People v. Morales

• Decision Date: 09 November 1993
• Docket Number: Nos. 2-92-0098,2-92-0154,s. 2-92-0098
• Parties: , 191 Ill.Dec. 274 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor MORALES and Francisco Aguirre, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 864

623 N.E.2d 864

251 Ill.App.3d 1001, 191 Ill.Dec. 274

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor MORALES and Francisco Aguirre, Defendants-Appellants.

Nos. 2-92-0098, 2-92-0154.

Appellate Court of Illinois,

Second District.

Nov. 9, 1993.

G. Joseph Weller, Deputy Defender, Paul Alexander Rogers, Thomas A. Lilien (argued), Asst. Defender, Office of State Appellate Defender, Elgin, for Victor Morales.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, David A. Bernhard (argued), State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice COLWELL delivered the opinion of the court:

Defendants, Victor Morales and Francisco Aguirre, appeal from their convictions in the circuit court of Lake County of aggravated battery, causing great bodily harm (Ill.Rev.Stat.1991, ch. 38, par. 12-4(a) (now codified, as amended, at 720 ILCS 5/12-4(a) (West 1992))). Defendant Aguirre also appeals from the trial court's imposition of the maximum extended term of 10 years.

Defendants argue on appeal that the State's evidence was insufficient to prove guilt beyond a reasonable doubt and that defendants were unfairly surprised by the complainant's testimony because the State failed to supply them with notice of it in the discovery materials. Defendant Aguirre further argues that the trial court improperly admitted evidence regarding his alleged role as the chief of the Latin Lovers, a Waukegan street gang, and that two of the extended-term factors considered by the trial court are unconstitutional. We affirm.

On August 16, 1991, defendants were charged by information with two counts of aggravated battery. Each defendant retained his own counsel. On August 28, the Lake County grand jury returned a three-count indictment supplanting the complaint. The indictment charged the two defendants, along with Roberto Dominguez and Carlos Cortez, with the commission of offenses against Keith Smith on August 15, 1991. The counts charged in the indictment were attempted murder, aggravated battery (great bodily harm form), and aggravated battery (public way form).

Dominguez pleaded guilty to a charge of aggravated battery and has a separate appeal pending before this court (No. 2-92-0429). Cortez was not apprehended.

The cause proceeded to a joint bench trial on December 9, 1991. Both defendants moved for an examination of Smith's competency before he testified, based on his having sustained brain damage and his lacking recollection. The motion was denied as not sufficiently raising a question of competency to require a hearing in advance of the witness testifying. The trial court directed a finding for defendants on the attempted murder count and acquitted them on the count of aggravated battery involving public property. The court convicted each defendant of the count of aggravated battery causing great bodily harm.

Aguirre filed a motion to reconsider and for a new trial. Morales also filed a motion for a new trial. On January 17, 1992, the court sentenced Morales to a term of 4 1/2 years' imprisonment and Aguirre to an extended term of 10 years' imprisonment. Aguirre's motion to reconsider the sentence was denied. Both defendants timely appealed, and their appeals were consolidated by this court.

Accounts of the events of August 15, 1991, vary considerably. All of the witnesses concur, however, that, after dark that evening, Keith Smith entered Yeoman Park with several fellow members of the Latin Lovers, including Morales, Aguirre, Dominguez, and Cortez, where he underwent a three-minute "violation," or beating, in order to be released from membership in the gang. Smith fell unconscious during the beating and was subsequently taken to St. Therese Hospital in the truck of another gang member, Jacid Prado.

The parties stipulated to the testimony of Dr. Avilla of St. Therese Hospital, as reflected in his medical reports. Dr. Avilla examined Smith on August 16 and thereafter and performed a craniotomy. According to medical reports, Smith suffered from an acute subdural hematoma on the left side, multiple facial injuries, and blunt trauma to the abdomen with hematuria. He was transported from the hospital to the Rehabilitation Institute of Chicago on September 9, 1991. He was released from the Institute on November 14, 1991, and at the time of trial was attending a rehab program on a daily basis from 8 a.m. to 4 p.m.

