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07/24/97 PEOPLE STATE ILLINOIS v. JOSE RUBEN

July 24, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSE RUBEN RODRIGUEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 95--CF--1680. Honorable Christopher C. Starck, Judge, Presiding.

Released for Publication August 29, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Rathje and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court.

Defendant, Jose Ruben Rodriguez, was indicted by a grand jury with one count of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1994)) and one count of unlawful use of weapons (720 ILCS 5/24--1(a)(4) (West 1994)). Following a jury trial, defendant was found guilty only on the latter count. Defendant was sentenced to 24 months' probation. We affirm.

At trial, Rosa Rodriguez (Rosa R.), defendant's wife, testified that she received a telephone call at 2:30 a.m. on June 24, 1995, concerning her 16-year-old daughter, Rosa Gallegos (Rosa G.). Rosa R. was informed that Rosa G. had not returned to Rosa R.'s mother's house located at 315 South Victory Street in Waukegan, Illinois. Rosa R. and defendant were worried, so they drove over to her mother's residence. At 4 a.m., a vehicle approached the residence. While Rosa R. and defendant were outside the residence, she observed her daughter exit the vehicle. Defendant was upset. He approached the vehicle and asked the driver to stop the vehicle. The vehicle immediately took off. Defendant got into the family vehicle, a brown, four-door sedan. Rosa R. took her daughter inside the residence. Rosa R. did not see defendant drive off in the family vehicle. She observed that defendant entered the residence two to three minutes later. According to Rosa R., defendant owns a handgun, but she did not see it on defendant's person that evening.

Rosa Gallegos, defendant's stepdaughter, testified that she was riding in a vehicle at 4 a.m. on June 24, 1995, with two friends, Michael Rodriguez and Rogelio Montoya. The vehicle pulled up in front of a house next to her grandmother's residence and she exited the vehicle. Defendant walked toward the vehicle. She and her mother entered the residence. She observed that defendant entered the residence one to two minutes later. She did not see a gun on defendant's person that evening.

Rosa G. further testified to giving a written statement to the police on July 11, 1995. According to that statement, defendant got into their family vehicle and drove off after the other vehicle. At trial, however, Rosa G. testified that she never saw defendant drive after the other vehicle because she was already in her grandmother's residence with her mother.

Denise Beausoleil testified that she resided at 343 Westmoreland Avenue in Waukegan. She was outside walking her dog at 4 a.m. on June 24, 1995. She observed two vehicles speeding north on Westmoreland Avenue. The first vehicle was smaller and darker than the second vehicle, a sedan-type vehicle. As they approached Grand Avenue, she heard tires screech and what sounded like four gunshots. She then went inside and telephoned the police.

William Brazil testified that he was employed as an officer with the Waukegan police department. On June 24, 1995, at approximately 4:05 a.m., he was dispatched to the intersection of Grand Avenue and Westmoreland Avenue. He did not find anything which would indicate that gunshots had been fired at that location.

Jose Gilberto Rodriguez (Jose) testified that at approximately 1 p.m. on July 3, 1995, he was visited at his home by defendant. Defendant complained that Jose's son, Michael Rodriguez, had been out with defendant's stepdaughter at 4 a.m. About five minutes into their conversation, Michael entered the residence. After further conversation, defendant told Jose, "I am a sharpshooter."

David Yarc testified that he was employed as a detective with the Waukegan police department. Pursuant to an investigation about gunshots being fired at the intersection of Grand Avenue and Westmoreland Avenue, he interviewed Rosa G. on July 11, 1995. He asked her to prepare a written statement about the events of June 24, 1995. According to the statement, when Yarc asked Rosa G., "What car did [defendant] leave in?" she responded, "Our family car, a four door brown car."

Michael Rodriguez testified under a grant of immunity from the State. He testified that at 4 a.m. on June 24, 1995, he was driving his father's red Mustang with Rogelio Montoya and Rogelio's girlfriend, Rosa G. He dropped Rosa G. off at a residence on Victory Street. He drove away as a man was saying something to him. About one mile from that residence, he noticed a four-door vehicle following him. The two vehicles drove along Westmoreland Avenue toward Grand Avenue, where Michael heard loud popping noises. The vehicle behind his then turned away.

Michael also testified that on July 3, 1995, he went to his father's house and defendant was there. Michael stated to his father, "That's the man that shot me." Michael reported the events of June 24, 1995, to the police on July 4, 1995.

Michael further testified to giving a written statement to the police on July 6, 1995. According to that statement, defendant was driving the vehicle that followed his on June 24, 1995. According to the statement, when Michael stopped his vehicle at the stop sign at the intersection of Westmoreland Avenue and Grand Avenue, defendant came up next to him and pointed a gun at him. As Michael drove through the intersection, he heard at least six gunshots. In the statement, Michael claimed that defendant approached him the following day and threatened to shoot him. At trial, however, Michael testified that he never saw the driver of the other vehicle. He also testified that defendant never approached him the next day and threatened to shoot him.

Following the trial, the jury found defendant guilty of unlawful use of weapons. Defendant was sentenced to 24 months' probation. Defendant filed a timely appeal.

On appeal, defendant raises four issues for our review. He contends that (1) the trial court erred in admitting the hearsay testimony of Jose and Michael; (2) the trial court erred in admitting the prior written statements of Rosa G. and Michael as substantive evidence; (3) the trial court erred in granting the State's motion in limine to prohibit the introduction of evidence of the alleged gang involvement of the State's witnesses; and (4) the State failed to establish his guilt beyond a reasonable doubt.

I.

Defendant's first contention on appeal is that the trial court erred in admitting the hearsay testimony of Jose and Michael.

The State argues that defendant waived this issue for failing to object to the testimony of Jose and Michael in question at trial (see People v. Stewart, 105 Ill. 2d 22, 56, 85 Ill. Dec. 241, 473 N.E.2d 840 (1984)) and for failing to raise an objection to the testimony in his post trial motion (see People v. Enoch, 122 Ill. 2d 176, 186, 119 Ill. Dec. 265, 522 N.E.2d 1124 (1988)). Upon review of the record, we find that defendant failed to object to the testimony of Jose and Michael at trial. Defendant also failed to object to the testimony of Jose in his post trial motion. Notwithstanding waiver, we elect to address the issue. See People v. Roberts, 263 Ill. App. 3d 348, 350, 200 Ill. Dec. 895, 636 N.E.2d 86 (1994) (the waiver rule is a limitation on the parties and not on the court).

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless it falls within an exception to the rule. Laughlin v. France, 241 Ill. App. 3d ...


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