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February 7, 1997


Appeal from the Circuit Court of Cook County. Honorable Loretta Hall Morgan, Judge Presiding.

Released for Publication March 13, 1997.

The Honorable Justice South delivered the opinion of the court. Hoffman and Hourihane, JJ., concur.

The opinion of the court was delivered by: South

JUSTICE SOUTH delivered the opinion of the court:

Following a jury trial, defendant, Rolando Serrano, was convicted of first-degree murder and three counts of armed robbery and sentenced to concurrent prison terms of 35 years for first-degree murder, and 20 years for each armed robbery. He now appeals, contending that there was no probable cause for his arrest, the failure of counsel to offer an instruction on his theory of defense denied him his right to effective assistance of counsel, and his murder sentence is excessive.

At the hearing on the motion to suppress evidence, Detective John Santo Padre testified that on December 10, 1990, he was investigating the homicide and armed robbery of James Lyons, who was fatally shot in the head at a tavern at 4164 West Grand Avenue in Chicago. On that day or the next, Santo Padre received a telephone call from a man named Herich, who identified himself as a supervisor at Kedvale Park, which was near the crime scene. He told Santo Padre that he had heard some of the youths who frequent the park say that "Fee-Fee" was bragging about killing the man at the tavern on Grand Avenue. Herich said he knew Fee-Fee from park activities and that he lived somewhere on Kedvale Avenue and went to Orr High School.

Santo Padre asked Herich to look through his records and see if he could find Fee-Fee's name and address. A day or two later, Herich told Santo Padre that "Fee-Fee" was defendant Rolando Serrano, who he described as a 14- or 15-year-old white Hispanic, about 5'5" or 5'6", 120 to 130 pounds, with black hair who lived near the park somewhere on Kamerling Avenue. This matched the descriptions given by witnesses to the shooting. Santo Padre then advised his supervisor of this information.

Detective Bernard Brennan testified that on December 13, 1990, he was assigned to participate in the investigation of the homicide of James Lyons. On that date, he and Officers Fleming and Kummings learned that defendant was a student at Schurz High School and that he lived at 4111 West Kamerling. The officers then went to Schurz and, upon viewing defendant, determined that he fit the physical description of one of the offenders because he was similar in height, weight, hair and age with a slight mustache. Brennan also was aware of the information provided by Herich. Defendant was arrested, advised of his Miranda rights and taken to the police station.

Brennan testified that the area around Kamerling and Pulaski has a high density population of Hispanics. The court found that it was not imprudent for the officers to believe that they had probable cause to arrest defendant and denied the motion. Thereafter, a motion to suppress statements was heard and denied by the court.

Patricia Job testified at trial that she was a bartender at Mitch's Place at 4164 West Grand Avenue. On November 1, 1990, she was there with her husband and several regular patrons. About 5 p.m., defendant entered and requested a six-pack of beer, but Job did not give it to him because he could not produce a valid proof of age. He then left. A short time later a tall black man entered and also requested liquor but left when he could not produce a valid proof of age.

Several minutes later the black man returned and ordered "everybody down on the floor." Defendant and another black man then came through the back door. The man with defendant went to Job and put a gun to her head. As Job got to the floor, she saw the victim get off his stool and go toward the other black man at the door. She then heard a shot. The man that had put the gun to her head took the money from the cash register, and the three offenders left. On December 13, 1990, Job tentatively identified defendant, and six days later positively identified him. The man who came in the back door with defendant, and the other man by the front door both had guns; defendant did not.

Carlos Rivera was a tavern patron when the incident occurred. He and his brother Miguel were sitting near the back door. He saw defendant enter and try to buy beer and then leave, and also saw his accomplice do the same. Shortly thereafter, the second man to try and buy beer, a tall black man, came in the front door holding a gun and announced a robbery. At the same time another black man and defendant came in the back door. Rivera got on the floor and defendant searched his pockets, taking his wallet. Rivera then heard a gunshot.

Miguel Rivera reiterated his brother's testimony. He said that defendant also searched his pockets and took his wallet. Defendant also asked Miguel if he had any gold, and Miguel looked directly into his face. Miguel heard a shot and the men ran out. On December 13, 1990, Miguel made a positive identification of defendant.

Mitchell Job was also there that day and corroborated the others' testimony. According to Job, defendant was the only one of the three men without a gun. The man who came in the back door with defendant did not have the gun pointed ...

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