People v. Galindo

• Decision Date: 30 April 1981
• Docket Number: No. 79-1705,79-1705
• Citation: 95 Ill.App.3d 927,51 Ill.Dec. 359,420 N.E.2d 773
• Parties: , 51 Ill.Dec. 359 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Justo GALINDO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 773

420 N.E.2d 773

95 Ill.App.3d 927, 51 Ill.Dec. 359

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Justo GALINDO, Defendant-Appellant.

No. 79-1705.

Appellate Court of Illinois, First District, Fourth Division.

April 30, 1981.

[51 Ill.Dec. 360] Ralph Ruebner, Deputy State Appellate Defender, Rafael Schwimmer, Asst. State Appellate Defender, Chicago, for defendant-appellant

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Marcia B. Orr, Iris E. Sholder, Deborah M. Dooling, Asst. State's Attys., Chicago, of counsel.

LINN, Justice:

At the conclusion of a jury trial in the circuit court of Cook County, defendant, Justo Galindo, was found guilty of the murder of Pablo Lopez (Ill.Rev.Stat.1977, ch. 38, par. 9-1) and of armed violence (Ill.Rev.Stat.1977, ch. 38, par. 33A-2). Defendant was sentenced to a prison term of 28 years for the crime of murder.

On appeal, defendant contends reversible error occurred when: (1) the trial court erroneously permitted a State's witness to testify in violation of the discovery rules (Ill.Rev.Stat.1977, ch. 110A, par. 412(a)); (2) the trial court erroneously refused to admit impeachment evidence; and (3) the trial court erroneously allowed the prosecutor to make improper and prejudicial remarks during closing argument.

We affirm.

The State's Evidence

Santos Lopez, the brother of the victim, testified that on the evening of July 8, 1978, the night of the shooting incident, he and his two brothers, Manuel and Pablo, visited a tavern where they remained for about six Sometime shortly thereafter, Santos heard shots. He went back to the restaurant, opened the door, and saw his brother Pablo doubled over and profusely bleeding. His other brother, Manuel, also was bleeding from a wound. Pablo died shortly after his arrival at a hospital.

[51 Ill.Dec. 361] hours. They each had four beers and four drinks. After they left the tavern they walked to a nearby restaurant and purchased some tacos. They then went back to their parked van and ate the tacos. Pablo and Manuel later left the van to purchase more tacos. They had nothing in their hands.

On cross-examination, Santos asserted that he and his brothers did not speak to anyone in the tavern because they did not know anyone there. He also stated that when he heard a gun being fired, he had a premonition that his brothers were involved. He also stated that he found Pablo inside the restaurant and then he found Manuel after someone told him that Manuel was outside the restaurant.

Manuel Lopez also testified to the events surrounding the shooting incident. He asserted that when he and Pablo returned to the taco restaurant a second time, they were not carrying any weapons. Upon entering the restaurant, Manuel saw five men sitting at a table. He said to them "(w)hat's happening?" Their response was hostile. Pablo told them to calm down, but they wanted to fight. They told him to go outside. When Pablo reached the door and began to open it, Manuel heard two or three shots and fell to the floor. On cross-examination, Manuel asserted that he had opened the door and taken a step outside when he heard the shots. Manuel regained consciousness in the hospital. Manuel had been shot once in the face, twice in the back, and once in the arm.

Dr. Yuksel Konakci testified that he examined Pablo's body and observed a bullet wound on the left side of the back, one bullet wound on the right side of the chest, and two bullet wounds on the right arm. In his opinion, Pablo's death was caused by the bullet which entered the back and lacerated both lungs and the aorta, a major artery.

Miguel Claudio testified that on July 9, around 2 a.m., he was in a tavern on Chicago Avenue. At that time he heard two gun shots. He ran to the tavern door and opened it. As he looked across the street, he saw a man standing in front of the taco restaurant. The man was holding a gun and pointing it towards the restaurant. He then saw two men coming out of the front door of the restaurant. They had nothing in their hands. The man holding the gun fired it and the first man coming out of the restaurant fell to the ground. The second man went back into the restaurant. Claudio asserted he did not see the man holding the gun shoot the second man. The gunman then ran in a westerly direction. Claudio was unable to identify the gunman because he did not see his face.

Claudio then ran across the street and saw that the man who had been shot was profusely bleeding. This man was outside of the restaurant. On cross-examination, Claudio asserted he did not know this man or his brothers prior to the shooting incident. Claudio also said again that he was unable to positively identify the gunman because he did not see his face.

