Court of Appeals of Illinois, First District, Third Division
Defendant’s convictions for first degree murder and robbery were affirmed over his contentions that the trial court inaccurately recalled the evidence presented at trial, since the evidence against defendant was overwhelming and the trial court’s misstatement about the evidence did not result in the denial of defendant’s right to due process, but the mittimus was corrected to reflect only one conviction for first degree murder.
Appeal from the Circuit Court of Cook County, No. 08-CR-3180; the Hon. James B. Linn, Judge, presiding..
Michael J. Pelletier and S. Amanda Ingram, both of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Peter Fischer, and Whitney Bond, Assistant State's Attorneys, of counsel), for the People.
Panel 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.
¶ 3 BACKGROUND
¶ 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 codefendant 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 ...