People v. Gutirrez
| Decision Date | 03 August 1990 |
| Docket Number | No. 1-86-1376,1-86-1376 |
| Citation | 564 N.E.2d 850,151 Ill.Dec. 395,205 Ill.App.3d 231 |
| Parties | , 151 Ill.Dec. 395 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victorio GUTIRREZ, properly known as Marco Alvarez, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Cecil A. Partee, State's Atty. of Cook County (Inge Fryklund, Asst. State's Atty., Sharon L. Heath, Sp. Asst. State's Atty., of counsel), for plaintiff-appellee.
Defendant, Marco Alvarez, 1 appeals his conviction and sentence following a 1986 jury trial. Alvarez was indicted by a Cook County grand jury on murder charges arising from a fatal shooting outside a Chicago social club. He was found guilty and sentenced to 38 years' imprisonment. (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a).) On appeal, defendant contends that he was denied a fair trial for one or more of the following reasons: (1) the State's failure to produce certain documents in violation of discovery rules; (2) the court's refusal to give a jury instruction on voluntary manslaughter; (3) improper and prejudicial comments during the prosecutor's closing argument; and (4) the State's failure to prove venue. He asks this court to reverse his conviction and remand the case for a new trial. Alternatively, in the event his conviction is affirmed, he requests a reduction in his sentence. Defendant maintains that the trial judge abused his discretion in sentencing him to a near maximum term, in light of his personal history and rehabilitation potential, and that the State's improper use of victim impact testimony entitles him to a new sentencing hearing.
The record reveals the following undisputed facts. At approximately 6 a.m. on January 19, 1985, Henry Vieyra was shot and killed instantly as he was about to enter a friend's car, which was parked in the near vicinity of the Shyway Club (Shyway's), an all-night bar at the corner of Blue Island Avenue and South Wood Street in Chicago. The bar had just closed for the night, and the temperature was well below zero. Vieyra and other patrons had left the club at approximately the same time to walk to their cars. Several of these persons testified as eyewitnesses to the shooting. In her opening statement, defense counsel conceded that Alvarez did, in fact, fire the single bullet that struck and killed the decedent. The question for the jury was whether defendant was guilty of murder as charged, or of the lesser included offense of involuntary manslaughter, based on his testimony that he had fired the gun recklessly, but without intent to harm Vieyra. Co-defendant Javier Garcia, the driver of the car from which Alvarez fired the fatal shot, was charged with murder under an accountability theory. He was contemporaneously tried before the bench and acquitted.
Jury selection for defendant's trial began and was completed on April 21, 1986. Before voir dire began, the assistant State's Attorney stated for the record that Alvarez was raising no affirmative defenses to the murder charge. One of the two attorneys representing the defendant confirmed that she had so informed the State. The next day, following the opening statements of counsel and the testimony of Elena Vieyra, the "life and death" witness, the State called its first eyewitness, Antonio Galarza.
Antonio Galarza testified that he had been Henry Vieyra's friend for about five years. On January 19, 1985, at approximately 5:45 a.m., Galarza saw Vieyra in Shyway's. Galarza then went out to his truck, which was parked across the street, in order to look for his keys. Discovering that his keys were in the ignition, and that the truck was locked, Galarza returned to the bar. On his way into the building, he noticed two heavy-set Hispanic men who were leaving. Galarza stated that he had never seen these individuals at Shyway's before. He made an in-court identification of Marco Alvarez and Javier Garcia as the two individuals whom he saw leaving the club. Galarza further testified that about ten minutes later, he left the club to go home, accompanied by his friends Eddy and Linda. As they were walking out, Galarza noticed a car coming from the south on Wood Street and "creeping very slowly" northward toward Blue Island, with its lights on. The car was coming from an area of Wood Street which is a dead end. Upon reaching Eddy's car, Galarza stood on the sidewalk while another friend of Eddy's attempted to jump-start the engine. Galarza further stated that he was still watching the car on Wood Street, which at this point was standing still. He described this car as a gold Cadillac with a white top. At that moment, "a hand just came out of the window" of the Cadillac's passenger side, and Galarza heard one shot. Then he heard the squeal of the Cadillac's tires as it turned right and drove east on Blue Island Avenue. As the car drove toward him before it turned, Galarza observed the driver through the untinted front window. He identified the driver as Javier Garcia.