Witnesses called by the State included several members of the Latin Lovers gang. Keith Smith, the complainant, was 15 years old at the time of the incident and stated that he had been a member of the Latin Lovers for about eight months. Jacid Prado, who described himself as a close friend of Smith, was a member of the gang for 8 to 12 months before August 15, 1991, and got Smith a job with his father's construction company. Felipe Diaz, 20 years old at the time of trial, testified that he had been in the Latin Lovers for three years, had been chief of the gang three months prior to August 15, 1991, but had gotten out by the time of trial. Diaz testified before the grand jury on August 28, 1991, in exchange for the State's promise not to prosecute him for the offenses against Smith.

The State also called 16-year-old Jose Olivero, who testified that he was a friend of Smith and not a member of any gang on August 15, 1991; 17-year-old Jose Medina, who, after beginning his testimony by denying ever being a gang member, admitted on cross-examination to being in the Satan's Disciples, an allied gang of the Latin Lovers; Officer Hendley, a Waukegan police officer; and Lolita Torrez, Morales' fiancee.

Each defendant called one witness. Morales called Officer Hendley and Aguirre called Roberto Dominguez. Dominguez had been a member of the Latin Lovers for a year as of the time of trial and was in jail awaiting sentencing, having pleaded guilty to aggravated battery. Dominguez testified that only he and Cortez inflicted the beating on Smith.

The significant differences in testimony revolve around precisely who was present before, during, and after Smith was "violated"; what were the rules and protocol of a violation; who was the chief of the Latin Lovers on August 15, 1991; and what role Morales and Aguirre may have played in the incident. The chronology of the events is generally agreed upon.

Around 9 or 10 p.m. on August 15, Smith and his friend Jose Olivero were walking near Yeoman Park when they were approached by Aguirre, Morales, Dominguez, Cortez, and Diaz. Diaz testified that he was riding a bicycle alone on August 15 when he came upon Smith and the others and that individuals called "Face" and "Oh Boy," whom Diaz identified as the leader of the Satan's Disciples, were also present, along with "a couple of the other gang members." Diaz also stated that Smith was in the company of members of a gang called the Last Deeds.

According to Smith, the Yeoman Park area was in the territory of the Satan's Disciples. Smith testified that he wanted to leave the Latin Lovers and had spoken about joining the Satan's Disciples, although he did not really want to go to another gang. Jacid Prado testified that the Latin Lovers had a rule against not hanging around with the members. He stated that both he and Smith, who saw each other daily, stopped spending time with fellow gang members prior to August 15, 1991. Dominguez also testified that Smith had stopped hanging around with the gang for some time before August 15. Prado said he was warned prior to August 15 that members were going to beat up those who did not hang around with the gang.

Initiation into the gang required undergoing a one-minute violation, which evidently consisted of fighting one, two, or three members of the gang for one minute and did not include contact with the face. Getting out of the gang required undergoing a three-minute violation, which, by all but one witness' account, meant fighting with three members for three minutes. Dominguez offered the conflicting testimony, stating that the number of members administering the beating for leaving the gang was the same as for entering: "[i]t can be 1, it can be 10." Use of the hands and the feet was permitted, as well as contact from head to toe, including the face.

Smith testified that he had witnessed "maybe about two" violations as a member of the gang. Diaz testified that the gang instituted the rule requiring a three-minute beating to get out of the gang one month prior to August 15. Although Diaz said he had witnessed four or five one-minute violations, his statements are ambiguous as to whether the August 15 violation of Smith was the first three-minute violation he had personally witnessed or the first that the Latin Lovers had attempted.

According to Smith, Aguirre was chief of the Latin Lovers throughout the eight months Smith was a member. Smith stated that in the prior violations he had witnessed Aguirre named the three persons who would take part; he did not hear anyone name who the three violators would be on August 15. Diaz testified that he was chief until three months before Smith's violation, but that Aguirre was chief on August 15. Diaz stated that the chief decided who would administer the one-minute violations he had observed. Dominguez testified that Diaz was chief on August 15 and that Diaz designated who the violators would be. Prado testified that Diaz was never chief during the 8 to 12 months that Prado was a member; rather, Aguirre was chief.

When Smith and Olivero encountered Aguirre, Morales, and the others near Yeoman Park, Smith was asked whether he wanted to get out of the gang. Smith replied that he did and, according to Diaz, that he wanted to move on to the Satan's Disciples. According to Olivero and Diaz, Aguirre then told Smith that he would have to take his violation to get out. Smith testified that, although he realized he had to undergo a violation in order to leave the gang, he...