Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois, Circuit No. 09-CF-281 Honorable Stanley B. Steines, Judge, Presiding
The opinion of the court was delivered by: Justice O'brien
JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
Presiding Justice Schmidt and Justice Wright concurred in the judgment and opinion.
¶ 1 Defendant Miguel Tamayo was convicted following a bench trial of first degree felony murder, aggravated battery, and mob action, and sentenced to a 20-year term of imprisonment. He appealed his conviction. We affirm.
¶ 3 Defendant Miguel Tamayo was charged with first degree murder, aggravated battery, and mob action. 720 ILCS 5/9-1(a)(3), 12-4(a), 25-1(a)(1) (West 2008). The indictment alleged that on June 20, 2009, Tamayo, knowingly and by the use of force and violence and without lawful justification, while acting together with Luis Carranza and Jose Antonio Reyes Gomez, participated in a fight in which Rodolfo Luevano and Juan Lopez were beaten and Lopez was killed (count I); that Tamayo caused great bodily harm to Luevano by striking him on the face and head (count II), and disturbed the peace while acting with Carranza and Reyes Gomez by striking Luevano (count III). Co-defendant Carranza was granted use immunity by the trial court immediately prior to trial. A bench trial took place at which the following evidence was presented.
¶ 4 Matt Stombaugh witnessed the incident. He was behind his house smoking around 2 a.m. on June 20, 2009. He heard loud voices and bottles breaking. He walked to the front of his house. He saw a man "bouncing" the head of another man on the ground on the south side of the street. On the north side of the street, about 15 to 20 feet away from the other altercation, he saw a man lying on the ground. One man was punching and kicking him and another man appeared to be swinging something at him, as well as punching and kicking him. He could not see if the second person had anything in his hand but it looked like he was using a swinging motion in hitting the victim. He did not see either Lopez or Luevano hit or kick their attackers. After he yelled at the attackers, they "all kind of grouped up for a split second it seemed like," and then ran east. The man from the south side of the street got up, staggered toward the other man, and asked Stombaugh to help his friend. Both men were bleeding from the head and face and the man on the north side of the street was gasping and spitting up blood. He called 9-1-1 on his cellular phone. Stombaugh admitted he was intoxicated when he witnessed the beatings. He also admitted the State's Attorney's office dismissed a domestic battery charge against him six days before he testified, although the dismissal was not in exchange for his testimony. He also admitted he had a 2006 conviction for unlawful possession of a weapon by a felon.
¶ 5 Rodolfo Luevano testified that he and longtime friend Lopez began drinking at 6 p.m. on June 19, 2009. They drank at a local tavern until 1 a.m. and he then took Lopez home. Lopez shared an apartment with Jose Romo and a man he knew only as Antonio. Lopez called him 20 to 30 minutes later and asked him to return to Lopez's apartment immediately. When he arrived at the apartment, he saw Lopez on the sidewalk with Reyes Gomez, Tamayo, and a third man he did not know. As the group began walking west, Luevano joined them. Reyes Gomez and Lopez were arguing. Reyes Gomez pushed Lopez. Tamayo took off his belt and began swinging it. After Luevano told Tamayo not to get involved, Tamayo hit him with his belt. He saw Lopez and Reyes Gomez, who were about 25 to 30 feet away, hitting each other. He did not see anyone else hit Lopez. Luevano chased Tamayo, who again swung at him with the belt. He was hit with the buckle. He saw Lopez fall to the ground and Reyes Gomez continue to punch him. He ran at Reyes Gomez and punched and kicked him. He was then hit in the back of the head and lost consciousness. When he awoke, he was on the ground. His head and face hurt and he noticed a lot of blood. He saw Lopez lying on the ground and people running away. He got up and went to Lopez, who was bleeding from the nose and mouth.
