People v. Escobar
| Decision Date | 26 September 1979 |
| Docket Number | No. 78-569,78-569 |
| Parties | , 32 Ill.Dec. 647 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Hector ESCOBAR, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Ralph Ruebner, Deputy State Appellate Defender, Chicago (Alan D. Goldberg, Asst. State Appellate Defender, Chicago, of counsel), for defendant-appellant.
Bernard Carey, State's Atty. of Cook County, Chicago (Marcia B. Orr, Nicholas Iavarone, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.
The State maintains that Hector Escobar drove a car which carried a gunman who fired upon and killed Bryan Wagner. Escobar denies being the driver. The State's single occurrence witness recognized the driver as an old high school acquaintance whom he knew only as "New York." Escobar also denied being that acquaintance. He was tried before a jury, convicted of murder, and sentenced to 14 to 30 years in prison. He appeals.
Before trial, the court denied motions to quash arrest, to suppress statements, and to suppress identification.
The State's only occurrence witness, Joseph Bradtke, was 18 years old when he testified, 17 at the time of the murder. He had known Bryan Wagner "for many, many years," and was a good friend of Bryan. Bradtke had attended Lakeview High School, but had left school several years earlier.
The resolution of this appeal requires that Bradtke's testimony be set forth at some length. At 12:30 a. m. on August 19, 1976, Bradtke and six friends, including Bryan, were drinking beer on or near his front porch at 1623 West Byron Street in Chicago. Bryan and Ronnie Yukawa were riding bicycles in front of the porch near the curb.
A blue Chevrolet automobile turned onto Byron Street, almost hitting Bryan. The witness, who did not observe anyone else in the car, yelled out "slow down" to the driver. The driver responded by gesturing with his middle finger and yelling something in Spanish.
Meanwhile, Ronnie Yukawa, who had ridden to the corner on his bicycle, was heading back to his companions. The car pulled alongside and the driver asked Ronnie, "What did you say?" Ronnie replied, "I didn't say anything." The witness approached the car and told the driver that he, not Ronnie, had said, "Slow down." The driver began cursing and Ronnie punched him in the face. The witness said, The driver told the witness he was crazy and began cursing again, and Ronnie punched him again. The witness then told the driver, "Please, just leave before any more trouble starts," to which the driver replied, "Yes, I'm leaving but I'll be back."
When later cross-examined about this portion of the evening, Bradtke admitted, after being shown a copy of his statement to the police, that he had not told the police he and the other boys had been drinking that night. Bradtke also admitted that during two interviews with the police on August 19, he had not told them that Ronnie hit the driver with a belt wrapped around his fist. He did not tell them of any physical acts against the driver. Bradtke explained that he had not forgotten, but had "decided to cover for my friends." Not until 3 days later, when Ronnie told Bradtke "not to cover for him" but to tell the police the whole truth, did Bradtke reveal these facts to the police.
Having run out of beer, Bradtke and his companions headed down Marshfield north toward Irving Park Road to buy some more. Ronnie and Bryan rode their bikes while the rest walked. Bradtke testified that during this walk, he observed a car coming about 35 m. p. h. southbound on Marshfield; the car, either a Vega or a Pinto, then slowed to about 3 m. p. h. Bradtke was "face to face" with the driver. At that point, the witness saw a man who had been hiding in the back seat raise his head. The driver appeared to have a conversation with his passenger, as the witness and his friends continued on their way, some of them throwing bricks after the car.
On cross-examination about this episode, Bradtke testified that, during his contacts with the police on August 19, he did not tell the police that there were bricks and stones thrown at the car, because he wanted to "cover for" somebody. Although he had told the police that it was about 20 minutes between the blue Chevy driving away and the second car appearing, on cross-examination he was only able to set the time interval as somewhere between 20 minutes and an hour and a half. He further testified that the four other boys (excluding Bryan and Yukawa) were standing around him, within 4 or 5 feet from one another as the car passed; he also said that it was dark.
