People v. Babiarz

• Decision Date: 17 February 1995
• Docket Number: No. 1-91-3173,1-91-3173
• Citation: 207 Ill.Dec. 681,271 Ill.App.3d 153,648 N.E.2d 137
• Parties: , 207 Ill.Dec. 681 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor BABIARZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 137

648 N.E.2d 137

271 Ill.App.3d 153, 207 Ill.Dec. 681

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor BABIARZ, Defendant-Appellant.

No. 1-91-3173.

Appellate Court of Illinois First District, Fifth Division.

Feb. 17, 1995.

[271 Ill.App.3d 154] [207 Ill.Dec. 684]

Michael J. Pelletier, Karen Daniel, Office of State Appellate Defender, Chicago, for appellant.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, James E. Fitzgerald, Michele I. Lavin, of counsel), for appellee.

Justice GORDON delivered the opinion of the court:

BACKGROUND

The defendant-appellant Victor Babiarz was charged with the February 12, 1989 murder of Miguel Panigua. On July 25, 1991, a jury found the defendant guilty and the circuit court entered judgment on that verdict. The court subsequently sentenced the defendant to a forty year term of imprisonment. For the reasons set forth below, we affirm both the defendant's conviction and his sentence.

FACTS

The defendant filed a motion in limine to exclude from evidence a 9 millimeter handgun recovered from his residence at the time of his arrest. The State conceded that the recovered handgun could not have been used in this offense. The court subsequently denied the defendant's motion.

Trial commenced on July 23, 1991. John Alvarado testified for the State that he was inside his apartment at 2626 W. 23rd Street in Chicago at about 11:00 p.m. on February 12, 1989 when he heard approximately five gunshots on 23rd Street, just outside of his residence. He stated that the first report sounded softer than those that followed, as if from a smaller firearm. Alvarado went outside and found the victim, Miguel Panigua, laying on the sidewalk before 2620 W. 23rd Street. Panigua was alive but had multiple gunshot wounds.

Maria Ramirez testified next and stated that she lived at 2611 W. 23rd Street on February 12, 1989 and also heard five or six gunshots at approximately 11:00 p.m. She immediately went to a window and saw two males, whom she could not identify, walking eastbound on the north side of 23rd Street at a fast pace. They proceeded past her apartment and then ran northbound through a gangway at 2606 W. 23rd Street.

Boyce Flowers also testified, stating that he, the defendant, Alexander Sanchez, and Francisco Sanchez, Alexander's brother, all belonged to a street gang called the Cullerton Deuces. At approximately 10:00 p.m. on February 12, 1989, Flowers sat in a car with Francisco Sanchez and others. Francisco exited that car and spoke briefly with his brother Alexander and the defendant; Alexander and the defendant then walked away.

Approximately one hour later, the defendant and Alexander Sanchez returned to the car. Both appeared "excited, nervous." The defendant stated that "[w]e just shot a Disciple on 23rd Street" and "we lit them up ugly." Alexander Sanchez stated "[w]e got a D, a Disciple." Either the defendant or Alexander then said "we did that for you, Francisco." Flowers stated that the Satan Disciples were the major rival street gang of the Cullerton Deuces and that in July of 1988 Francisco Sanchez had been shot, presumably by a Satan Disciple.

Chicago Police Detective John Summerville testified that he developed information that the defendant had been one of the assailants in this case and therefore went to his apartment on March 3, 1989 to arrest him. Before Summerville arrived at the defendant's apartment he discovered an outstanding arrest warrant for him but did not know the offense upon which that warrant was based.

The defendant's grandfather admitted Summerville and other detectives into the apartment where they discovered the defendant hiding in a closet. Summerville stated that the grandfather gave them a 9 millimeter handgun which he said had been within a rolled carpet outside, on a rear porch. Summerville identified this handgun in court but testified that it could not have been used to shoot the victim.

Summerville and Detective Ricardo Abreu interviewed the defendant at the Area 4 Detective Division office on the early morning of March 3, 1989. The defendant confessed that on February 12, 1989 he and Alexander Sanchez shot the victim. He stated that he and Alexander decided to shoot a member of the Satan Disciples and that both were armed with handguns, he with a small semiautomatic and Alexander with a larger handgun. They encountered the victim on 23rd Street and, after an exchange of gang hand signals, identified him as a Satan Disciple.

