People v. Murillo, 1-88-3653

• Decision Date: 07 February 1992
• Docket Number: No. 1-88-3653,1-88-3653
• Parties: , 167 Ill.Dec. 584 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anibal MURILLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1199

587 N.E.2d 1199

225 Ill.App.3d 286, 167 Ill.Dec. 584

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anibal MURILLO, Defendant-Appellant.

No. 1-88-3653.

Appellate Court of Illinois First District, Fifth Division.

Feb. 7, 1992.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Kathy A. Dietz, Marie Quinlivan Czech, of counsel), for plaintiff-appellee.

Anthony Pinelli and Thomas M. Breen, Martin & Breen, Chicago, for defendant-appellant.

Justice GORDON delivered the opinion of the court:

Defendant Anibal Murillo was indicted for murder and found guilty by a jury of voluntary manslaughter and sentenced to 15 years' imprisonment. He appeals, contending: (1) the State failed to prove that defendant's use of deadly force to defend himself from bodily harm and an attempted robbery was unreasonable; (2) he was prejudiced by the prosecution's use of the nickname "Dillinger" to identify defendant throughout the trial; (3) he was denied a fair trial by the prosecutor's allegations that he had created a phony defense; and (4) the imposition of the maximum 15 year sentence was an abuse of discretion. For the reasons set forth below, we affirm.

On June 22, 1987, the defendant Anibal Murillo shot and killed Roberto "Beto" Romero in a gangway between 2845 and 2847 West 21st Street in Chicago. The defendant claimed it was self-defense. The following evidence was introduced at defendant's trial for murder.

Gregory Carrizales testified that at about 11 p.m. on the night of the incident, he was on the front steps of 2855 West 21st Street in Chicago, talking with his friend Rudy Romero (the nephew of Roberto Romero), when he heard a chain link fence rattling. He described the noise as though someone was trying to jump over the fence or someone was getting pushed into it.

Turning his head to the east, he saw defendant, whom Carrizales knew only by the nickname "Dillinger", 50 to 60 feet away shooting a gun into a gangway between two houses. When Carrizales first saw him, the defendant was taking steps back out of the gangway. Defendant fired three shots, the second two in faster succession than the first. Carrizales said that the defendant was holding the gun with both arms extended forward. After firing the shots, defendant turned towards Carrizales and Rudy, and Carrizales ran into the house. When Carrizales went back outside, he saw Rudy and Nancy Godinez, who lived at 2851 West 21st Street, standing in the gangway where they had seen the shots fired. Rudy told him that his [Rudy's] uncle had been shot.

Nancy Godinez testified that she was in the kitchen of her home when she heard three shots fired, the second two closer together than the first. She looked out her front window and saw a man holding what she believed to be a gun running down the gangway to her back yard. At the time, she did not know who the man was, but noticed that he had a distinctive way of moving. She later remembered that it was the defendant, whom she knew as "Dillinger", who moved like that.

When she went outside, she saw "Beto" Romero lying in the gangway, bleeding, and calling for his mother. Godinez ran across the street and told "Beto's" mother that her son had been shot. When Godinez returned to the gangway a minute to a minute and a half later, Rudy Romero and Carrizales were there.

She noticed a lighter with a round metal tip on it by the victim's hand. (Although the lighter was evident on several police photos, it was not recovered by police evidence technicians or admitted into evidence at trial.) She also saw several tattoos on "Beto" 's arms. Two were symbols of the Mighty Kents gang, and another was a marijuana leaf. Prior to this incident, Godinez had seen the victim with a gun two or three times.

Rudy Romero, the nephew of the victim, testified that he was with Gregory Carrizales at about 10:30 p.m. on June 22, 1987, sitting on the front steps of his mother's house at 2855 West 21st Street. The victim came across the street to ask Rudy when he was coming home. Rudy saw the defendant looking out from a gangway, observing Rudy and his uncle, and then turning back into the gangway. No words were exchanged. About five minutes later, the victim pulled out some papers to roll a reefer, and walked down the street to a gangway a few houses away.

Rudy next saw the defendant come out of a vacant lot next to the house where Rudy and Carrizales were. The defendant walked towards where the victim was. Twenty or thirty seconds later Rudy heard a gunshot, and when he turned in the direction of the noise, he saw the defendant pointing the gun into the gangway and firing. Rudy could not see his uncle at this time. Prior to hearing the gunshots, Rudy heard the sound of a chain link fence.

