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08/01/96 PEOPLE STATE ILLINOIS v. XAVIER ARCOS

August 1, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
XAVIER ARCOS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 91 CR 7432. Honorable Michael B. Getty, Judge Presiding.

Released for Publication August 29, 1996.

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

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

We review a conviction for murder after a bench trial. The trial court sentenced the defendant to 55 years in prison. The defendant appealed. We granted a petition for bond pending appeal and the state appealed that order. The supreme court denied the state's petition to revoke bond.

The issue we face is whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt. That evidence consisted of a written statement and the grand jury testimony of an eyewitness to a murder admitted as substantive evidence under section 115-10.1 of the Illinois Code of Criminal Procedure. 725 ILCS 5/115-10.1 (West 1993). No issue is raised about the admissibility of the statement and grand jury testimony as substantive evidence under the statute.

The witness, Wilfred Rosario, disavowed his written statement and grand jury testimony at trial.

At the close of evidence the trial court found that, though Rosario was a "thoroughly disreputable person who cannot be believed," his written statement and grand jury testimony were more credible than his disavowal at trial.

Rosario's written statement and grand jury testimony named the defendant as a participant in the crime with Rudy Martinez. In accepting the written statement and grand jury testimony of Rosario, and rejecting the disavowal, the trial court relied upon additional evidence characterized by the State and the court as corroborative of the written statement and grand jury testimony. Our review of the alleged corroborative evidence relied upon by the trial court leads us to the opposite conclusion. We reverse.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 87 Ill. Dec. 910 (1985). We defer to the observations and credibility findings of the fact finder. Our relevant inquiry is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young, 128 Ill. 2d 1, 48, 538 N.E.2d 453, 131 Ill. Dec. 78 (1989). As we follow these principles of review and carefully comb the record, should we find the evidence insufficient to remove all reasonable doubt of the defendant's guilt and not sufficient to create an abiding conviction of his guilt, we must reverse. Young, 128 Ill. 2d 1, 48, 538 N.E.2d 453, 131 Ill. Dec. 78. Our reversal in this case is based upon a finding that the evidence relied upon by the trial court to corroborate the testimony of Wilfred Rosario failed to support the identification of the defendant as a participant in the crime.

The record before us reveals that Chicago police detective Eveland responded to a radio dispatch and found a dead man in an alley on north Spaulding Avenue in Chicago on July 29, 1988. The dead man was identified as Orlando Guirola. He had been shot seven times. The initial investigation revealed no eyewitnesses.

Dr. Shaku Teas, a forensic scientist in the office of the Cook County Medical Examiner, performed an autopsy on Guirola the next day. Dr. Teas concluded that the seven gunshot wounds caused Guirola's death. His report also disclosed ligature wounds around the neck.

Chicago police detective Renaldo Guevara testified that on January 26, 1991--approximately two and one half years after Guirola's death--he received a telephone call from Edith Campos. She complained of a domestic dispute with Wilfred Rosario. Guevara went to the Campos home.

When Guevara arrived, Campos told him that Rosario had hit her and pointed a gun at her. Guevara arrested Rosario and took him to Area Five headquarters. Guevara asked Rosario about some murder investigations Guevara was working on. He said Rosario told him about a crime in 1988 in which two persons shot a man somewhere around Grand and Spaulding in Chicago. Guevara was ...


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