According to Summerville's testimony, the defendant stated that he and Alexander Sanchez initially proceeded to rob the victim at gunpoint but, after the victim again flashed Satan Disciple hand signs, Alexander shot him several times. The defendant admitted firing his gun only once, deliberately missing the victim. They then fled, hid their guns in an alley, and rejoined Boyce Flowers, Francisco Sanchez, and the others in the car.

Assistant State's Attorney Kay Hanlon testified that she interviewed the defendant later in the morning of March 3, 1989 and that he made essentially the same confession that he made to Summerville and Abreu. However, in this later confession the defendant clarified and changed his earlier statement. Alexander Sanchez had telephoned him, requesting that he come to the neighborhood of 21st Street and Washtenaw. The defendant did so and brought along his .25 caliber semiautomatic.

He met Alexander Sanchez and they agreed to shoot a Satan Disciple in retaliation for the July 1988 shooting of Francisco Sanchez, Alexander's brother, for which they believed the Satan Disciples to be responsible. The defendant admitted that he and Alexander neither intended nor attempted to rob the victim. The defendant stated that Alexander shot the victim five or six times but that he shot him only once.

The State presented the following testimony relating to the physical evidence in this case. Officer James Shadur of the Chicago Police Department testified that he responded to 2620 W. 23rd Street immediately after the shooting and recovered one cartridge casing twenty to twenty-five feet from where the victim's body had been laying.

Dr. Shaku Teas testified that on February 13, 1989 she worked as a pathologist for the Cook County Medical Examiner's office and examined the victim's body, determining that he died as a result of six gunshot wounds. She recovered four bullets from the body which were sent to the Chicago Police.

Chicago Police Officer Richard Chenow examined the four bullets which Dr. Teas recovered and determined that they were either .38 or .357 magnum caliber (.38 and .357 magnum cartridges contain identical bullets) and that they had been fired from the same revolver. Chenow, also examined the cartridge casing which Officer Shadur recovered and determined it to be from a .25 caliber semiautomatic. He stated that firing a .25 caliber handgun would produce a much quieter report than firing either a .38 or .357 caliber handgun. Chenow identified the 9 millimeter handgun recovered from the defendant's apartment and, like Detective Summerville, stated that it could not have been the murder weapon because, due to the difference in caliber, it could not have fired the recovered bullets.

The defendant testified on his own behalf, denying that he shot the victim, that he saw Alexander Sanchez on February 12, 1989, that he possessed a .25 caliber handgun, or that he belonged to the Cullerton Deuces street gang. He stated that on February 12, 1989, he and two friends, Rubin Sanchez and Raudel Sanchez, attended a "Teen Night" at a nightclub. They arrived at about 7:00 p.m. and left at around 10:30. After they left, they walked to Rubin Sanchez' residence. On their way to Rubin's residence, they saw Boyce Flowers, Francisco Sanchez and two others who were sitting in a car, drinking. They spoke to that group briefly and then continued to Rubin's apartment where the defendant spent the night.

Raudel Sanchez testified for the defense and corroborated the alibi to which the defendant testified. On cross-examination, the Assistant State's Attorney asked whether Raudel had been arrested for burglary. The defendant immediately made an objection to that question which the court sustained. Rubin Sanchez also testified, corroborating the alibi to which the defendant and Raudel Sanchez testified.

In rebuttal, the State called Edward Hamilton, who worked as a paramedic at the Cook County Jail on March 4, 1989. On that date, he performed a physical examination of the defendant, which revealed no signs of injury, and prepared a written intake report recording the results of that examination. During his testimony, Hamilton read from the report he had prepared because he could not recollect his examination of the defendant. Hamilton was never asked, and thus never testified, whether that report was accurate; nor did he testify that by looking at the report his memory was refreshed.

On July 25, 1991, the jury found the defendant guilty of first degree murder and the court entered judgment on that verdict. On August 26, 1991, the court held a sentencing hearing, indicating that it had read the presentence investigation, which indicated that the defendant was seventeen at the time of the offense and had no reported criminal history, that it considered the statutory factors in aggravation and mitigation, and that it considered counsels' arguments. The court then sentenced the defendant to a forty year term of imprisonment.

On appeal, the defendant raises the following issues: (1) that the trial court erred in admitting the 9 millimeter handgun recovered from the defendant's apartment because that handgun could not have been the murder weapon; (2) that Detective Summerville's testimony that the defendant was wanted on an unrelated warrant at the time of his arrest impermissibly alluded to the defendant's prior criminal conduct; (3) that neither the intake report nor the...