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May 1, 1996


Appeal from the Circuit Court of Cook County. No. 92--CR--25697. Honorable Shelvin Singer, Judge Presiding.

Rehearing Denied October 21, 1996. Released for Publication November 18, 1996.

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

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Following a bench trial, defendant, Demaso Meras, was convicted of two counts of first-degree murder (720 ILCS 5/9-1(a) (West 1992) and sentenced to 45 years' imprisonment. On appeal, he asserts that (1) the trial court erred in admitting the victim's dying statement to his brother as an excited utterance; (2) he was not proven guilty beyond a reasonable doubt; (3) the indictment was fatally defective because the State modified the cause of death in its closing argument; (4) his conviction should be reduced to second-degree murder; (5) he was denied effective assistance of counsel; and (6) his sentence was excessive. We affirm.

Mickey Campbell, the bartender at Tuman's Tap, 2159 West Chicago Avenue, Chicago, testified that the victim, Julian Sotelo, looked in the tavern's open window at 8:30 p.m. on June 12, 1990, to say, "Hi." A couple of minutes later, Anthony Raimondo came into the tavern. Less than five minutes passed before a police officer summoned Campbell outside, where she saw the victim on the ground. He was unconscious and blood was gushing from his nose and mouth.

Anthony Raimondo testified that he saw the victim and two other men outside Tuman's Tavern on June 12, 1990. He had known thevictim for five years and had seen the other two men once before in Tuman's. For a few seconds, Raimondo watched the victim arguing with one of the other men, later identified as defendant, about money. Then, he went into Tuman's and ordered a beer. No more than a minute later, he heard screaming from outside. He ran outside where he saw the victim lying on the ground in a pool of blood two to three feet from the front door, which was where he had been arguing with defendant. The victim was unconscious and his brother, Carlos, was at the scene.

Carlos Sotelo testified that the victim went toward Tuman's Tavern on his bicycle on the evening of June 12, 1990. About 10 minutes later, Carlos saw him unconscious on the ground outside the tavern. In an effort to revive his brother, Carlos asked him, "who did it." In Spanish, the victim told Carlos "the same guys from last night."

Carlos explained that the previous night, he had spoken to defendant in Tuman's Tavern. An hour later, he returned home to see defendant arguing with the victim on the Sotelo's back porch. From 10 to 15 feet away, he heard the two men arguing for 10 to 15 minutes about money the victim owed defendant.

Chicago police officer Juan Acosta testified that he was in the community police office across from Tuman's Tavern when he saw three Hispanic men standing on the corner. Twice, he looked away then looked back at the three men. The second time, he saw one man down on the sidewalk and two men running away.

Chicago police officer Mike Miller testified that he showed several witnesses a photograph of defendant. Raimondo identified defendant's photograph from a group of six photographs.

Chicago police detective David Dal Ponte testified that he conducted two lineups with defendant on October 13, 1992. Raimondo and Carlos both positively identified defendant from the lineups. After being advised of his Miranda rights, defendant told Dal Ponte that he had been in Mexico since July of 1990 and returned three months earlier. He stated that he was outside the tavern with several other people shortly before the victim was beaten to death, but he did not do anything.

There was a stipulation that if Dr. Eupil Choi, the Cook County Medical Examiner, testified, he would state that he performed the autopsy on defendant. The autopsy report was admitted into evidence. It stated that there was massive bruising and swelling to the victim's eyelids, lips, chest, lower torso, arms, and legs, and massive hemorrhaging and contusions to his brain. The cause of death was multiple injuries due to blunt trauma.

Defendant presented no evidence in his defense. Following arguments, the trial court found defendant guilty of first-degree murder and sentenced him to 45 years' imprisonment.

The first issue on appeal is whether the trial court erred in admitting the victim's statement to his brother as an excited utterance. When the victim regained consciousness at the scene, Carlos asked him who was responsible and he responded, "it was the same guys from last night." We do not need to address whether the statement was a dying ...

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