People v. Velasco
| Citation | 184 Ill.App.3d 618,540 N.E.2d 521 |
| Decision Date | 08 June 1989 |
| Docket Number | No. 86-0918,86-0918 |
| Court | United States Appellate Court of Illinois |
| Parties | , 132 Ill.Dec. 781 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jesus VELASCO, Defendant-Appellant. |
Paul P. Biebel, Jr., Public Defender, James N. Perlman, Asst. Public Defender, Chicago, for defendant-appellant.
Cecil A. Partee, State's Atty. (Inge Fryklund, Lynda Peters and Gail Feiger, of counsel), Chicago, for plaintiff-appellee.
Following a jury trial conducted in his absence, defendant was found not guilty of murder, but guilty of two counts of attempted murder. He was sentenced to concurrent terms of 30 years on the attempted murder convictions. On appeal, defendant contends that (1) he was improperly tried in absentia; (2) plain error occurred when the jury was incorrectly instructed on the mental state necessary to commit attempted murder; (3) he did not receive effective assistance of counsel; and (4) improper remarks by the trial judge constituted reversible error.
At trial, Able Vega (Able) testified that at approximately 8:30 p.m. on September 29, 1984, he, Enrique Vega (Enrique), Albino Correa (Albino) and Ruben Martinez (Ruben), drove in Ruben's car from their apartment to a wedding reception in a hall near 35th Street and Western Avenue in Chicago. They left the reception at midnight and walked to the nearby vacant lot where Ruben's car was parked. When they reached the car, Ruben was next to the driver's door, Able was beside him, Albino was next to the passenger's door and Enrique was near the rear of the passenger's side of the car. As Ruben was unlocking the door, three men, followed by at least another four or five men, none of whom he had seen at the reception, approached them and said "26 Ambrose," which Able understood to mean that the men were members of the "Ambrose" gang from 26th Street. Someone then said, "You are Latin Kings," a rival street gang. Able, who formerly belonged to a different gang, responded, "We are not Latin Kings." The men nevertheless began to punch him and his companions. Two or three men struck him in the face several times but he did not fight back and could not see what was happening on the other side of the car. He then heard a few shots from the other side of the car, and as his assailants ran, he looked back and saw a man coming around the rear of the car with a gun in his hand. He identified a lineup photograph of defendant as that man. Defendant was four to five feet away when he extended his arm, pointed the gun toward him and Ruben, who was standing next to him, and fired one "hard shot" which struck Ruben in the lower left abdomen. Defendant then ran into an alley. When Able looked toward the other side of the car, he saw Albino holding his arm and Enrique lying face-up on the ground. He was unable to lift Enrique into the car because he was too heavy. Shortly thereafter, an ambulance arrived and transported Enrique, Ruben and Albino to the hospital; he accompanied the police to the police station. The following evening he viewed a lineup and identified defendant as the gunman and another man as one of the other assailants.
On cross-examination, Able stated that he and his companions did not know the persons whose wedding reception it was and had not been invited to it; they heard about it from friends and simply walked in.
Albino's testimony regarding the events prior to the shooting was substantially the same as Able's. Albino further testified that one of the men who accused them of being Latin Kings then stated that he and his group were "King Killers" and displayed the "[Latin] King Killers" hand signal. Although he and his friends denied being members of any gang, the men began punching Able. Meanwhile, eight to 10 more men approached and surrounded the car. One of them began punching him and said "we are Ambrose of 26th and don't forget that." He heard three shots from his left side toward the rear of the car, whereupon his assailant stopped hitting him. He looked toward Enrique, who On cross-examination, Albino stated that he did not have anything to drink before or at the wedding reception, and although the men who initiated the fight had also been at the reception, no one bothered or threatened him or his friends while they were there. He was unable to describe the gunman's face but recalled that he had a heavy build, was approximately 20 years old and 5'9"' or 5'10" '10" tall.
