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03/20/97 PEOPLE STATE ILLINOIS v. VICTOR SALGADO

March 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
VICTOR SALGADO, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 93 CR 22832. HONORABLE SHELVIN SINGER, JUDGE PRESIDING.

Rehearing Denied April 23, 1997. Released for Publication May 12, 1997.

Presiding Justice Wolfson delivered the opinion of the court. Cerda and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Young men do things with their hands that signify membership in a gang. Or that show their contempt for a rival gang. Sometimes, as in this case, the signals result in violence and death on the public way.

Defendant Victor Salgado (Salgado) was indicted on charges of first degree murder, attempt first degree murder, and aggravated discharge of a firearm, in relation to a shooting incident that occurred on September 24, 1993. In a jury trial, held simultaneously with the severed bench trial of Victor Rodriguez, Salgado was found guilty of murder and attempt murder and sentenced to consecutive terms of 50 years and 20 years, respectively.

He now appeals his convictions and sentence, raising as issues: (1) whether the trial court erred by refusing to suppress his post-arrest, court-reported statement, (2) whether the trial court should have banned the prosecution from referring to defendant by his nickname "Bam Bam," (3) whether the trial court should have instructed the jury on second degree murder, (4) whether the first degree murder instruction given was erroneous, (5) whether it was error for the judge to have given the jury, at its request, a transcript of a witness's testimony to review during deliberations, and (6) whether the sentence imposed was excessive. We affirm.

FACTS

At 1:55 p.m. on September 24, 1993, in broad daylight, two young men were sitting in a car at a stoplight at the intersection of Belmont and Cicero when they were savagely attacked by four members of the Mighty Latin Pachukos. Before the incident was over, two shots were fired and 17-year-old James Manzella was dead. The events leading up to the shooting are not in serious dispute.

On that afternoon in September, Salgado (known as Bam Bam), and some friends left Schurz High School to get something to eat. The group, which included Victor Rodriguez (known as Sapito), Omar Chaidez (known as Monkey), Sylvia Arroyo, and sisters, Sandy and Vianey Olea, rode together in Rodriguez's red Chevrolet. Their first stop was at Foreman High School to pick up another friend, Francisco Muniz (known as Flocko).

After Muniz got in the car, Rodriguez drove south on Leclair Street. As he proceeded down the street, the occupants of his car noticed a beige Chevette traveling behind them. Seventeen-year-old James Manzella was driving this Chevette and 18-year-old Jason Balthazar was his passenger. Though Salgado and his friends did not know Manzella or Balthazar, they decided that these two persons were "Folks," that is, members of a rival gang. They arrived at this conclusion based on certain hand signals which some of them testified they saw the passenger of the beige car (Balthazar) make. Salgado, Rodriguez, Chaidez, and Muniz were members of the Mighty Latin Pachukos, a gang that is affiliated with the group of gangs known as "the People."

Balthazar denied that he "threw gang signs" at the red car. He testified, instead, that persons in the red car were "throwing up" gang signs and "throwing down" other gang signs. Balthazar said that one of the passengers in the back of the red car was throwing down "the fork" and the "C" signs, which told him that they were rivals of the Disciples and the Cobras (gangs affiliated with the Folks).

Balthazar suggested that Manzella avoid a confrontation with the people in the red car. For this reason, when the red car drove through the intersection of Leclair and Barry Streets, Manzella turned left and traveled east on Barry. Balthazar noticed, however, that the red car backed up and began following them.

Manzella drove two blocks, then turned left again onto Lamont. He continued on Lamont to Belmont and then turned right on Belmont. Near the intersection of Belmont and Cicero Manzella was forced to stop because a fire engine was attempting to pass by. While Manzella and Balthazar sat in the stopped traffic, the red car pulled up behind them, stopped, and four young men emerged.

One of the men, later identified as Victor Rodriquez, came to the driver's side of the beige car and began beating on the side window. Two men came to the passenger side and shouted, "Disciple Killer" and "Cobra Killer" at Balthazar and began kicking and hitting the windows of the car. The man on the driver's side (Rodriguez) succeeded in breaking the side window, then he jumped on the hood and started kicking in the windshield. When this happened, Balthazar and Manzella both crouched down in the front seat. It was at this time that Balthazar heard two gunshots.

The shouts of "Disciple Killer" and "Cobra Killer" continued, Balthazar said, until he heard the screech of tires. Though he did not see it, the red car drove away.

When Balthazar next looked up, he realized that the car he was in was moving. Manzella's eyes were closed and he was "in a stiff position." Balthazar thought Manzella had fainted. The car traveled about a block before Balthazar was able to steer into a parked car to stop. Balthazar checked his friend and found that he wasn't breathing. He jumped out of the car and yelled for someone to call the police. The police and an ambulance arrived soon after. Manzella was taken to the hospital where he was pronounced dead.

