The opinion of the court was delivered by: Presiding Justice Gordon
Appeal from the Circuit Court of Cook County.
Honorable James M. Schreier, Judge Presiding.
Following a bench trial, the defendant, Sotirios Georgakapoulos, was found guilty of the first degree murder of Jacobo Lozada. He was sentenced to 30 years imprisonment. On appeal he contends that the trial court erred by failing to exclude the decedent's hearsay statements and by barring defense counsel from impeaching a witness with past criminal conduct. For the reasons discussed below, we affirm defendant's conviction.
At approximately 11:00 p.m. on July 1, 1994, Jacobo Lozada (Jacob), a member of the Spanish Cobras (the Cobras) street gang, was shot while riding a bicycle on Lawndale Avenue in the vicinity of Jensen Park, in Chicago. Jensen Park is located on Lawndale Avenue and is bordered by Leland Avenue on the north and Wilson Avenue on the south. Jacob died on July 29 from the injuries he sustained as a result of the July 1 gunshot wound. The defendant, Sotirios ("Sammy") Georgakapoulos, a member of the rival Simon City Royals (the Royals) street gang *fn1 , was charged with the shooting.
The evidence at trial showed that shortly before the shooting, the Cobras had "taken" Jensen Park from the Royals. On June 29, 1994, the car of a girlfriend of a Royals gang member named Jamie had been broken into and the tires slashed. On the night of July 1, approximately 17 Cobras were at Jensen Park; and they were expecting trouble. Two Cobras served as "look-outs": Oscar Chavez, who stood at the intersection of Leland and Lawndale, across the street from the park, and Timothy Downs, who stood in the middle of Lawndale, across from the park. Ray Lozada, Jacob's brother, stood across from the park at Wilson and Lawndale. The area surrounding the park was illuminated by park lights and street lights. At approximately 10:45 p.m., a dark blue, four-door Oldsmobile automobile, occupied by Royals, turned onto Lawndale from Leland and proceeded south toward Wilson. At trial, Ray Lozada, Chavez, and Joel Mendoza (Lozada's cousin who was playing basketball at the park) identified "Louie" as the driver of the automobile, the defendant as the front-seat passenger, and "Jamie" as the back-seat passenger. Downs testified that he was able to see Louie and the defendant in the car.
Ray Lozada testified that as the Oldsmobile drove past the park, it slowed down. The Oldsmobile's windows were open. Ray, who was about 10 feet away, heard its three occupants yell "Royal Love" and "Cobra Killer." The car then continued down Lawndale and turned onto Wilson. Lozada explained the term "Royal Love" demonstrated loyalty to the Royals and the term "Cobra Killer" was an insult to the Cobras. Ray testified that at about 11:00 p.m., Jacob borrowed a bicycle from Mendoza and began riding it north in the center of Lawndale Avenue. While Jacob was riding the bicycle, Ray heard someone yell, "watch out" and then heard a gunshot. Ray testified that, at the time of the shooting, Jacob was directly across from a gangway between two buildings across the street from the park. According to Ray, the gangway extended to the street. There was a three-foot high fence between the gangway and the street. Ray testified that the area was well-lit and he had no "trouble seeing out there."
Mendoza, a non-gang member, testified that he was playing basketball at the park when at approximately 11:00 p.m. he heard a warning to "watch out." He looked and saw three people standing in the gangway across the street from the park on the east side of Lawndale. Mendoza was about 50 feet from that gangway. He could see the heights of the individuals but not their faces. They were all wearing "hoodies," hoods attached to sweatshirts. He stated the tallest of the three individuals was standing in the back while the next highest in height was in the front looking north toward Leland. He stated that the shortest of the three individuals, who was in the middle, fired the shot. Mendoza testified that he knew Louie, Jamie and the defendant and that Louie was six inches taller than the defendant and Jamie was taller than Louie. He stated that he did not see the shooter's face but thought the shooter was the defendant because of the shooter's height and because the defendant had driven by earlier.
Armando Cruz, a non-gang member who was playing basketball at the park on the night of July 1, 1994, testified that he saw Jacob ride a bicycle down Lawndale. Cruz, who was standing approximately 75 feet away from the gangway across from the park, saw a person wearing a "hoodie" come 10 feet out of the gangway and fire a shot. According to Cruz, Jacob was in the line of fire. Cruz testified that he could not see the shooter's face but saw that the shooter was about 5 feet 7 inches tall. After the shooting, Cruz saw the shooter and a second person run down the gangway to the alley.