[132 Ill.Dec. 784] was standing near the rear of the car surrounded by at least six men and saw a hand six or seven feet away from him reach out with a small, dark gun and fire a shot, at which point most of the men began running away. The man with the gun, however, went around the rear of the car toward the driver's side. Albino ducked down alongside the car and then heard one last shot. After the crowd had dispersed, he stood up and saw Enrique lying on the ground. He then realized that he had also been shot. When the police arrived they took him to a hospital where he underwent surgery for injuries from the bullet which passed through his left arm and entered the left side of his chest.
Ruben's testimony was also essentially the same as Able's and Albino's regarding the events that occurred and the description of the gunman. Ruben further testified that the gunman aimed the revolver and shot him in the stomach from a distance of four or five feet; and he identified defendant from a lineup photograph as the man who shot him. Ruben was hospitalized for two or three weeks during which time he underwent two surgical procedures necessitated by the bullet wounds.
Assistant Medical Examiner Yuksel Konakci testified that his postmortem examination of Enrique revealed abrasions on the face and arms resulting from blunt trauma consistent with being punched. He concluded that Enrique died from wounds caused by a bullet which entered the left chest area and lacerated the stomach, liver, right lung and heart.
Officer Dennis Maderak, a gang crimes specialist, testified that he and his partner were riding in their squad car near 35th Street and Western Avenue when he saw a bottle being thrown and 20 to 25 people running toward a vacant lot. He then heard four shots and saw people running back toward the reception hall. They drove the squad car across the street and as they were questioning some individuals whose car they had stopped, they saw Martin Velasco, defendant's brother, driving away in a car they recognized to be defendant's. They stopped him for questioning but were interrupted by an unidentified man who said that a man with a gun was hiding in some nearby bushes. When they reached the car, he saw two men on the ground bleeding and another man leaning against the car, bleeding from his mouth. They did not see anyone with a gun. The following evening, defendant was found hiding in a friend's apartment and arrested.
Detective Thomas O'Connor testified that the following day, he recovered a blue-steel, .32 caliber revolver with a black plastic handle from an alley approximately 50 yards from the scene of the shooting. It contained two bullets and four expended cartridges. When defendant was brought in for questioning, he at first denied any involvement in the shooting, stating that he was at his girlfriend's home at the time. However, later that evening, after being advised of conflicts between his alibi and statements made by his girlfriend and her mother, he admitted the shooting and agreed to give a written statement to an assistant State's Attorney. He and some fellow officers then gave defendant some pizza and a soft drink in a cup and left the room. A few minutes later, they heard a thumping noise and, upon entering the room, saw that defendant, who was lying on the floor, had broken the glass cup and slit his left wrist with a piece of the handle. Defendant had also written messages on the wall and on a napkin stating, in substance, that he was "sorry" and wished "it never happened." They transported defendant to the hospital for treatment and then, at about 10 p.m., returned him to the police station where he made a court-reported statement to Assistant State's Attorney David Stoioff.
Stoioff testified that defendant was coherent and said he felt fine prior to making his statement. In that statement, which Stoioff read to the jury, defendant said that on the evening of the shooting, he had taken enough PCP "to get blown" and also smoked some marijuana. The combination of the drugs caused him to feel as if he were "moonwalking." He left his girlfriend's house at about 11:30 p.m. and drove to the wedding reception to find his brother, Martin, and drive him home because he knew, as a former gang member, that trouble sometimes erupted between invited and uninvited members of rival gangs at such events. When he arrived at the hall at about midnight, he noticed a crowd of people shoving, pushing and punching each other. He left his car running and double-parked on the street and ran toward the fight to look for Martin. As he was running, someone wearing a blue sweater thrust a small dark gun into his stomach area in a football-passing gesture. He juggled the gun as he continued to run but eventually gained control of it in his right hand. He considered putting the gun into his pocket but decided to carry it "in case something happened." He pushed through the crowd to the car and saw a few people standing against it. The person next to the driver's door then reached into his pocket. Not knowing whether the man was reaching for a key or a weapon, he said he didn't take any chances; he pointed the gun in the man's direction from about six feet away and started shooting "low down and level" in a "crazy wild," horizontal, swinging motion. He intended only to scare the man away, not to hurt him. He believed that he had...
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