People v. Cruz, 1-88-2053

• Decision Date: 18 April 1990
• Docket Number: No. 1-88-2053,1-88-2053
• Citation: People v. Cruz, 554 N.E.2d 598, 196 Ill.App.3d 1047, 143 Ill.Dec. 663 (Ill. App. 1990)
• Parties: , 143 Ill.Dec. 663 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Allen CRUZ, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 598

554 N.E.2d 598

196 Ill.App.3d 1047, 143 Ill.Dec. 663

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Allen CRUZ, Defendant-Appellant.

No. 1-88-2053.

Appellate Court of Illinois First District, Third Division.

April 18, 1990.

Nidal Z. Zayed and Assoc., Chicago, for defendant-appellant.

Cecil A. Partee, State's Atty., Inge Fryklund, Gael O'Brien (Patrick J. Finley, Chicago of counsel), for plaintiff-appellee.

Presiding Justice CERDA delivered the opinion of the court:

The defendant, Allen Cruz, was found guilty following a jury trial of committing the offenses of attempted murder, aggravated battery, armed violence predicated on aggravated battery, and aggravated battery while using a deadly weapon, in connection with the shooting of Marisol Gonzales. Judgment was entered on the verdict for attempted murder, and the defendant was sentenced to serve 10 years imprisonment in the Illinois Department of Corrections. On appeal, the defendant contends: (1) there were numerous errors which deprived him of a fair trial and which should be noticed by this court under the plain error rule; (2) he was improperly convicted of multiple offenses for the same act; (3) his sentence is excessive; (4) the trial court erroneously instructed the jury on all four counts because the jury was mislead into believing there were four separate crimes committed; (5) he was not proved guilty beyond a reasonable doubt because there was insufficient evidence for proper identification; and (6) he was not proved guilty beyond a reasonable doubt of attempt (murder) because there was insufficient evidence to establish intent.

On the evening of Friday, December 5, 1986, sixteen year old Marisol Gonzales and her niece, fourteen year old Melissa Echevarria, went to a disco at Maple Lanes Bowling in Chicago. There they met a friend of Marisol's, twenty year old Israel Hernandez, and someone named Carlos. They danced and consumed some alcoholic beverages until the early morning hours of December 6, at which time Hernandez agreed to drive the girls home. After they left, the girls requested that they stop somewhere so they could use a rest room. Hernandez decided to take them to his father's tavern located at North Avenue and Monticello so that they could use the facilities there. Once inside, Carlos decided to leave the group and departed. Marisol entered the ladies room first, and Hernandez returned to his car to wait for the girls. Marisol then left and told Melissa she would wait for her in Israel's car. After Marisol entered Hernandez' car, Hernandez noticed a Buick LaSabre slowly approach and pull up along side his car. The testimony reveals that Hernandez' vehicle was parked on Monticello which is a one-way street going north. The Buick pulled up along side the passenger side, indicating that Hernandez had parked on the west side of Monticello and was seated closest to the curb. The windows on the Buick were tinted, concealing the occupants until a window was rolled down. Someone leaned out the window, smiled, and then pointed a handgun at Hernandez and Gonzales. Israel alerted Marisol and pushed her down on the seat, laying on top of her as a shield. Six shots were fired into the car, and then the Buick disappeared. Marisol received one bullet in her side.

Later that day, Hernandez flagged down an unmarked police car while walking west on North Avenue and spoke to an officer Guevara. Hernandez asked Guevara if they had captured the person who shot Gonzales. Officer Guevara advised Hernandez that he was unfamiliar with the investigation but drove Hernandez to the station after Hernandez stated that he thought the gunman was a member of a street gang called the "People" and that he could identify the gunman if he examined the police photographs. Hernandez subsequently identified the defendant, Allen Cruz, upon seeing his photograph in a book containing members of the "People" street gang.