Timothy Downs testified that he stood 35 to 40 feet from the gangway when he heard the gunshot. He testified that he saw the defendant pointing a chrome gun at Jacob. Downs thought the defendant held the gun in his left hand. He stated that the defendant stood approximately 10 feet in front of the gangway, 25 to 30 feet in front of him, when the shot was fired. Downs testified that immediately after the shooting the defendant looked at him and then turned and ran back down the gangway away from Lawndale. Downs stated that there was nothing obstructing his view of the defendant and he had no difficulty seeing him. Downs testified that on October 24, 1994 he viewed a lineup and identified the defendant as the shooter.
On cross-examination, Downs denied telling his cousin, Susan Shelton, defendant's girlfriend, that he did not see anything of relevance on July 1, 1994. He stated that he did not go to the police station after the shooting to give the police any information about the July 1, 1994 shooting. He further stated that he first discussed the July 1, 1994 shooting with the police in October 1994 after he had been "picked up" by the police concerning another matter. Downs also stated that the person shooting the gun in the gangway wore a black sweatshirt but "did not have the hoodie up."
Ray Lozada, Mendoza, Cruz, Downs and Chavez all testified that after hearing the gunshot, they saw Jacob dismount the bicycle, walk to the parkway on Lawndale, and lie on the grass in pain. They ran over to him and saw blood covering the left side of his chest. Ray testified that he asked his brother what happened and that his brother responded that he had gotten shot. Ray stated that he then asked Jacob who shot him and Jacob responded, "'Sammy.'" Ray then asked, "Who? What Sammy?" Jacob answered, "'Royals Sammy.'" Chavez also asked Jacob, "What's wrong, what happened" and was told by Jacob, "'They shot me, Sammy shot me. Sammy shot me." Downs, who testified that he reached Jacob first, stated that Jacob told him he had been shot in the shoulder and said "'Sammy did it, Sammy did it.'" Cruz testified that he ran toward Jacob and upon reaching him heard Jacob screaming in pain and saying the name "'Sammy.'" Mendoza testified that he heard Jacob say "'Sammy shot me from the Royals.'" In addition, Chicago Police Officer Charles White, who arrived on the scene within ten to twenty minutes of the shooting, heard Jacob name "Sammy" as the shooter.
At the Conclusion of the State's case, the parties stipulated that Jacobo Lozada died from a single gunshot wound to his chest which lacerated an artery and vein causing respiratory, renal, and cardiovascular failure. The parties also stipulated that if called to testify, Chicago Police Detective Guevara would state that on October 21, 1994 he conducted a lineup and that Downs identified the defendant at that lineup as the person who shot Jacob.
In defense, Susan Shelton testified that she was the ex-girlfriend of the defendant and that Timothy Downs was her first cousin. She testified that she, Downs, another cousin named Greg Faye, and Downs' girlfriend named Angie Childres had a conversation about the defendant and the shooting at Jensen Park. She stated that the conversation occurred in the spring or August or "something around there." When asked by the court whether the conversation occurred in 1995 or 1996, Shelton first stated she was not sure and then stated that the conversation occurred in the spring of 1995. Shelton testified that during the conversation, Faye asked Downs "why he wanted to put someone in jail for something they didn't do." Shelton testified that Downs replied, "'it didn't matter, he is just another Royal.'" Downs told them that if he didn't testify he would be "locked up for perjury." Shelton also stated that Downs had a reputation within her family in Chicago as being a liar. She further testified that Downs told her that he did not see the defendant in the car in the alley before the shooting.
On cross-examination, Shelton identified documents prepared by defendant's attorney which described a May 30, 1996 conversation between herself and the attorney. The document indicated that she told the attorney that Downs said he saw the defendant in the alley immediately before the shooting. When asked about her gang affiliation, Shelton denied being a gang member; denied telling a police officer on September 16, 1996 that she was a Gangster Disciple; and denied admitting to having a prior membership in the "Deuces."
Jeannie Georgakapoulos, the defendant's mother, testified that the defendant was right-handed.
In rebuttal, the State called Elizabeth Matheson, a Chicago Police Officer. Matheson testified that on September 19, 1996 she responded to a call at the Chicago Day School regarding a girl with a knife. She stated that the victim of the assault identified the offender as Susan Shelton. Shelton, who was present, told Matheson that she was a "Deuce" from Hamlin Park.Chicago Police Officer Andruzzi testified that he responded to a call on January 30, 1994 involving a battery at 2033 West School Street. On that occasion, Andruzzi took Shelton back to the police station, and during a conversation that occurred at 10:30 p.m., Shelton told him that she was a member of the Insane Deuce street gang.
Chicago Police Officer Joe Rodriguez, a gang investigator, testified that the Insane Deuces are allies of the Royals.
After viewing video tapes presented by both sides showing the scene of the shooting and after hearing argument of counsel, the trial court found the defendant guilty of first degree murder. The court based that finding primarily on the fact that Jacob named the defendant as the shooter. In addition, the court considered the fact that several witnesses saw the defendant and heard him yelling threats in the area of the ...