People v. Ortiz

• Court: Appellate Court of Illinois
• Writing for the Court: HOPF
• Citation: People v. Ortiz, 421 N.E.2d 556, 96 Ill.App.3d 497, 51 Ill.Dec. 921 (Ill. App. 1981)
• Decision Date: 19 May 1981
• Docket Number: No. 80-212,80-212
• Parties: , 51 Ill.Dec. 921 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Estabon ORTIZ, Defendant-Appellant.

Page 556

421 N.E.2d 556

96 Ill.App.3d 497, 51 Ill.Dec. 921

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Estabon ORTIZ, Defendant-Appellant.

No. 80-212.

Appellate Court of Illinois, Second District.

May 19, 1981.

Geraldine Borja, Maywood, for defendant-appellant.

Eugene L. Stockton, Asst. State's Atty., Dixon, Phyllis J. Perko, Martin P. Moltz, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

HOPF, Justice:

Defendant was convicted of home invasion (Ill.Rev.Stat., 1979, ch. 38, par. 12-11) in a bench trial and sentenced to ten years in the penitentiary. He raises the following issues on appeal: (1) he was not proved guilty beyond a reasonable doubt; (2) he did not understandingly waive his right to trial by jury; (3) he did not receive the effective assistance of counsel at trial; and (4) the trial court failed to consider mitigating circumstances and the rehabilitative potential of defendant in arriving at the ten year sentence. We affirm.

The State presented four eyewitnesses to the offense. Bobbie Wyatt testified that in the early morning of September 25, 1979, defendant and a companion followed her into her apartment. Defendant had visited her on occasion and the two were sexually intimate. After a few minutes Bobbie told the pair to leave and pushed them out the door. Defendant returned several minutes later and indicated that he wished to have sexual intercourse with Bobbie. Despite Bobbie's refusals, defendant remained outside the door and placed his hand in his pocket. One of the other residents of the apartment shouted that defendant had a gun. Bobbie then ducked and heard what sounded like a crash or a gun shot. She then saw defendant unlock the door by placing his hand through the broken glass in the door. Defendant had placed one foot in the doorway and was attempting to push his way into the apartment when Allen Bass, a resident of the apartment, pushed the defendant out the door and fought with him outside. After the fight Bobbie observed defendant enter the apartment and take a record player which, she said, he had given her children as a gift. She testified that she had had three beers during the course of the day preceding the event and that within a few hours before the incident she had shared a marijuana cigarette. She also testified that she was on probation for a forgery conviction.

Judy Mowery, who was in an automobile parked next to Bobbie Wyatt's apartment building, testified next. She testified that she saw defendant, gun in hand, break in the door window of Bobbie's apartment and fire three shots. Prior to breaking the glass he shouted that he wanted his record player. Ms. Mowery further testified that after defendant broke the glass he entered the apartment momentarily. He immediately came back outside with Allen Bass. The two were fighting. During the course of the fight, three shots were fired outside the apartment.

Allen Bass testified that Bobbie Wyatt partially opened the apartment door and the defendant attempted to force his way in. Bass tried to help Bobbie close the door, but was unsuccessful. Thereafter, Bass hit the defendant several times in the face and defendant then pulled out a gun. Defendant struck his arm through the door, pointed the gun and stated, "I'm going to kill you." Bass then pushed the defendant out the door. A fight ensued, and defendant fired three or four shots. Bass ran back to the apartment and into the bedroom. He then heard two shots fired and the sound of glass breaking. He left the bedroom and observed a man, whom he believed to be defendant, enter the apartment and take the record player.

Vickie Bolton, also a resident of the apartment, testified that she heard Bobbie shouting for help and then observed the defendant outside the front door holding a gun. A shot was fired through the glass in the front door and defendant then broke the glass with his hands. Defendant reached in through the glass, unlocked the door, placed half of his body in the doorway and fired four or five shots inside the apartment. The defendant was shouting, "I'm going to kill you." The witness heard two shots fired outside the apartment and then observed defendant come back inside and take the record player. Ms. Bolton stated that she had consumed one beer several hours before the incident. At the close of her testimony the State informed the court that the witness had a prior misdemeanor theft conviction.

