People v. Pulgar

• Decision Date: 21 June 2001
• Docket Number: No. 1-99-1779.,1-99-1779.
• Citation: 256 Ill.Dec. 705,752 N.E.2d 585,323 Ill. App.3d 1001
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Herberto PULGAR, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

752 N.E.2d 585

323 Ill. App.3d 1001

256 Ill.Dec. 705

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Herberto PULGAR, Defendant-Appellant.

No. 1-99-1779.

Appellate Court of Illinois, First District, Fourth Division.

June 21, 2001.

Gwendolyn Anderson, of Chicago & of counsel, Michael J. Pelletier, Deputy Defender, with Michael C. Bennett, Assistant Appellate Defender, of Chicago and counsel, for Appellant.

Richard J. Daley Ctr., #309—Richard A. Devine, State's Attorney, Renee Goldfarb, Michele Grimaldi Stein and Alan J. Spellberg, Assistant State's Attorneys, of counsel, for Appellee.

Justice HOFFMAN delivered the opinion of the court:

Following a bench trial, the defendant, Herberto Pulgar, was convicted of aggravated battery (720 ILCS 5/12-4 (West 1996)) and the commission of a hate crime (720 ILCS 5/12-7.1 (West 1996)). He was sentenced to an extended term of nine years' imprisonment for aggravated battery and three years' imprisonment for the hate crime, with the sentences to run consecutively. The defendant filed the instant appeal, contending that: 1) his due process rights were violated when the State obtained an indictment against him for a hate crime after the trial court, at a preliminary hearing, found insufficient evidence to establish probable cause for the charge; 2) the State presented perjured testimony to the grand jury; 3) his conviction of both aggravated battery and a hate crime violates the "one-act-one-crime" doctrine; 4) the State failed to prove him guilty of either offense beyond a reasonable doubt; 5) the sentence imposed by the trial court constituted an abuse of discretion; and 6) his attorney was ineffective for failing to object to the admission of hearsay testimony. For the reasons which follow, we affirm the defendant's conviction and sentence for aggravated battery and vacate his conviction and sentence for the commission of a hate crime.

On the morning of February 2, 1997, Russell Johnson fled on foot from the defendant and a second, unidentified man who had directed racial remarks at him. The men pursued Johnson in a vehicle. The defendant was driving the vehicle when it struck Johnson, who suffered a broken leg. That evening, the defendant was arrested and charged with aggravated battery and the commission of a hate crime.

At the defendant's preliminary hearing, Johnson testified, inter alia, that it was the vehicle's passenger that had yelled racial slurs at him. After the preliminary hearing, the trial court found probable cause for the aggravated battery charge placed against the defendant but found insufficient evidence to establish probable cause to charge him with a hate crime. Subsequently, the grand jury returned a five-count indictment against the defendant, charging him with one count of attempt murder, three counts of aggravated battery, and one count of hate crime.

The defendant filed a motion to dismiss the indictment, in which he argued that the State procured the indictment through the use of perjured testimony. The trial court denied the motion. Thereafter, the defendant waived his right to a jury trial, and a bench trial was conducted on the charges set forth in the indictment. We will set forth only that evidence introduced at trial which is relevant to our disposition of the issues raised in this appeal.

At approximately 5:30 a.m. on February 2, 1997, Johnson and Lylani Roldan were standing at a bus stop located on the corner of Belmont and Cicero Avenues in Chicago when a Chevrolet Blazer passed them going westbound. According to Roldan, the driver of the vehicle, whom she later identified as the defendant, yelled at her and Johnson, but she could not hear his exact words. She testified that the vehicle returned approximately five minutes later and stopped directly in front of the bus stop where she and Johnson were standing. Roldan stated that the passenger rolled down his window and said to Johnson, "nigger come here." When she asked Johnson whether he knew this individual, the passenger said "shut up bitch." Roldan testified that she then asked the passenger if he knew her, whereupon he said "shut up you spic bitch" and asked "why are you with that nigger?" The passenger then spit at Johnson. As the vehicle began to pull away, Johnson spit back at the passenger and threw a cup at the vehicle. According to Roldan, the defendant stopped the vehicle, and both he and the passenger got out. Roldan then told Johnson that the passenger had a gun, which caused him to begin running southbound on Cicero Avenue. As they approached, the defendant threw a garbage can at Roldan and the passenger threw a bottle at her. They then returned to their vehicle and pursued Johnson down Cicero Avenue, the defendant again driving.

