Appeal from the Circuit Court of Cook County. No. 98 CR 29619 The Honorable Richard A. Kavitt, Defendant- Judge Presiding.
The opinion of the court was delivered by: Justice Cohen
Defendant Senorino Rodriguez was charged in an eight-count indictment in the circuit court of Cook County with: (1) four counts of first degree murder alleging that defendant shot Julio Dominguez while committing the forcible felony of aggravated discharge of a firearm against both Gilberto Fernandez and Jorge Valentin Ayala (Valentin) (720 ILCS 5/9-1(a)(3) (West 1992)), defendant shot Julio with the intention of killing him (720 ILCS 5/9-1(a)(1) (West 1992)) and defendant shot Julio knowing such act created a strong probability of death or great bodily harm (720 ILCS 5/9-1(a)(2) (West 1992)); (2) two counts of aggravated discharge of a firearm alleging that defendant discharged a firearm in the direction of both Julio and Gilberto (720 ILCS 5/24-1.2(a)(2) (West 1996)); and (3) two counts of reckless discharge of a firearm alleging that defendant discharged a firearm in a reckless manner endangering the bodily safety of Julio and Gilberto (720 ILCS 5/24-1.5(a) (West 1996)). Following a bench trial, the trial court entered a general judgment finding defendant guilty of "all counts." Defendant was sentenced to consecutive prison terms of 26 years for first degree murder, 4 years for aggravated discharge of 1a firearm and 3 years for reckless discharge of a firearm.
On appeal, defendant contends that the State failed to prove him guilty of first degree murder beyond a reasonable doubt. Alternatively, defendant argues that his first degree murder conviction should be reduced to second degree murder (720 ILCS 5/5-9-2(a) (West 1998)) because the evidence demonstrates that defendant was either seriously provoked or had an unreasonable belief in the necessity of using deadly force in self-defense at the time of the shooting. Finally, defendant asserts that if we reduce his conviction to second degree murder, we must reverse his convictions for aggravated discharge of a firearm and reckless discharge of a firearm for lack of the requisite mental state. For the reasons set forth below, we affirm defendant's convictions for intentional murder, aggravated discharge of a firearm and reckless discharge of a firearm, vacate defendant's convictions and sentences for knowing and felony murder and remand the cause to the circuit court of Cook County solely for resentencing upon defendant's conviction for intentional murder.
Evidence introduced at trial revealed that on October 12, 1996, Gilberto Fernandez, Julio Dominguez and Valentin Amaya lived in an apartment located at 1863 Green Lane in Palatine, Illinois. Gilberto and Julio were brothers and Valentin was their uncle. Defendant lived at 1956 Green Lane in the same apartment complex as Gilberto, Julio and Valentin. Defendant had known Gilberto and Valentin for approximately two years. Julio had only been in the United States for approximately six weeks.
Gilberto testified that late in the evening on October 12, 1996, he and Julio were returning home from Taco Bell when they encountered defendant and Valentin in the parking lot of their apartment complex. According to Gilberto, defendant told Gilberto to leave and threatened to "fuck [him] up." Gilberto testified that there was animosity between him and defendant based on an incident approximately four months prior, during which Gilberto and defendant had fought at a party and defendant had cut Gilberto's hand with a knife. Gilberto ignored defendant's threats and went inside to his apartment.
Gilberto and Julio continued to observe defendant and Valentin from the apartment. Gilberto testified that it appeared that Valentin and defendant were arguing. Gilberto and Julio returned to the parking lot to tell Valentin to "stop and go back inside." Gilberto and defendant then began arguing. While Gilberto and defendant were arguing, Julio went to move Gilberto's truck to a different parking space. Gilberto testified that while Julio was walking away from defendant toward his truck, defendant drew a gun and shot Julio. Gilberto further testified that neither he, Julio nor Valentin was armed, nor had they threatened or struck defendant prior to the shooting.
The prosecutor showed Gilberto two photographs *fn1 depicting the parking lot where the shooting transpired. The photographs revealed a truck in the parking lot of the apartment complex; however, Gilberto testified that the truck in the photograph was not the truck that Julio intended to move at the time of the shooting. Gilberto indicated the locations in the photograph where defendant, Julio, Valentin and he were standing at the time of the shooting . The prosecutor then described for the record the location on the photograph where Gilberto was pointing. According to Gilberto, defendant was standing near the right front tire of the truck, Julio was at "a point slightly somewhere behind the truck," Gilberto was standing in an area "to the left of the margin just slightly off the photograph" and Valentin was "a little behind [Gilberto]." Gilberto further testified that he identified defendant from a photo array at the police station.