Detective Short of the Dixon police department testified that, upon arriving at the scene of the incident, he had observed, among other things, blood all over the inside of the apartment, and what appeared to be bullet holes in the front door glass, front door curtain, ceiling, and far wall. The detective recovered four spent cartridges and two live .25 caliber rounds from the scene. He testified that one of the cartridges along with the two live rounds were recovered from inside the apartment and that another of the spent cartridges was found in the doorway. He stated that the spent cartridges were later determined by the FBI laboratory to have been fired from defendant's gun.

Detective Short further testified that he questioned defendant through an interpreter.

The interpreter testified that when questioned, defendant stated he got into an argument with Allen Bass. Bass pulled his hair and threw him against the door, breaking the glass. Defendant then fired his gun into the ground and in the air to scare Bass. The witness stated that defendant specifically said he did not fire into the house.

Two Rochelle city police officers testified that they met defendant in the Rochelle Hospital emergency room. Defendant had gone to the hospital to have his arm treated which had been badly cut during the incident. The injury had not yet been treated by a doctor when they questioned him. One of the officers read defendant his Miranda rights. (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). Defendant indicated that he understood, and would waive, those rights. The officers then asked defendant whether he possessed a gun. Defendant replied in the negative but gave the officers permission to search his car. A .25 caliber semiautomatic pistol was later recovered from the car. The officers questioned defendant in English. Defendant replied in broken but intelligible English. He told the officers that once inside Bobby Wyatt's apartment he fought with someone. He grabbed his stereo and started to run toward the door when someone pushed him into the door and fired shots at him.

Defendant testified in his own behalf. He stated that as he was leaving the apartment he decided to retrieve his record player. The door was still open and as he attempted to reenter the apartment, Bobbie Wyatt tried to close the door on him. At that point, Allen Bass grabbed the defendant by the hair. Defendant testified that he tried to get away from Bass and fell on the ground. Bass kicked the defendant twice and defendant then pulled a gun from his pocket and fired off to the side. After Bass ran back to the apartment, defendant returned to the apartment and retrieved his record player.

The offense of home invasion is defined as follows:

"Home Invasion. (a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and

(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or

(2) Intentionally causes any injury to any person or persons within such dwelling place.

* * * "

Ill.Rev.Stat., 1979, ch. 38, par. 12-11.

Defendant argues that the State failed to prove the elements of this offense. He contends that Bobbie Wyatt and Vickie Bolton were not credible witnesses and that their testimony conflicted with that of Allen Bass. Defendant charges that Wyatt's and Bolton's perception of the event was affected by the intoxicants they had consumed prior to the incident. He also contends that their credibility must be judged in light of their previous criminal convictions. He argues further that in contrast to these witnesses' testimony Allen Bass's testimony supports his account of the incident.

It is well established that in a criminal bench trial it is for the trial court to hear testimony and determine the credibility of witnesses. (People v. Eichelberger (1980), 81 Ill.App.3d 1012, 37 Ill.Dec. 115, 401 N.E.2d 1208). Discrepancies and inconsistencies in the testimony affect only the weight to be given that testimony (People v. Cosey (1980), 82 Ill.App.3d 968, 38 Ill.Dec. 425, 403 N.E.2d 656) and where the evidence is conflicting it is the duty of the trier of fact to resolve the conflict and determine the credibility of the witnesses and the weight to be given their testimony. (People v. Cages (1980), 82 Ill.App.3d 900, 38 Ill.Dec. 334, 403 N.E.2d 565; People v. Smith (1980), 81 Ill.App.3d 764, 36 Ill.Dec. 879, 401 N.E.2d 1017.) Under such circumstances the appellate court will not substitute its judgment for the trier of fact. (People v. Cages.) Further, whether one acted in self-defense is a question to be determined by a trier of fact (People v. Walker (1978), 58 Ill.App.3d 535, 16 Ill.Dec. 105, 374 N.E.2d 880) and the trier of fact is not obliged to accept as true testimony concerning self-defense presented by the accused. People v. Harling (1975), 29 Ill.App.3d 1053, 331 N.E.2d 653.

In stating his findings the trial judge noted that prior to the incident Bobbie Wyatt and Vickie Bolton had consumed small amounts of beer and Bobbie Wyatt had smoked part of a marijuana cigarette but stated that there was no evidence that either witness was intoxicated or under the influence of drugs. Although our review of the record...