According to Roldan, Johnson was running in the parking lane, three or four feet from the curb. As Johnson began to cross the street, the defendant accelerated. The defendant's vehicle eventually blocked Roldan's view of Johnson. She testified, however, that she saw Johnson fly into the air and land near the curb. Roldan stated that she did not see the brake lights on the defendant's vehicle activate prior to the time that she saw Johnson fly into the air, nor did she see the vehicle decelerate. Roldan spoke to police officers both at the scene of the occurrence and later at the police station. She identified the defendant both from a photographic array and at a line-up.

On cross-examination, Roldan denied telling Steve DeJesus, an investigator engaged by the defendant, that the passenger in the defendant's vehicle only gave her dirty looks or that the defendant swerved before he hit Johnson. She also denied telling the police that it was the passenger that threw a garbage can at her.

Johnson's testimony corroborated that of Roldan in most respects. According to Johnson, however, when the vehicle which struck him passed the first time, the passenger yelled "nigger, I'll be back." He testified that, as he was running southbound on Cicero Avenue, he heard the vehicle accelerate and he froze. Johnson stated that the vehicle came "dead at" him and hit him "head on." He could not, however, identify the defendant. Johnson suffered a broken leg, abrasions, and bruises when he was hit. He was hospitalized for one week.

On cross-examination, Johnson denied telling the police that he could not hear what the passenger said when the vehicle first passed him and Roldan. He again admitted that it was the passenger in the vehicle, not the driver, who yelled at him.

After the trial court denied the defendant's motion for a directed judgment of acquittal, he presented his case-in-chief. The defendant's first witness was his investigator, DeJesus, who testified that he interviewed Roldan in September of 1998. According to DeJesus, Roldan told him that, when the defendant's vehicle first passed, the defendant and the passenger only gave her and Johnson dirty looks and that the defendant attempted to swerve to avoid hitting Johnson with his vehicle.

The defendant also presented the testimony of Chicago police detectives Louis Rabbit and Michael Mazupappa, two of the investigating officers. Rabbit testified that Roldan told him that, when she first saw the defendant's vehicle, the vehicle made a U-turn and stopped in front of her and Johnson. According to Rabbit, Roldan never told him that Johnson threw anything at the defendant's vehicle. Both Detectives Rabbit and Mazupappa testified that Roldan stated that it was the passenger who threw a garbage can at her. Mazupappa also testified that Johnson told him that he could not hear what the passenger said the first time that the defendant's vehicle passed by him. After the officers testified, the defense rested.

Before rendering its judgment, the trial court stated that it did not believe that Roldan told DeJesus that the defendant attempted to avoid hitting Johnson. The trial court then acquitted the defendant of attempt murder but found him guilty of aggravated battery and a hate crime. It denied the defendant's subsequent motion for a new trial and imposed consecutive sentences of nine years in prison for aggravated battery and three years in prison for the hate crime.

Before addressing the substantive issues raised by this appeal, we believe that certain procedural matters which arose after the filing of the appellant's brief are worthy of note. The State filed its initial brief in this case on December 13, 2000. On January 11, 2001, the defendant filed a motion for an extension of time to file a reply brief. On January 18, 2001, we granted that motion and extended the time for the filing of his reply brief to March 1, 2001.

On January 19, 2001, the Illinois Supreme Court entered an order suspending the defendant's attorney, Gwendolyn Dale Anderson, from the practice of law for a period of 18 months. In re: Gwendolyn Dale Anderson, M.R. 17157. On January 25, 2001, this court, unaware of Ms. Anderson's suspension, sua sponte entered an order directing the defendant to address, in his reply brief due on March 1, 2001, the applicability of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the consecutive sentences imposed upon him. In that same order, we directed the State to file a supplemental brief addressing the same issue by March 1, 2001. Subsequent to the entry of that order, we scheduled this matter for oral argument on March 8, 2001.

The State filed its supplemental brief on February 22, 2001. No reply brief was filed on behalf of the defendant prior to the oral argument scheduled for March 8, 2001. When this case was called for argument on that date, no one appeared in court to represent the defendant.

Immediately subsequent to the cancelled argument, this court discovered for the first time that Ms. Anderson had been suspended from the practice of law. As a consequence, we entered an order on ...