APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE BERTINA LAMPKIN, JUDGE PRESIDING.
Released for Publication June 25, 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:
Gabriel Bedoya (Bedoya) and John Koch (Koch), both Milwaukee police officers, came to Chicago on May 26, 1994, for a night out on the town. Before the night was over, the Claridge and Ambassador Hotels and the Cardinal's residence were riddled with gunshots. A bouncer at the Dynasty Lounge was dead. Whether Bedoya was to be held responsible for these events was at issue at his trial.
Bedoya was charged with four counts of aggravated discharge of a firearm and one count of first degree murder as a result of the events of May 26 and 27, 1994. A jury found him guilty of murder, but not guilty on the remaining counts. Bedoya was sentenced to 30 years imprisonment. It is from this conviction and sentence that he appeals.
He raises as issues: (1) whether the trial court erred by refusing to allow Bedoya to present evidence of the victim's past acts of violence, when self-defense was raised and the jury was instructed on self-defense, and (2) whether Bedoya's defense for first degree murder was substantially prejudiced by the trial court's refusal to sever the counts for aggravated discharge of a firearm. We reverse and remand for a new trial.
At trial, the State's first witness was Beatriz Rodriguez (Beatriz). She testified that she had been the wife of Jose Julian Rodriguez (Rodriguez), who was shot on May 27, 1994, while he was working as a bouncer at the Dynasty Lounge at 5447 N. Lincoln in Chicago. Beatriz testified that in the early morning hours of May 27, 1994, at about 2 a.m., she called the public phone located in the entranceway of the Dynasty bar. While she was speaking with her husband, he stopped the conversation and asked her to hold. At first, Beatriz heard nothing, then she heard some noises and heard someone say, "What's wrong with him? He's bleeding." When Rodriguez did not return to the phone, Beatriz hung up and called the Dynasty bar's main phone. She spoke with the bartender and learned that her husband had been shot.
Beatriz said that she drove to the bar immediately, but the police would not let her see her husband. The next time she saw Rodriguez, she identified his body at the morgue.
Carlos Varela, a Chicago patrol officer for the 20th District, testified that he had been at the Dynasty Lounge on the evening of May 26, 1994. He got off work at about 11 p.m. and went to have some drinks before going home. He was at the bar for about an hour and, he said, the bar was rather empty.
Varela testified that he saw Bedoya, whom he had known for 15 or 16 years. Though Bedoya grew up in Chicago and had family here, Varela knew that Bedoya was a Milwaukee police officer. Bedoya came over to say hello and introduced Varela to his companion, Koch, whom Varela had never seen before. Bedoya introduced him as "a co-worker."
Bedoya asked Varela if he could suggest a bar where there was music and more action. Varela told them about a bar downtown. Bedoya and Koch left the Dynasty. Varela did not see them again that night.
At 2:30 or 2:45 a.m., however, Varela received a phone call from a Chicago police detective. Because of the call, Varela went back to the Dynasty bar around 3 a.m. and spoke with detectives who were there investigating a shooting. He told the detectives Bedoya's name, the name of a bar belonging to Bedoya's uncle, and other information about Bedoya.
On cross-examination Varela denied that he saw Bedoya carrying a gun the night of May 26, 1994. He said that when Bedoya first became a Milwaukee police officer Bedoya came to Varela's Chicago police station wearing his gun. Varela told Bedoya at that time that he could not carry a gun in Chicago.
Koch testified for the State at Bedoya's trial. He told the jury that he had been dismissed from the Milwaukee police force after he pled guilty to the offenses of aggravated discharge of a firearm, obstruction of justice, and aiding a fugitive, in relation to the events of May 26 and 27, 1994. He also admitted that he had a charge of criminal damage to property pending against him in Wisconsin in relation to an incident involving an ex-wife.
Koch testified that he and Bedoya became friends after being partners on the Milwaukee police force. In May 1994 Bedoya and Bedoya's girlfriend were living with Koch in Koch's condo in Milwaukee. At about 8:30 p.m., on the evening of May 26, 1994, Koch and Bedoya left Milwaukee and arrived in Chicago at about 10 p.m. They drove to Chicago in Koch's red Toyota Camry. Koch said they planned to stay at Bedoya's mother's home in Chicago after enjoying themselves at some bars in Chicago.