On cross-examination, defense counsel had Gilberto mark the photographs with the initials of defendant (SR) and Julio (JD2) to coincide with his testimony on direct examination as to their locations at the time of the shooting. Gilberto testified that Julio fell forward when he was shot. At defense counsel's request, Gilberto marked this location as "JD" on the photograph. Gilberto was unable to approximate the distance between defendant and Julio at the time of the shooting, but testified that defendant was positioned at the front end of the truck and Julio was positioned at the end of the truck. Gilberto further testified that a friend of defendant and Valentin's nephew were also present in the parking lot at the time of the shooting.
Valentin testified that in the late evening hours of October 12, 1996, he argued with defendant in the parking lot of the apartment complex about purchasing beer. According to Valentin, his nephew and a friend of defendant were also present. During the argument, Valentin observed Gilberto and Julio drive into the parking lot and walk toward their apartment. Valentin further testified that defendant threatened Gilberto, stating "get out of [here] because otherwise [I will] * * * fuck [you] up." Gilberto ignored defendant and proceeded inside to his apartment. A few minutes later, Gilberto and Julio returned to the parking lot and told Valentin to go inside. An argument began between Gilberto and defendant. While Gilberto and defendant were arguing, Julio went to move Gilberto's truck to another parking space. According to Valentin, as Julio walked away, defendant shot him "from the front." Valentin testified that Julio fell to the ground and defendant fired two more shots. Valentin and Gilberto chased defendant briefly, but defendant was able to escape. Valentin then returned to Julio. Valentin observed blood coming from Julio's forehead. Valentin testified that he held Julio in his arms until the paramedics arrived. Valentin denied that either he, Gilberto or Julio was armed at the time of the shooting.
As with Gilberto, the prosecutor presented Valentin with two photographs depicting the scene of the shooting. Valentin pointed to locations in the photograph where defendant, Julio, Valentin and he were standing at the time of the shooting. The prosecutor then described for the record the location on the photograph where Valentin was pointing. According to Valentin, he was to the left side of the truck "outside the view of the photograph" and defendant was standing "near the right front tire" of the truck. At the prosecutor's direction, Valentin marked defendant's location in the photograph with the initials of defendant (SR). Valentin further testified that he was approximately 45 feet from Julio at the time of the shooting and that Gilberto was approximately 15 to 17 feet from Julio. Valentin testified that he had also identified defendant from a photo array at the police station. On cross-examination, Valentin admitted that Julio was "no closer than 10 to 12 feet" from defendant at the time of the shooting.
Detective Louis Sala of the Cook County sheriff's police department testified that at approximately 1:30 a.m. on October 12, 1996, he was notified of an incident occurring at the 1800 block of Green Lane in Palatine, Illinois. Upon arriving, Detective Sala observed a pool of blood and miscellaneous clothing adjacent to a pickup truck. Uniformed officers at the scene advised Detective Sala that there were two eyewitnesses to the shooting and a known offender. Detective Sala testified that he searched defendant's apartment and requested that defendant's "common law wife," Marissa Hertatto, be transported to the Rolling Meadows police station for questioning. Detective Sala further testified that he went to Northwest Community Hospital to check on Julio's status. At that time, Julio was in critical condition; however, Detective Sala was later notified that Julio had died as a consequence of his injuries.
On October 13, 1996, an arrest warrant was issued for defendant. The following week, the police conducted periodic checks of defendant's residence and monitored defendant's place of employment. The police were unsuccessful in apprehending defendant until August 18, 1998, when a law enforcement official in Austin, Texas, notified the Cook County sheriff's police department that defendant was in their custody on a domestic battery charge. The following day, Detective Sala and Assistant State's Attorney Chris Kaczynski traveled to Texas to confirm defendant's identification and transport him to Illinois.