As they approached Irving Park Road, Bryan, who was still riding his bike, said, "There is that car again." The car, now on Irving Park eastbound, slowed as it approached the corner of Marshfield. Bryan, who was ahead of those on foot, made a U-turn with his bike and came toward the witness and the others. As the passenger side of the car came alongside where the witness and his friends were standing, the car stopped, and a person in the rear right seat fired a gun. Bryan, who was about 5 feet from Bradtke, began pedalling away from the car. The witness heard six shots.
When Bradtke realized that he was being fired at, he took cover near a wall. Then, as the car began to pull away, he saw Bryan fall over the handlebars of his bike, get back up, and walk over to him. The witness, observing blood over Bryan's lips and nose, asked if he was all right. Bryan replied, "I don't know," and then, "Let's get 'em, Joe." As Bryan spoke those words, he vomited blood and fell into a nearby store doorway.
On cross-examination, Bradtke testified that, before the gunman began to fire, he was able to see the entire side of the car. It was a two-door, and the rear right side window was rolled down, with an inch of glass showing in the window frame. He saw only the first two letters on the license plate, and these letters were "NY." He told the police that the car was either a Vega or Pinto. The police report he signed described the car as a red Vega. Several of the other boys were standing around Bradtke when the shooting began.
Bradtke made an in-court identification of the defendant as the driver of the second car. He testified that he had first met the defendant 2 or 3 years before the shooting, when Bradtke was attending Lakeview High School. He had also seen him occasionally since then. At school he knew the defendant only by the name of "New York." On the night of the shooting, he described the driver to police as 19 to 20 years old with a little goatee and very curly hair which was frequently slicked down. He added that the driver was about 6 feet tall, and always wearing high-heeled shoes. Bradtke further testified that, on the night of the shooting, he would have been unable to determine the driver's height, and that the description he had given the police did not reflect the driver's appearance, but the appearance of the man whom he had known in high school.
Bradtke also testified that on August 19, 1976, he was taken to the police station, where he looked through high school yearbooks and chose a picture of the defendant, Escobar. Later that day, he and three of his companions at the murder scene viewed a lineup. Bradtke identified the man he had known as "New York." After the lineup he was told that the man he had identified was Hector Escobar. After this lineup, the police left the viewing room unattended, at which time, Bradtke testified, the defendant told him that "I was going to be dead before Bryan was buried."
At this point, the defense moved for a mistrial, based on the State's failure to comply with a discovery motion requesting the contents of all statements made by the defendant and a list of witnesses to the making of the statements. The defense maintained that Bradtke's testimony about Escobar's threats fell within the scope of the discovery request, yet no information about the statement had been given to the defense. This motion was denied.
Bradtke testified that when his friends told him they had not identified anyone in the lineup, he "might have been" pretty upset. When he contacted police to determine what had happened, he learned that Escobar had been released. Bradtke, however, was convinced that Hector Escobar had driven the car, and he wanted the guilty person "to pay for it."
On August 23, 1976, Bradtke returned to the police station. He gave the police one of several shell casings that he said were used to shoot Bryan Wagner. On redirect examination, Bradtke was asked if he knew or had heard where the shell casings came from. The defendant's hearsay objection was overruled, and Bradtke testified that he was told they were found in the back seat of New York's car. He had the casings for a day or two before turning one of them over to the police; he did not give the casings to the police when he received them on August 21 because he might have wanted to settle the matter himself.
Also on redirect examination, Bradtke agreed that "everybody" knew the defendant as New York. The trial judge termed the question "preliminary" and overruled a defense objection. The witness was then asked whether Bryan Wagner knew the defendant as New York. After he answered yes, another defense objection was made, but this one was sustained; the court, though, did not rule on a motion to strike.
Following Bradtke's testimony, the defense moved for a mistrial, citing the State's failure to comply with a defense discovery motion requesting photographs shown to any witness making an identification. The State had never informed the defense of Bradtke's use of the yearbooks, and the defense had no prior opportunity to examine them. Counsel also renewed the motion to suppress identification, on the same grounds. These...
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