Appeal from the Circuit Court of Cook County. No. 08 CR 3180 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Hyman
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Sterba and Pierce concurred in the judgment and opinion.
¶ 1 Defendant Daniel Roman was convicted of robbery and first degree murder following a bench trial and sentenced to concurrent, respective terms of 7 and 35 years' imprisonment. On appeal, Roman contends that his conviction should be reversed and the matter remanded for a new trial because the trial court inaccurately believed that the physical evidence recovered from the scene corroborated eyewitness testimony and that the victim's cellular phone had been taken. He also requests that the mittimus be corrected to reflect one conviction for first degree murder.
¶ 2 We find that Roman forfeited his claim that the trial court inaccurately recalled the evidence at trial. As to the mittimus, two of Roman's three convictions for first degree murder should be vacated because there was only one decedent.
¶ 4 Defendant, his brother Martin, Adolfo Zuniga, and Carlos Lopez, along with Roman's cousins Ismael and Omar Morales, were charged with murder and robbery of the victim, Francisco Reyes. The charges arose from events that occurred around midnight on December 23, 2007, and continued into the early morning hours of the following day at a tortilla factory on the south side of Chicago. The victim, who was on the job operating a forklift at the factory, was fatally beaten.
¶ 5 Roman elected a bench trial. He and was tried simultaneously with co-defendant Ismael Morales, whose case was heard by a jury. At trial, Luis Fernando Garcia testified that he resided with his girlfriend, Sylvia Ortiz, and rented another apartment in the same building to the uncle of Ismael, Omar Morales, and Lopez. Garcia knew those men, as well Roman and Martin, from the neighborhood.
¶ 6 Shortly before midnight on December 23, 2007, Garcia heard Roman yelling outside. He recognized the voice because Roman was always yelling outside his home. Garcia saw Roman below his window talking on his phone and heard him yell for assistance to beat someone. Garcia then saw Ismael, Martin, Omar, and Lopez approach Roman and watched as the five men crossed the street to the tortilla factory where the victim was operating a forklift in the parking lot. The area was well lit. There was nothing blocking Garcia's view. He observed Roman and the other men pull the victim off the forklift and begin to kick and punch him. While they were attacking the victim, another man, Zuniga, arrived, and Garcia saw them remove the victim's billfold. Martin crossed the street to a construction site, where he picked up a concrete rock, which one of the men dropped on the victim's head twice. At this point, the victim appeared to be unconscious, and the men scattered. When police arrived, Garcia did not tell them what happened because he was afraid of the men involved in the fatal beating.
¶ 7 On December 27, 2007, however, Garcia went to the police station. He spoke with Detective Jose Garcia and told him what had happened to the man on the forklift and named the offenders. He also identified Roman in a photograph shown to him by the detective, and in January 2008, Garcia identified the offenders in a lineup. At trial, Garcia was shown a rock, but testified that it was too small to have been the rock that was used to strike the victim.
¶ 8 Sylvia Ortiz testified that at 11:50 p.m. on December 23, 2007, she heard a noise, looked out of the kitchen window, and saw a man on a forklift exiting the tortilla factory. The area was well lit and nothing obstructed her view. Ortiz testified that she heard Roman, whom she knew from the neighborhood, talking on his phone outside her window. She did not hear what he said, but then saw five men arrive. She stood on a chair and looked out her skylight window and saw the men pull the victim off the forklift and kick and punch him. One of the men then crossed the street and picked up a concrete rock, which he used to hit the victim twice. When Ortiz was shown a rock in court, she indicated that it was not the rock used to hit the victim. She explained that the rock used was larger and flatter than the one shown to her in court. Ortiz further testified that while the men were beating the victim, another man arrived and began to hit the victim as well. Ortiz said that she saw the men remove the victim's wallet from his pocket.
¶ 9 Police later arrived, but Ortiz did not tell them what happened--she feared for her safety and that of her family. On January 1, 2008, Ortiz went to the police station and told Detective Garcia what she had seen. Ortiz identified four of the offenders, including Roman, from photo arrays and later identified those individuals again in a lineup.
¶ 10 During the trial, co-defendant Ismael's counsel objected to the State's introduction of the rock exhibit. The court noted that the rock introduced in court was not the rock used on the victim and that the State was merely showing the witnesses what the police had recovered from the scene. The court explained that the rock exhibit was a demonstrative exhibit and showed that the rock used was more "menacing" than the rock recovered and displayed in court.
¶ 11 Detective Roberto Garcia testified that on December 26, 2007, he and his partner, Detective Swiderek, went to the tortilla factory to investigate. The detective had been informed that a piece of concrete was found under the forklift and moved to an area near the fence by one of the employees of the factory. Detective Garcia recovered and inventoried a piece of concrete 10 inches by 10 inches from the area. When asked if there ...