Tom Cebulski, an evidence technician for the Cook County sheriff's police department, testified that in the early morning hours of October 13, 1996, he was dispatched to a crime scene at the 1800 block of Green Lane in Palatine, Illinois. By the time Cebulski arrived, Julio had already been transported to Northwest Community Hospital. Cebulski testified that he recovered a baseball cap, a cassette tape, a bloodstained shirt and a pair of eyeglasses near a pool of blood adjacent to a "Ford F-250" truck. Cebulski also recovered three .25-caliber shell casings. Another bullet of the same caliber was recovered from Julio's body following an autopsy.
Investigator Sapp of the Cook County sheriff's police department testified that shortly after 1 a.m. on October 13, 1996, he and his partner, Investigator Kevin Ruel, received a call of shots fired at 1853 Green Lane. Investigator Sapp immediately drove to that location, arriving approximately two minutes later. As Investigator Sapp approached the crime scene, he observed Valentin holding Julio in his arms. Investigator Sapp parked his police vehicle, exited and walked toward Valentin and Julio. Next to Valentin and Julio, Investigator Sapp observed a large pool of blood and called for an ambulance. Investigator Sapp conducted a search around the area where Julio was lying but did not observe any guns, knives, bottles or other possible weapons.
Dr. James Filkins, a deputy medical examiner at the Cook County medical examiner's office, performed an autopsy on Julio. An external examination revealed that Julio sustained a gunshot wound to the left temple, about 3 ½ inches from the top of his head. The bullet penetrated Julio's skull, damaged his brain, exited the back of his skull and lodged underneath his scalp. Dr. Filkins recovered the bullet from the back of Julio's head. Dr. Filkins testified that he observed the presence of stippling (gun powder burns) measuring 3.2 inches by 1.2 inches around the entrance wound. Dr. Filkins further testified that the stippling indicated a close-range gunshot wound. Dr. Filkins estimated that the muzzle of the gun was "no closer than an inch away from *** [Julio]'s body and no further than two or perhaps two and a half feet from *** [Julio]'s body." Dr. Filkins concluded that Julio died of a close-range gunshot wound to the head and that the manner of death was homicide.
On cross-examination, Dr. Filkins testified that there would likely be no presence of stippling if the gun were positioned 3 ½ feet or more from Julio's body. Dr. Filkins also testified that it would be "virtually impossible" for the gun to cause stippling if it were positioned 10 feet from Julio's body.
On redirect, Dr. Filkins testified that he observed various abrasions of the left side of Julio's body and the injuries were consistent with Julio falling down. On re-cross-examination, however, Dr. Filkins admitted that he did not have an opinion as to how Julio fell.
Manuel Garcia, defendant's cousin, testified on behalf of defendant. Manuel testified that on October 13, 1996, he lived in an apartment located at 1902 Green Lane in Palatine, Illinois. Four months prior to the shooting, Manuel hosted a birthday party for another cousin at his apartment. Defendant attended the party. Manuel testified that Gilberto and two other individuals arrived at the party uninvited. They began drinking and one of the individuals spoke to defendant. According to Manuel, an argument began between defendant and the individual which eventually developed into a physical confrontation. Manuel testified that he observed Gilberto punch defendant in the face. He further testified that during the fight someone hurled a baseball bat. Manuel denied seeing anyone with a knife.
Manuel also testified to events that occurred on the day of the shooting. Manuel testified that on October 12, 1996, he and defendant spent most of the day repairing defendant's van. Around 4 p.m., defendant and Manuel stopped working on the van because defendant had to drive his wife somewhere. When defendant returned, he and Manuel put the tools away and went to Manuel's apartment. Manuel, defendant and 8 to 10 other individuals drank beer in Manuel's apartment. Around midnight, defendant and his friend Gabriel left Manuel's apartment to purchase more beer. Around 30 minutes later, Manuel heard gunshots and saw two individuals being chased. He identified Gabriel as one of those individuals.
On cross-examination, Manuel denied ever stating to an Investigator Easton that defendant was the second individual being chased. Manuel did, however, admit that he never left his apartment to determine whether defendant was involved in the shooting even though neither defendant nor Gabriel ever returned to his apartment that night. Manuel also admitted that he never went to defendant's apartment, located 50 feet away, to make sure that defendant was safe. Manuel further admitted that he did not offer any information to the police about what he had seen. Manuel also admitted that he also did not call the police when Gilberto and defendant fought at his party four months earlier. He also identified Valentin as one of the individuals chasing Gabriel and another ...