and Gutierrez both testified that while Rouley continued driving down the street, defendant came out from between two parked cars, pointed a gun and shot at them. Although Leonard stated that she did not get a close look at defendant, she was able to give a description of defendant based on his clothing. Leonard recalled that after the shooting, she saw defendant begin to flee. The other witness, Gutierrez, recounted with some inconsistencies that she saw defendant's face and the gun in his hand when he began shooting, but then immediately ducked and stayed down until the car reached the middle of the block. Gutierrez did not see defendant again until he was in police custody.

Next, Vargas testified that he first heard two shots being fired. Vargas further testified that he clearly saw defendant emerge from parked cars 10 feet away from him, point a gun and fire four more times in the direction of Rouley's car. Vargas saw the muzzle flash from defendant's hand. Vargas recalled that the street was illuminated by artificial lighting, and that no one else was in the immediate area around defendant. In order to cut off defendant's escape route, Vargas pulled up next to the parked cars, near the location he had seen defendant. As a result, defendant ran into the squad car, injuring himself. Defendant was subsequently arrested. Although a gun was recovered from the ground, fingerprints were not lifted from it. Vargas also mentioned at trial that he had examined the victim's car, and noticed a bullet hole in the left front quarter panel.

At trial, defendant took the stand on his own behalf. He stated that on the night in question, he went out to his car to retrieve a suede shoe cleaner. Defendant testified that as he passed an alley, he saw a car coming, with its passengers flashing gang signals and shooting. He further testified that he also observed a group of people nearby. Some of the people chased the car while others ran away. Defendant recalled that he ducked in order to avoid the cross-fire. Defendant further recalled that he tried to get the license plate number of the car, but his view was blocked by an unidentified man shooting at the car. He recounted that as he attempted to cross the street, a police car hit him from behind, knocking him over. The police arrested him, even though he did not have a weapon on him.

On cross-examination, defendant said that he did not make a confession to Detective Meyer. He stated that he did not admit pulling a gun from his waist and firing six shots, while yelling "PPK," which is the abbreviation for the "Party People Killer" gang. Defendant has a tattoo of a bunny on his leg, which is known to be a symbol for the Party People Killer gang. He denied ever belonging to the Party People gang or that the tattoo signified any affiliation to the gang. Rather, defendant stated that when he got the tattoo 14 years ago, he intended it to resemble the Playboy bunny. After defendant's testimony, the State proffered a certified copy of defendant's prior conviction for possession of a controlled substance. On rebuttal, the State recalled Vargas, who testified that defendant admitted his affiliation with the Party People Killer gang.

For the record, the defense stated that, before trial, he had requested permission to issue a subpoena for Rouley, which the court refused. The trial court's reasoning was that no subpoenas had been issued from the time the trial date was set, July 19, 1994, to the actual trial date, August 8, 1994. Defense counsel told the trial court he had expected that the State would subpoena Rouley.

The trial court denied defendant's motion for a new trial and proceeded to conduct a sentencing hearing. After a bench trial, defendant was convicted and sentenced to 14 years' imprisonment for ...


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