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People v. Hernandez

March 08, 2001


Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois No. 98--CF--569 Honorable Clark E. Erickson, Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge

Following a jury trial, the defendant, Jose M. Hernandez, was convicted of first degree murder (720 ILCS 5/9--1(a) (West 1998)), armed robbery (720 ILCS 5/18--2(a) (West 1998)), concealment of a homicidal death (720 ILCS 5/9--3.1(a) (West 1998)), and unlawful use of a weapon (720 ILCS 5/24--1(a)(10) (West 1998)). He was sentenced to 30, 15, 5, and 3 years of imprisonment respectively, to be served concurrently. On appeal, the defendant argues that the trial court erred (1) by limiting the defense's impeachment of a State's witness to the mere fact that the witness had a prior felony conviction rather than by identifying the specific felony, (2) by sentencing the defendant to 30 years' imprisonment, (3) by refusing to bar the defendant's statement given to police in violation of the Vienna Convention on Consular Relations (Vienna Convention), and (4) by admitting a prosecution witness' prior inconsistent statements in evidence. The defendant also argues that the State failed to prove that the defendant committed first degree murder, armed robbery, and unlawful use of a weapon beyond a reasonable doubt. We affirm.


After dark on August 19, 1998, the defendant, Jose Villalobos, and Lorena Perez were near the river in Legion Park in Kankakee.

Perez testified at trial for the State. Her trial testimony differed from two of her earlier statements, one given to the Kankakee police and another given to Villalobos' attorney. *fn1 During her testimony, Perez was questioned by the prosecution about the inconsistencies between these earlier statements and her courtroom testimony. Portions of these two prior statements were read into evidence. Another version of events was presented to the jury through the testimony of Officer Aurelio Garcia who read into evidence a signed, written statement that the defendant had given to Garcia.

In Perez' statement to Villalobos' attorney, she stated that when she was at the park with "Jose H.," she saw that he had a pistol in his pants. The statement asserted that he had obtained the gun on the previous day from his friend Michael. On the witness stand, Perez said that she lied to Villalobos' attorney about the gun to help Villalobos not go to jail. At trial, she testified that she saw some of the defendant's other friends with a gun on the day before the incident in question.

During the trial, Perez testified that her sister was Villalobos' girlfriend. The defendant's written statement asserted that Perez' sister is the mother of Villalobos' children.

According to the defendant's statement, while in the park Villalobos said he wanted to get some money to buy marijuana to smoke. The defendant wondered where they were going to get the money. The defendant's mother no longer would give him money because she knew what he "use[d] it for."

The victim, Linda Baity, rode up to these three individuals in the park on a bicycle. Perez testified that Baity asked for a cigarette and whether any of them wanted to "get high." According to the defendant's statement, Baity asked if they wanted to smoke marijuana. They said, "yeah."

According to the defendant's statement, Perez left on her bicycle to find some money. Perez testified that she rode to a nearby Shell gas station on Villalobos' bicycle.

Baity went into the restroom. When she returned, she pulled out "a dime bag," a bag containing a rock of crack cocaine about the size of a dime. The defendant's statement asserted that Villalobos pulled a small semi-automatic handgun from his pocket and held it to Baity's head. Villalobos demanded that she give him "all you have." Baity pulled another bag of marijuana from her pants and gave it to Villalobos. A "rock" of cocaine fell out and Villalobos "got it, too."

The defendant's statement related that Villalobos then shot Baity in the head. The defendant jumped and was scared. His statement asserted that he did not know that Villalobos was going to shoot Baity. According to the defendant's statement, Perez was returning and was about 15 to 20 feet away when Villalobos shot Baity.

Perez testified that as she rode back to the park she heard a gunshot. According to her statement to police, she was near the park when she heard a gunshot. In this statement, she asserted that the shot sounded as if it came from "the pavilion area."

In the defendant's statement, he asserted that he helped Villalobos drag Baity's body into the river and that some of her clothes came off. When the victim's body was later retrieved from the river, the police discovered a "softball size" rock tied to the victim with one of her shoe laces. Villalobos threw her clothes in the river and the defendant threw her bicycle in the river. His statement said that they "all then ran and split up."

According to Perez' police statement, she was close enough to see the defendant and Villalobos run south from the pavilion. At trial, Perez asserted that she did not see the defendant and Villalobos running.

Perez went to the defendant's house and waited outside. At trial, she testified that when the defendant and Villalobos returned to the house they appeared "normal." In her statement to police, she said that when they returned to the defendant's house they were running, she could tell that they were scared, they were breathing "real hard," and they looked like they were going to cry.

In her police statement, Perez asserted that the defendant's and Villalobos' shoes and pants were wet. They both took their shoes off on the porch of the defendant's house. At trial, Perez said that these statements were lies.

On direct examination by the prosecutor, Perez acknowledged that she had been convicted of a felony. Prior to this testimony, the judge ruled in chambers that Perez could not be questioned about her conviction for the specific felony of witness intimidation. She only could be asked about the mere fact that she had been convicted of a felony.

On August 22, 1998, a fisherman discovered Baity's body in the river. An autopsy revealed an entry bullet wound about the right ear. The bullet pierced the ear and entered the skull. There were no other wounds on the body. The gunshot wound was determined to have been the cause of Baity's death.

Detective Randy L. Hartman testified that he went to the crime scene on the riverbank on August 22, 1998. After observing the victim's body, he went to Legion Park and saw what appeared to be blood on the concrete under a covered pavilion. He stated that it appeared that someone dragged something through the blood, made a curve, and headed toward the river. A bicycle was recovered from the river just south of the pavilion.

On the evening of August 22, 1998, the defendant and Villalobos were arrested. Perez was interviewed at the police station by Hartman. She was crying and withdrawn. At first, she did not want to give a statement to Hartman. He asked if it would help if she had permission from the defendant to tell the police what happened. She said, "yes." Officer Garcia prepared a statement written in both English and Spanish saying, "[T]ell the truth, dega la verdad." The statement was signed by the defendant. A ...

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