When Rudy arrived at the gangway where his uncle was lying, Nancy Godinez was there. Rudy stayed with his uncle until the police arrived, 20 to 25 minutes later. He told the police that "Dillinger", the only name by which he knew the defendant, had shot his uncle.

At the time of trial, Rudy was living at the Audy home because of a pending robbery charge against him. Approximately four months prior to trial in the instant case, Rudy was arrested on a homicide charge, but the homicide charges were dropped when he agreed to turn State's evidence in that case.

Officer Frank Luera of the Chicago police department testified that he arrested defendant at defendant's home a block away from the incident less than an hour after the shooting. Another officer, Thomas Sherry, testified that defendant told the police he had no knowledge of the shooting, that he did not participate in it, and that he was playing basketball with a friend at a playground at the time of the shooting. Shortly after arriving home, the police arrived and arrested him. Defendant also told the police that some days before the shooting, "Beto" Romero had taken a gold chain or medallion from him.

Thaddeus Melko, an evidence technician with the Chicago police department, testified that he was called to the scene of the shooting shortly after midnight. Melko searched the victim and the scene for possible evidence. He did not find any guns or other weapons in the victim's possession or anywhere in the adjacent area. At the police station, Melko performed a gunshot residue (GSR) test on defendant, which was later analyzed by Dr. Krishen Kaishtha.

Dr. Krishen Kaishtha testified as a qualified expert that on May 19, 1988, he received a GSR kit for testing. The results of that test were consistent with someone firing or handling a weapon with his right hand while holding his left palm against the weapon.

Dr. Barry Lifschultz, a forensic pathologist, testified that an autopsy of the victim revealed that he had been shot three times. One bullet entered through the back of the right shoulder, proceeded through the muscles of the upper back, and was recovered beneath the skin at the back of the left shoulder. Another bullet perforated the skin of the middle of the right side of the victim's back, penetrated and perforated the heart and left lung, and was recovered from beneath the skin of the left side of his chest. The course of this bullet was from back to front, right to left, and upwards. The third bullet (although not necessarily third in time) perforated the skin of the left lower back, perforated the liver and right lung, and was recovered beneath the skin of the right side of the chest. The course of this bullet was from back to front, left to right, and upwards. There was no evidence of close range firing on any of the wounds. The autopsy also revealed that the victim had morphine in his blood, in an amount consistent with having injected or ingested heroin some hours before his death. The victim was 6 feet tall and weighed 280 pounds.

Four witnesses were presented by the defendant at trial who testified to prior violent encounters with the victim. Thomas Gamino testified that the victim fired four shots at him, hitting him three times in the leg, after accusing Gamino of being disrespectful. The victim pled guilty to a charge of aggravated battery. Sergeant Thomas Fuller of the Chicago police department testified that he was approached by the victim while on patrol in his police car. The victim attempted to strike the sergeant through the car window, and struggled when Fuller arrested him. The victim pled guilty to a charge of battery. Alfredo Garcia testified that he owned a building in the neighborhood. When he asked the victim to stop threatening his tenants, the victim showed a gun and started hitting Garcia. Adolpho Leon Ramirez testified that the victim and several of his friends staged a fake fight in a restaurant which he (Ramirez) owned, resulting in $200 to $300 damage, after Ramirez refused to give them free food in return for protection. The victim pled guilty to a charge of criminal damage to property.

The defendant testified at his trial. He stated that approximately a week before the incident, the victim approached him and asked him for money. Defendant told him that he had none. Defendant noticed a pistol "right on him in his waistline." The victim pushed the defendant against a brick fence and took his gold St. Ignacius medal and his wallet and money. Immediately thereafter, defendant stopped a passing paddy wagon, and told the police what had happened. The victim told the police that he was just playing around, that defendant overreacted, and then returned the wallet and money. Neither the pistol nor the medallion was found.

Following that event, defendant bought a gun, even though he had been previously given a conditional discharge for a robbery conviction and knew that carrying a weapon was a violation of the terms of his discharge. Defendant said that he feared for his safety and of being robbed again.

Continuing his testimony, defendant stated that on June 22, 1987, he was walking down 21st Street towards the Godinez house on...