The defendant first argues that his conviction must be reversed because there were numerous errors committed at trial. Conceding that these errors have been waived due to the trial counsel's failure to object at trial or raise them in his post-trial motion, he urges the court to apply the plain error rule. A defendant must make a timely objection at trial and again raise the issue in a post-trial motion in order to preserve the issue for review. (People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124.) A failure to comply with either requirement waives review of the issue. (People v. Jackson (1981), 84 Ill.2d 350, 358, 49 Ill.Dec. 719, 418 N.E.2d 739.) The waiver rule is not absolute, however, as Supreme Court Rule 615(a) (107 Ill.2d R615(a)) permits a court to take notice of errors not properly preserved for review where substantial rights are affected. The plain error rule may be invoked when the evidence is closely balanced or the error is of such magnitude that the defendant is denied a fair trial. (People v. Lucas (1981), 88 Ill.2d 245, 251, 58 Ill.Dec. 840, 430 N.E.2d 1091.) The rule does not, however, require a court to consider all errors involving substantial rights whether or not they have been brought to the trial court's attention. ( Jackson, 84 Ill.2d at 359, 49 Ill.Dec. 719, 418 N.E.2d 739.) The claimed errors include references to gang affiliation and a photograph of the defendant in a police mug book, remarks made during the prosecution's opening statement and closing argument, and an unsolicited remark made by the State's identification witness pertaining to past bad acts of the defendant. We have read the record and do not consider the evidence to be closely balanced. Nor do we regard the alleged errors to be of such magnitude that the defendant was denied a fair trial. Thus, the points raised by the defendant are waived.

Our refusal to apply the plain error rule is also due in part to the defendant's failure to cite any authority in contending that he has been denied a fair trial. The defendant's brief contains only excerpts from the transcript and bare assertions. Supreme Court Rule 341(e)(7) (107 Ill.2d R341(e)(7)), which is made applicable to criminal appeals pursuant to Supreme Court Rule 612 (107 Ill.3d R612), requires that arguments in support of issues raised on appeal contain the contentions and the reasons in support thereof with citations to authorities. Points raised but not properly briefed are waived. (People v. Adams (1969), 109 Ill.App.2d 385, 388, 248 N.E.2d 748.) As one court explained,

"If the case is not properly presented and the court is not given the benefit of precedents there is a danger of a decision being rendered that will not be in harmony with the weight of authority. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

* * * * * *

Reviewing courts are entitled to have the issues clearly defined, to be cited pertinent authorities and are not a depository in which an appellant is to dump the entire matter of pleadings, court action, argument and research as it were, upon the court." (People v. Ortiz (1980), 91 Ill.App.3d 466, 475, 46 Ill.Dec. 919, 414 N.E.2d 1072.)

The defendant next contends that he was improperly convicted of multiple offenses for the same act. He urges this court to vacate his conviction for attempted murder, contending it is a less serious offense than armed violence. He further requests this court to vacate his convictions for the two counts of aggravated battery. Where the same physical act constitutes more than one offense, it is proper to enter judgment and sentence only on the most serious of the offenses. (People v. Donaldson (1982), 91 Ill.2d 164, 61 Ill.Dec. 780, 435 N.E.2d 477; People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838.) The defendant, however, was only convicted of one offense as judgments were never entered on the guilty verdicts for armed violence and the two counts of aggravated battery. The record clearly shows that Cruz was convicted only of attempted murder. In the absence of a judgment formerly entered or sentence imposed, there is no "conviction." (Ill.Rev.Stat.1985, ch. 38, par. 2-5.) A jury verdict does not equal a judgment of conviction. (People v. Lashmett (1984), 126 Ill.App.3d 340, 345, 81 Ill.Dec. 656, 467 N.E.2d 356.) Thus, insofar as the rule against multiple convictions is concerned, the trial judge was in compliance with King. There is no need to reach the question of which is the more serious offense.

The defendant argues next that his sentence is excessive, and he asks that it be reduced. The offense of attempted murder is a class X felony carrying a sentence from 6 to 30 years imprisonment. (Ill.Rev.Stat.1985, ch. 38, pars. 8-4, 1005-8-1(a)(3)). The trial judge sentenced the defendant to 10 years in the Department of Corrections. Reviewing courts have the authority to reduce sentences under Rule 615(b)(4). (107 Ill.2d R615(b)(4).) A reviewing court cannot, however, reduce a sentence unless there has been an abuse of discretion by the trial judge. (People v. La Pointe (1982), 88 Ill.2d 482, 492, 59 Ill.Dec. 59, 431 N.E.2d 344.) The trial judge's decision regarding sentencing is entitled to great deference and weight (La Pointe, 88 Ill.2d at 492-93, 59 Ill.Dec. 59, 431 N.E.2d 344), and the reviewing court cannot substitute its own judgment merely because it would have balanced the appropriate factors differently. (People v. James (1987), 118 Ill.2d 214, 228, 113 Ill.Dec. 86, 514 N.E.2d 998.) The sentencing hearing revealed a criminal record consisting of convictions for possession of stolen automobiles, unlawful use of a weapon, criminal damage to property, and possession of cannabis. The defendant asserts that the trial judge did not give adequate consideration to the defendant's rehabilitative potential. The defendant's last prior conviction was in 1...