Before leaving Milwaukee, Koch said, both he and Bedoya drank 4-5 gin and tonic cocktails. On the way to Chicago, they bought a six-pack of beer and shared it.
Both Koch and Bedoya came to Chicago wearing their service weapons, .40 caliber Glock semiautomatic pistols. Koch wore his concealed in an off-duty holster worn in the small of his back. Bedoya wore his weapon in a regulation off-duty, side holster.
Their first stop on arriving in Chicago was the Casanova Lounge, a bar run by Bedoya's uncle. Koch testified that he and Bedoya were drinking gin and tonic that night. They each had two drinks at the Casanova. After leaving the Casanova bar, they drove to the Dynasty Lounge. There was a bouncer at the door who checked ID's and frisked people for weapons. Koch said that Bedoya showed the bouncer his badge and told him that they were police officers. The bouncer let them into the bar with their weapons.
Inside the bar, Bedoya saw a friend, Carlos Varela, who was a Chicago police officer. Bedoya asked Varela to suggest the name of a bar with good music, since the Dynasty was rather empty. Varela suggested Mother's Lounge. Koch and Bedoya left the Dynasty and Bedoya began to drive to Mother's.
On the way to Mother's Lounge, Koch said, he placed his gun in the glove compartment because he "wasn't comfortable." Bedoya drove the car through an area where prostitutes were walking along the street. Koch directed Bedoya to stop. He picked up a prostitute and paid her $10 for her to perform an act of oral sex on him in the back of the car. Bedoya drove the car while Koch and the prostitute were in the back seat. Because Koch had difficulty maintaining an erection, he told the prostitute to get out of the car. Koch and Bedoya then continued on their way to Mother's Lounge.
At Mother's, Koch said, he and Bedoya had 2-3 drinks. Koch said that he danced and watched other people dancing. At some point, however, they decided to leave Mother's. As they walked to their car, Koch said, Bedoya pulled out his weapon and shot at the ground twice. Koch said that he asked Bedoya why he was shooting and Bedoya just laughed and said, "This is a city, they'll never catch us.
Bedoya drove again. Koch was tired and began to doze off. The next thing he remembered, Koch said, he woke up to see Bedoya reaching across the car in front of him, shooting out of the passenger window of the car. Koch said this happened several times but he did nothing to stop Bedoya.
After shooting at several buildings, Bedoya drove back to the Dynasty Lounge. Koch and Bedoya went inside and had one drink. Koch said that he was sitting at the bar when he realized that Bedoya had gotten up and was leaving. He started to follow. When he got outside he saw that Bedoya and the bouncer were fighting and shouting at each other in Spanish, which Koch did not understand. Koch said he tried to hold on to the bouncer's arms to pull him off Gabe, but got "shrugged off." When he tried to grab the bouncer again, he heard a gunshot. The bouncer, Koch said, said something in Spanish, let go of Bedoya, and turned around and walked back toward the bar. Because of his position, Koch had not seen the gun and did not know who was holding the gun when it fired.
Koch testified, however, that after the bouncer walked away he noticed Bedoya holstering his weapon and walking at a fast pace up the street. When Koch caught up with him, Bedoya said, "I shot the m//--- f///--. We've got to get out of here." Koch then went to get the car, drove to where Bedoya was standing, and picked him up. Koch said that he heard sirens and saw emergency lights flashing as he drove away from the area near the Dynasty Lounge.
After leaving the Dynasty Lounge, Bedoya suggested that they switch places. Bedoya drove. After that, said Koch, he had absolutely no recollection of anything until he awoke the next morning in his car in the parking lot of his condo in Milwaukee. He woke up when a Milwaukee police officer opened the car door he had been leaning on and he started to fall out of the car. He noticed that there were several officers and detectives around the car. Koch was arrested. The detectives retrieved Koch's service weapon from the glove compartment.
Koch admitted that when he awoke he was covered with vomit from throwing up on himself and his pants were urine-soaked.
On cross-examination Koch denied that he had been the one shooting out of the passenger window at the buildings. He could not explain, however, how a bullet hole got in the arm rest of the passenger side of the car.
Koch also said that he was 5'9" tall and he recalled the bouncer being taller than he was.
The bartender at the Dynasty, Jose Marin Lopez, testified with the help of a Spanish interpreter. He said that he had been a bartender at the Dynasty for seven years and was there on May 26, 1994. He saw Carlos Varela speaking with two men ...