¶ 6 Luis Carranza testified under use immunity. He and Tamayo were good friends. Tamayo lived with his girlfriend's sister. He and Tamayo were both friends with Reyes Gomez, whom they visited on June 19, 2009, at his apartment. They arrived around 9:30 p.m., played PlayStation and drank beer. They later went across the street for several hours to socialize, then returned to the apartment. Juan Lopez was there. Carranza did not know him. Lopez asked Reyes Gomez about the rent and said Reyes Gomez would have to leave if he did not pay. Lopez and Reyes Gomez both sounded mad. He and Tamayo went to the porch, where Reyes Gomez joined them and argued with another tenant of the building. Lopez came out on the porch with Luevano. He did not know Luevano. Lopez and Luevano "wanted to fight." They spoke to Reyes Gomez, and Lopez swung at him, missed, and fell off the porch. Lopez appeared intoxicated. Lopez got up and walked toward the street with Luevano and Reyes Gomez. Luevano and Lopez were trying to hit Reyes Gomez. He and Tamayo tried to separate the three men and calm them down. Luevano threatened Tamayo, stating he knew where Tamayo lived and worked. Luevano then tried to hit Tamayo and also tried to hit him after he attempted to calm Luevano down. He hit Luevano. He could not see Reyes Gomez and Lopez. After Luevano again tried to hit him, Tamayo took off his belt and hit Luevano with it. Luevano at some point fell to the ground, where he and Tamayo kicked him. As he walked away, he saw Lopez on the ground and Reyes Gomez standing near him. He was not aware Lopez was badly injured. Neither he nor Tamayo hit or kicked Lopez. After the altercation, he retrieved his computer speakers from Reyes Gomez's apartment and walked home. Reyes Gomez came with him and spent the night at his house.
¶ 7 Sterling police sergeant Robert Allen responded to a 9-1-1 call at 2:15 a.m., on June 20, 2009. He found Juan Lopez lying in the street, bleeding and gasping for air. Rodolfo Luevano was standing near Lopez. He noticed a strong odor of alcohol in the area. Witness Stombaugh approached and told him three suspects ran east. Stombaugh had slurred speech and appeared to be intoxicated. After Lopez was taken to the hospital by ambulance, Allen was directed 30 feet west of Lopez's body, where blood was pooled. He noticed glass fragments, including pieces from a Chivas Regal bottle, on the sidewalk and curb. Sterling police officer Brad Barron arrived at the scene at 2:45 a.m. on June 20. He saw two pools of blood about 40 feet apart. He later questioned Luevano at the hospital.
Based on the information received from Luevano, he went to Tamayo's apartment. Tamayo, who was asleep when Barron arrived, was dressed only in his underwear. There were no injuries to his body and he did not appear to be in physical distress. He took Tamayo into custody and interviewed him at the police station. The interviews were taped and played in open court. He then returned to the hospital and interviewed Luevano again. Luevano picked Tamayo, Reyes Gomez, and Carranza out of photo arrays. Luevano said that Tamayo hit him with a belt and that Reyes Gomez hit Lopez. He also interviewed Carranza and did not observe that he was injured or in physical distress.
¶ 8 One of the doctors who treated Luevano in the emergency room stated that Luevano's injuries included five facial bone fractures, a cut below his right eye requiring four stitches, a cut at the back of his scalp requiring four staples, and injuries to his tailbone. His facial injuries could have been caused by a single punch or kick. Luevano's serum blood alcohol level was 0.164. He told doctors he drank a 12-pack of beer. Luevano was admitted to the hospital and released the following day. The doctor who treated Lopez in the emergency room stated Lopez was in cardiac arrest on arrival, with severe facial and head trauma. He had significant facial swelling and multiple facial abrasions. He was bleeding from the nostrils and ears. Lopez was unconsciousness and unresponsive, not breathing on his own, and without a pulse. He was subsequently pronounced dead.
¶ 9 The forensic pathologist who performed an autopsy on Lopez stated that Lopez died from cardiac arrhythmia caused by a physical altercation. He observed Lopez had fresh external injuries, including facial contusions and hemorrhaging and abrasions on his body, including a linear abrasion on his left arm. The left arm abrasion would have been cause by a blunt object dragging across the skin, although he could not rule out that an impact was not associated with the injury. An internal examination revealed hemorrhaging in two areas under his scalp and an hemorrhage in his brain consistent with an acute stroke. The examination also revealed that Lopez suffered from severe cardiac enlargement, and moderate to severe coronary ...