Assistant Medical Examiner Dr. Tae An testified that he performed a post-mortem on Manzella, which revealed that Manzella had two bullet entry wounds and one exit wound. One bullet entered Manzella's body just below the left shoulder blade. The bullet travelled through the chest cavity, lacerated the lung and the heart, and then lodged in the right chest area. The other bullet entered Manzella's mid-back, on the right side. It passed through and exited the right chest area. In the doctor's opinion, Manzella died from multiple gunshots lacerating multiple internal organs.

Sandy Olea, Vianey Olea, and Sylvia Arroyo each testified at trial. All of them had been riding in Rodriguez's red car and witnessed the encounter with the beige Chevette on September 24, 1993. They all testified similarly and their testimony was consistent with Balthazar's testimony. The only exception was that they claimed that Balthazar initially flashed gang signs at them, which is what caused Rodriguez to pursue the beige car.

Sandy Olea testified that she was riding in the front seat of Rodriguez's red car, between Rodriguez, who was driving, and Salgado. As they drove down Leclair street, they all took notice of a beige car traveling behind them because they saw the passenger in that car throw out gang signs. The boys in Rodriguez's car became angry and upset. They said, "They're Folks." Bam Bam (Salgado) and Flocko (Muniz) flashed gang signs back at the beige car.

At an intersection, the beige car turned left. The boys in Rodriguez's car wanted to go after the beige car. They shouted, "Let's go fuck them up." Rodriguez backed up his car and began to follow the beige car. Sandy said that she tried to stop the car by reaching over and moving the stick shift on Rodriguez' car to neutral. She told Rodriguez, "Forget about it." But Rodriguez did not listen.

When Rodriguez caught up to the beige car, which was stopped near the intersection of Belmont and Cicero, Rodriguez, Salgado, Chaidez, and Muniz got out. Muniz was carrying a baseball bat. When Muniz got to the beige car he began hitting the rear window with the bat. Chaidez started kicking the rear side window on the passenger side, Salgado hit the passenger inside the beige car through the window. Rodriguez got on the hood of the car and started kicking in the windshield. As the four boys were attacking the beige car, Sandy, Vianey, and Sylvia all "ducked down" in the red car. At this point, they each testified, two gunshots were fired. Immediately after, three of the boys ran back to the red car and got in. Chaidez (Monkey) ran off.

Sandy noticed that when Salgado returned to the red car he was carrying a gun. She said that Salgado removed "the grill" and hid the gun in the "ventilation area" of the car. As the car drove away, Rodriguez asked Salgado, "Why did you shoot?" Sandy said that Salgado responded, "Because he was Folks."

After the shooting, they drove around the block. They found Monkey, who got back in the car. Then they all went to lunch at a Mexican restaurant.

Vianey recalled the same sequence of events except that she did not see a gun in Bam Bam's (Salgado's) hand when he returned to Rodriguez's car. She testified, however, that as they drove away from the beige car the boys were yelling at Bam Bam (Salgado), "Why did you do that?" and "You didn't have to do that." Bam Bam replied, "He was getting crazy. He was going to get out of the car."

Sylvia's testimony matched the testimony of the Olea sisters except that she recalled that when Sapito (Rodriguez) asked Bam Bam (Salgado), "Why did you shoot?" Bam Bam replied, "I think I shot him in the back or the shoulder."

Another witness to the shooting was, Clarabel Navas. She testified that on September 24, 1993, at about 2 p.m. she was leaving Community Savings Bank, which is located at the corner of Belmont and Cicero. She noticed a red car pull up behind a brown car that was stopped in traffic near the intersection. Four young men got out of the red car and began breaking windows on the brown car.

Navas said that the driver of the brown car did not move. He looked straight ahead, with his hands on the steering wheel, as if he were frozen. Then one of the four young men who had been attacking the car walked to the back of the brown vehicle, aimed at the head of the driver and fired two shots.

After the shooting the young men got back into the red car and drove off. The beige car started to trove through the intersection with the driver slumped over the wheel. The police came to the scene shortly thereafter and Navas reported what she saw to one of the police officers.

Anthony Welninski, a Chicago police officer who was working as a security guard at the Community Savings Bank on September 24, 1993, testified that, at about 2 p.m., he heard a fire truck's siren making a commotion outside and then heard one gunshot. He went to the window and looked outside, but saw nothing. Then two women came running into the bank and reported that there had been a shooting. One of the women gave Welninski the license plate number of the red car in which the shooter drove off.

Welninski went outside and saw a tall, slender Hispanic youth running from the scene. As the boy ran, he pulled his hood over his head. Welninski saw broken glass on the street and a group of people gathered around a brown car about one block away. Police cars had begun to arrive on the scene. Welninski turned over the license plate number to one of the detectives.

Detective Hugh Conwell testified that he was assigned to investigate a shooting on September 24, 1993. He and his partner drove to the intersection of Belmont and Keating, where they saw a copper-colored Chevy Chevette with its windows broken and smashed.

Detective Conwell walked down to the next intersection and met with Officer Welninski, who gave him the license plate number of the car driven by the offenders. The license number was immediately traced to Victor Rodriguez. Detective Conwell and his partner drove to the home address listed for Rodriguez. Rodriguez was not home, ...


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