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June 28, 1996


Appeal from the Circuit Court of Cook County. Honorable Joseph J. Urso, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice O'brien delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Following a jury trial, defendant, Ramon Delgado, was found guilty of two counts of first-degree murder and sentenced to natural life in prison. On appeal, defendant contends the trial court erred by (1) refusing his tendered instruction on second-degree murder based on provocation; and (2) allowing a pathologist to testify to the amount of cocaine found in the victims' bodies. We affirm. At trial, Rhonda Tolden testified that at approximately 10 p.m. on January 12, 1989, she was in her apartment with her mother, Joyce Tolden, and a friend, Orlando Valentin. Defendant came by and stated he wanted to get "high," so Rhonda, Joyce, and defendant walked back to the kitchen, where they introduced defendant to Orlando. Defendant took out the cocaine he had brought with him, and the four of them smoked it.

Rhonda and Joyce then left the kitchen, but they soon heard noises coming from there. Rhonda and Joyce reentered the kitchen, where they saw defendant going through drawers and looking in the trash. Orlando was sitting in the kitchen, watching defendant.

Joyce asked defendant what he was doing and told him to go home, but defendant did not respond. Rhonda then called the police and told them someone was in her home who refused to leave. Meanwhile, defendant had walked partially into a bedroom and continued to look through "things." Orlando continued to watch defendant.

When the police arrived, Rhonda went down the front stairs to meet them. Defendant followed her down the stairs, and Rhonda pointed defendant out as the person who had refused to leave her apartment. Rhonda then went back up the stairs to her apartment and closed the door. She looked out a window and saw the police briefly talk to defendant before they allowed him to walk away.

About 15 or 20 minutes later, Rhonda heard the sound of pebbles being thrown at her window. When Rhonda went to the window, she saw defendant standing outside. Rhonda opened the window, and defendant told her he wanted to apologize for the way he had acted toward Joyce. Rhonda and Joyce let defendant into the hallway outside her apartment, and defendant apologized to Joyce and said he wanted to make it up to them by getting some more cocaine from his house.

Rhonda and Joyce gave defendant a ride to his house. Defendant went inside and came out about 10 minutes later. Defendant said he "got it," so they drove back to Rhonda's apartment. When they entered the apartment, Rhonda immediately walked into the bathroom. As she was using the bathroom, Rhonda heard a loud banging noise and then another loud noise that sounded like something hitting a wall. She heard Joyce yelling "call the police, Rhonda, call the police."

Rhonda ran out the bathroom toward the kitchen, where she saw defendant holding Orlando against the refrigerator and stabbing him in the chest. Orlando was trying to get away, but all he could do was "flail with [his] arm." Orlando had nothing in either of his hands.

Rhonda ran out of the apartment and went upstairs to the third-floor apartment, where she banged on the door and screamed for help. Rhonda was allowed inside the apartment, where she called the police. When the police arrived, Rhonda led them to the back of her apartment, where she saw Orlando lying dead on the floor partially in the doorway of the bedroom and kitchen. She then led the police into the kitchen, where she saw Joyce "curled up" dead in the corner by the back door.

Rhonda made a statement to the police, describing defendant as a 6-foot, 2-inch, 280-pound Hispanic man with an Afro who walked with a limp. Officer Richard Holub testified that at about 4:15 a.m. on January 13 he and his partner arrested defendant near 2700 North Kimball Street. Rhonda testified that around 5 a.m. on January 13 police officers took her to a room in the police station, where she identified defendant as the offender.

Detective Lawrence Holec testified he met with defendant in an interview room at the police station shortly after his arrest. Defendant told Holec that at about 10:30 p.m. on January 12, 1989, he went to Rhonda's apartment, where he met Rhonda, Joyce, and Orlando. The four of them free-based cocaine. However, defendant began to argue with Joyce, Rhonda, and Orlando because he believed they were stealing some of his cocaine and hiding it in the apartment. He refused to leave and instead began to look for the cocaine.

Detective Holec further testified that Rhonda threatened defendant with a knife and told him she would call the police if he did not leave; however, defendant remained in the apartment. When the police did arrive, defendant "left voluntarily and waited down the street until the police left." Defendant then returned to Rhonda's apartment, apologized, and told them that if they went back to his house he could get some more cocaine.

Rhonda and Joyce drove defendant back to his house, where he took a kitchen knife and put it underneath his jacket. Defendant returned to the car, and they drove back to Rhonda's apartment. Once inside the apartment, defendant and Joyce began talking in the living room. When Joyce got up to walk to the kitchen, defendant took the knife from his coat ...

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