The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable James B. Linn, Judge Presiding.
On October 21, 1998, defendant, Rodolfo Nunez, was charged with two counts of first degree murder and two counts of felony murder predicated on aggravated battery for the murder of Ricky Barrios which occurred on May 8, 1993. Following a bench trial, defendant was found guilty of the lesser included offense of aggravated battery. The trial court sentenced defendant to 54 months of imprisonment. The issue in this case is whether defendant's conviction for aggravated battery violates the statute of limitations. The lesser included offense of aggravated battery occurred on May 8, 1993, more than five years before defendant was indicted on October 21, 1998. We conclude that defendant was improperly subjected to criminal liability when the trial court found the defendant guilty of aggravated battery. Under the facts of this case, the finding of guilty of aggravated battery was barred by the statute of limitations.
Tommy Gonzalez testified at trial that in May of 1993 he did not belong to any gang, but he "hung around with" the Latin Kings. In the early morning of May 8, 1993, Gonzalez was "hanging out" with some Latin Kings on Evergreen Avenue, between Spaulding Avenue and Homan Avenue. There were about six people present at the time, including defendant. Defendant was a member of the Latin Kings. The victim was believed to be a member of the Milwaukee Kings. The Latin Kings and the Milwaukee Kings were rival gangs. Ramon Marquez was the chief enforcer of the Latin Kings.
Around 2 a.m. on May 8, 1993, the victim came into the area near 1325 North Homan Avenue, at which point Marquez punched the victim in the face. "Everybody," including defendant, jumped on the victim and started to beat him. Gonzalez further testified that defendant punched the victim in the rib area and was beating him along with the other "guys." Gonzalez testified that defendant and the other offenders were "trying to kill" the victim. The victim fell to the ground and defendant kicked the victim while he was on the ground. After about three minutes, everybody split up. Marquez ran across the street and got a gun. When Marquez came back, the victim was trying to get away and Marquez shot him repeatedly. Gonzalez further testified that he did not participate in the offense. When Marquez threw the first punch, Gonzalez was about 40 feet away from the victim. Gonzalez was able to observe what was going on because the area was illuminated by streetlights and by lights from a nearby building.
The victim died as a result of multiple gunshot wounds. An autopsy revealed seven entry wounds and one exit wound. Four bullets were recovered from the victim's body. In addition, there were scraping abrasions on the victim's forehead and cheeks, and there was swelling on the victim's lip. Dr. Choi, a forensic pathologist, testified that the abrasions and swelling could have been caused by the victim being punched or kicked, or by the victim falling down and scraping his body on the sidewalk.
Several years later, Gonzalez became a member of the Latin Kings. Gonzalez testified that in 1996 he was present when Marquez had a conversation with some members of the Latin Kings about this case. Marquez told his fellow gang members that they should not talk to the police. Marquez warned that if anybody gave any statement or any clues, "something would happen to them." On November 11, 1996, Gonzalez spoke to the police about this case. Initially, Gonzalez did not tell the police what he knew about this case because he was afraid of Marquez. However, Gonzalez's conscience "caught up" with him, and he decided to cooperate with the police. Gonzalez told the police what he knew about the offense, and he identified a photo of defendant as one of the persons who had been involved in the offense.
Jeremiah Perez, a co-defendant charged with first degree murder in this case, also testified at trial. Perez explained that, in exchange for his truthful testimony, he expected to receive a 10-year sentence for second degree murder, a two-year consecutive sentence for a pending drug case, and a one-year concurrent sentence for another pending drug case. Perez testified that in May of 1993 he was a member of the Latin Kings street gang. Perez had known defendant by the name "Mexican." On the morning of May 8, 1993, Perez was smoking cannabis and drinking beer with Marquez.
Marquez said, "let's go get the M.K." Perez went over to Evergreen and Homan and saw the victim against the wall of a building surrounded by five or six men, including the defendant. Perez testified that he and Marquez walked up and "just started beating on the guy" and everybody began to hit and kick the victim. According to Perez, defendant kicked the victim about 15 to 20 times while the victim was on the ground. About five minutes later, Marquez went to get a gun and everybody scattered. Marquez then approached the victim and began to shoot the gun at the victim.
Shortly after this offense, Perez got shot in the head in an unrelated offense. Although the bullet did not penetrate his brain, Perez testified that the shooting affected his memory. In 1995, Perez spoke to the police about this case. Sergeant John McMurray testified that, during the course of the investigation, Perez gave the police approximately 10 names of possible suspects, including the name "Mexican."
After speaking with both Perez and Gonzalez, the police determined that the person Perez and Gonzalez had known as "Mexican" was defendant, Rodolfo Nunez. The police attempted to locate defendant, but their efforts were unsuccessful. In June of 1997, the police obtained a warrant for defendant's arrest. In August of 1998, the police were informed by officials from Kentucky that defendant was being held in custody on the warrant. The police brought defendant back to Chicago.
After the State rested its case, the trial court denied defendant's motion for a directed finding. Defendant testified that, in 1988, he joined the Latin Kings when he was 17 years old. Defendant belonged to the Hirsch and Spaulding section of the Latin Kings. According to defendant, members of the Latin Kings sometimes put tattoos on their bodies to show their affiliation. Defendant testified about a number of tattoos he had on his body, including the name "Mexican."
Defendant testified that he was not an active member of the Latin Kings at the time of the offense, but he still associated with some members of the gang. Defendant became inactive with the Latin Kings after he was placed on misdemeanor probation for a gun case in March of 1993.
Defendant testified that he did not know where he was on May 8, 1993, at the time of the crime, between midnight and 4 a.m. He testified that he was not in the vicinity of Homan and Evergreen and denied any involvement in the beating or murder of the victim. According to defendant, he did not hear about the offense until several days after it had occurred. Defendant testified that he moved to Kentucky in 1994, but he went back to Chicago every couple of months. In 1995, defendant became ...