Galarza further testified that when the shot was fired, the Cadillac had stopped beside a black car which was parked on Wood Street, facing the garage door of a factory building. He stated that when the hand came out of the Cadillac's passenger side window, the window was about three feet away from the rear of the black car, and about five to six feet away from its driver's side door. As Galarza ran closer to the black car in order to get a better view and description of the fleeing Cadillac, he noticed that Vieyra was lying face down on the ground beside the car, with his head toward the west, away from the building. Almost immediately after Galarza reached Vieyra, a Chicago police sergeant arrived in a squad car, and called an ambulance. The sergeant eventually drove Galarza and Eddy to the police station. Galarza further stated that he there identified a vehicle in police custody as the same Cadillac which he had seen at Wood and Blue Island.
On cross-examination, Galarza estimated that there were 45 to 50 people in the club that night, and stated that he had not been in Vieyra's company the entire time. Galarza further testified that he had earlier seen Vieyra, between 2 a.m. and 4 a.m., in another lounge. He stated that Vieyra had consumed some alcoholic drinks at both bars, but was acting "normal" and did not appear to be under the influence of alcohol or drugs. Galarza described his own alcoholic consumption as two drinks during a 45-minute period at Shyway's. He stated that he had consumed only non-alcoholic drinks at the other bar. With regard to the shooting, he further explained that he saw an arm, with a gun, extend "straight out" from the closed passenger-side door of the Cadillac. He also testified that he drew a diagram of the scene for a police officer at the station, indicating with "X" 's where he was standing, where his truck was, and where the cars involved in the shooting were, but not indicating any distances in feet. He stated that he believed he had left the diagram with the police.
Following Galarza's testimony, defense counsel informed the court that they had never received a copy of the diagram Galarza described, although they had filed discovery motions and had subpoenaed police street files. The assistant State's Attorney responded that he did not have the diagram, did not know if one existed, and would check further with the detectives assigned to the case.
Victor Quezada was the State's next witness. He testified that he had been Henry Vieyra's friend for about eight years. At approximately 5:50 a.m. on January 19, 1985, he had spoken with Vieyra in the Shyway Club, and had arranged to get a ride home with him. Quezada further stated that he left the bar soon after Vieyra did, and walked across Blue Island Avenue toward a black Cutlass automobile parked on Wood Street. As he was crossing Blue Island, he saw a gold Cadillac with a white top, "pulling up very slowly" from the south on Wood Street. He also saw Vieyra walk to the black Cutlass. Just as Vieyra was about to get inside the car, with his back facing Quezada, the Cadillac "crossed between" Quezada and Vieyra. Quezada then heard a shot, saw the Cadillac "take off," screeching, and then saw it turn east onto Blue Island Avenue. He also saw Vieyra fall to the ground. Quezada further testified that Vieyra was facing the building when the Cadillac pulled up, and that he did not turn around or speak before the shot was fired. Quezada stated that he did not see anyone inside the Cadillac because it had tinted windows. He estimated that the distance from the Cadillac to where Vieyra was standing on the driver's side of the Cutlass was five to six feet.
On cross-examination, Quezada testified that he had consumed about five tequila and grapefruit drinks at Shyway's between 2:15 a.m. and 6 a.m. He further stated that he came to the bar directly from home, where he had not been drinking. On further examination, he acknowledged that his left eye was a glass eye. While he was able to see the full driver's side of the Cadillac, he had not actually seen the shot being fired.
Sergeant Michael Mulligan testified that on January 19, 1985, he was assigned to the Chicago Police Department's 10th District, an area which included 2309 South Wood Street, the address at which Henry Vieyra's body was found. Sergeant Mulligan related that he was in a police squad car at approximately 6:30 a.m. when he received a report of a man shot at Wood and Blue Island, less than three blocks away. When he arrived on the scene, about six people were gathered around a man who was lying on the ground. The man was lying one to two feet from a car door. Mulligan further testified that when he turned the man over, he...
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