Police Officer Pedro Garza testified that when he arrived at the restaurant, he observed a male, later identified as Pablo, lying on the floor just inside the restaurant doorway. He appeared to be dead. Officer Garza also observed another male Latin, later identified as Manuel, lying on the sidewalk, just east of the restaurant. He appeared to be alive. Officer Garza recovered five expended .38 caliber automatic cartridges near the bodies. On cross-examination, Garza asserted that he did not recover any weapons or baseball bats from the scene of the shooting.

The stipulated testimony of Donald Smith, a firearms expert, was read to the jury. In his opinion, all five expended bullets came from the same .38 caliber super automatic gun.

Investigator John Dahlberg testified that, on July 29, 1978, he went to San Bernardino to arrest the defendant, and returned with the defendant to Chicago on July 30, 1978. At police headquarters, Dahlberg interviewed defendant who told Dahlberg that on the night of July 8, 1978, he, his brothers Enrique and Rafael Galindo, his nephew, Alentar, and his friend Jimenez, went to a taco restaurant to get something to eat. While they were there, a Mexican man came into the restaurant. This man grabbed Enrique's shoulder and said he wanted to fight with him outside the restaurant. Defendant told the man that they didn't want "any difficulties." Defendant also asked him not to fight. The man left, saying he would return.

Shortly afterwards, the man returned with another Mexican male and three other males who had baseball bats. The two Mexican men pulled defendant and Enrique outside of the restaurant. One of these other men demanded money from Enrique and Enrique gave him seventy dollars. The man then struck Enrique over the head with the baseball bat. The second Mexican man then took the baseball bat and he too hit Enrique. The blow caused Enrique to fall to the ground.

Enrique's assaulter then turned to defendant and, holding the baseball bat upright, started toward him. Defendant told him he did not want any trouble, but nevertheless the man continued toward him. Defendant then pulled a pistol from his trousers, pointed it at the man, and said he did not want any trouble. When the man continued toward him, defendant fired the pistol several times. Defendant then turned and ran. When he looked back, the group began beating his brother. Defendant ran home and threw away the .38 caliber gun. Defendant left Chicago that night and hitchhiked to San Bernardino.

The Defense

Hugo Dacinsio testified that on July 9, 1978, in the early morning hours, he was walking near a taco restaurant and he heard people arguing. Dacinsio looked in the window of the restaurant. He saw two men arguing. One man pulled another by his shirt and pushed him outside the restaurant. Then the man who was pushing the other hit the other over the head with what looked like a baseball bat. The man who had been struck fell to the ground. He did not know the man. He walked away because he did not want to get involved. After walking a few steps he heard a gun fire about five or six times. He did not see who fired the gun.

The defendant testified that while he was in the taco restaurant, a man who appeared to be drunk approached his brother Enrique and began calling him names. Defendant asked the man to leave and he did. A short time later, this man returned with another man and told Enrique to go outside of the restaurant. The men pulled Enrique outside. There were two or three more men outside who were holding baseball bats. They beat his brother Enrique and took his money.

The group then began to move towards defendant. Defendant told them to get away from him. When they kept approaching, defendant fired his gun. Defendant left for California that night because he feared that his family would not be safe if he remained.

Enrique Galindo testified that an intoxicated man and another man approached him in the taco restaurant and cursed him. Enrique told them he did not want any trouble. The men pulled him outside, where they were joined by others. All of them attacked him and, using baseball bats, they hit him over his head. They also took seventy dollars from him.

On cross-examination, Enrique denied that he had had any conversations with the police at the hospital or at anytime. He also asserted he did not tell any police officer that his brother had shot two people with a .38 caliber gun because of an argument over his father's death. He also denied telling the police that his brother went to Mexico. The State's Rebuttal

Three police officers testified to the substance of their conversations with Enrique. The officers' testimony substantially contradicted the cross-examination testimony of Enrique.

The jury found defendant guilty of murder and armed violence. This appeal followed.

OPINION

I

Plaintiff first contends that the State's failure to give defense counsel notice of the identity of its rebuttal witness violated the discovery rules (Ill.Rev.Stat.1977, ch. 110A, par. 412(a)) and the trial court's refusal to exclude the witness' testimony denied defendant a fair trial. The discovery rules provide that the State must give...