People v. Velez

• Decision Date: 30 March 1984
• Docket Number: No. 82-1400,82-1400
• Parties: , 78 Ill.Dec. 627 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Julio VELEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 746

462 N.E.2d 746

123 Ill.App.3d 210, 78 Ill.Dec. 627

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Julio VELEZ, Defendant-Appellant.

No. 82-1400.

Appellate Court of Illinois First District, First Division.

March 30, 1984.

Steven Clark, Jean E. McEwen, Schiff, Hardin & Waite, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., Chicago (Michael E. Shabat, James S. Veldman, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

BUCKLEY, Presiding Justice:

Following a bench trial, defendant Julio Velez was found guilty of murder (Ill.Rev.Stat.1981, ch. 38, par. 9-1), and sentenced to 40 years in prison. On appeal, defendant raises the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the State's failure to turn over certain information prior to trial denied him due process of law; and (3) whether he knowingly and intelligently waived his right to a jury trial. For the reasons set forth below, we affirm defendant's conviction.

The charge against defendant arose out of the shooting death of Thaddeus Papierz on June 21, 1981, at a Polish army veteran's home in Chicago. The victim worked and resided at the home. At trial, the State presented several witnesses, among whom was 78-year-old Tadeusz Karwatowicz, a resident and employee of the veteran's home. Karwatowicz testified that on the night of the incident a party was held on the first floor of the home. Shortly after midnight, he was on the second floor of the home watching the stairwell, while the victim was attending to his duties on the first floor. Karwatowicz then saw two young men walk up the stairs to the second floor. Due to poor eyesight, he could not positively identify either of the men at trial, but was able to describe them. He stated that the taller of the two men was a Latino, had dark hair about six inches long, and wore a red bandana on his head.

Karwatowicz further testified that the two men looked inside the washroom on the second floor, causing the victim to walk upstairs from the first floor and ask what they wanted. Although Karwatowicz was unable to follow much of the conversation, he stated the victim apparently asked the two men to leave the premises. Karwatowicz testified the victim then turned to him and requested he unlock the office on the second floor and call the police. As he started to do so, a struggle began between the victim and the taller man. He heard three shots and saw the victim fall to the floor. Karwatowicz could not determine which of the intruders, who were close to each other, actually fired the shots. The two men then fled.

Ramon Lopez, who was 11 years old at the time of the incident, testified that he attended the party at the veteran's home on the night of the incident. During the course of the evening he went outside to his father's truck to listen to music and later reentered the home just as the victim was fatally shot. He observed three men, two at the top of the stairs and the third on the stairs, and saw one of the men at the top of the stairs fire a gun. He stated that the man who fired the gun had a dark complexion, dark hair and wore a red bandana around his head and a sleeveless sweater. He noticed a tattoo on the upper part of the arm in which he held the gun. Two or three shots were fired, after which he ran.

Pedro Renta, Jr. testified that on the night of the incident he and his wife were sitting on the front porch of their home with two men known to him as "Kong" and "Fat Boy." He identified Kong as the defendant, but did not know the real name of Fat Boy. Subsequently, a person unknown to Renta approached the porch looking for a man called "Pappo" who had been with Renta earlier that evening. Renta testified he went to the veteran's home with defendant and Fat Boy to look for Pappo. The three men went inside the home and proceeded to the second floor, where they used a washroom. Defendant then remained on the second floor while Renta and Fat Boy walked down to the first floor. Renta stated that on their way downstairs they were passed by the victim who was on his way up to the second floor. The victim approached defendant and said something to him which he could not hear. The victim then spoke with another man and handed him some keys. As the second man went to open a door, defendant produced a gun and held it to the victim's temple. The victim grabbed defendant's right wrist and a struggle for the gun began. Defendant pushed the victim and then fired four shots at him. Renta and Fat Boy ran out of the building, followed by defendant.

Renta additionally testified that upon leaving the home, defendant handed him the gun, wrapped in a red bandana, and told him to hide both items. He initially hid the gun and bandana in his home, and later in an alley. Renta stated that when police subsequently came to his home he showed them where he hid the two items. He identified defendant as the person who fired the shots, both from a photographic array at the police station and at a preliminary hearing. Renta testified that on the night the shooting occurred, defendant wore a sleeveless Tee-shirt and had tattoos on the upper portion of both arms; on his left arm was a crown indicating a gang known as the Imperial Gangsters, while on his right arm appeared the name "Kong." Renta stated that at the time of the incident defendant's hair was about shoulder length, while at the preliminary hearing it was cut much shorter. At the time of the shooting, he had known defendant for approximately two weeks.

Chicago police Officer Jose Martinez testified that on July 26, 1981, an unidentified woman telephoned and spoke with him and his partner. Martinez was not permitted to relate the content of this conversation due to a defense objection which was sustained. Martinez stated that following this conversation, officers obtained an arrest warrant for defendant and proceeded to his home where defendant was found hiding under a bed and was thereafter arrested.

Defendant, at trial, exhibited his arms and tattoos to the trial judge. Additional evidence in the State's case was received by stipulation. It was stipulated that the cause of death was multiple gunshot wounds and that the medical examiner had recovered three .32 calibre bullets from the body of the victim. These bullets were taken to the police laboratory, as was another spent .32 calibre bullet recovered from the scene of the shooting. It was determined that all four bullets were fired from the .32 Colt revolver that defendant gave to Renta. No fingerprints were found on the gun.

Also received into evidence was an oral statement defendant gave police following his arrest in which he admitted going to the veteran's home on the night of the incident, but denied shooting the victim. In the statement, defendant indicated that only Renta and Fat Boy walked up to the second floor of the home, and that he remained on the first floor and ran when he heard shots. Defendant further stated that although he had a gun with him earlier that day, he did not have it when he went to the veteran's home at night.

Based on the foregoing evidence, the trial court found defendant guilty of murder. Defendant's motion for a new trial was denied.

I.

On appeal, defendant initially urges that he was not proved guilty beyond a reasonable doubt. Specifically, he contends the trial court erred in not discounting the testimony of Pedro Renta, Jr. because Renta was an accomplice and his testimony was impeached by other witnesses. We reject this argument.

It is well established that in a bench trial the credibility of witnesses and weight to be afforded their testimony are determined by the trier of fact since he is in a position to observe the witnesses. (People v. Son (1982), 111 Ill.App.3d 273, 279, 66 Ill.Dec. 952, 443 N.E.2d 1115; People v. White (1978), 69 Ill.App.3d 830, 840, 25 Ill.Dec. 852, 387 N.E.2d 728, cert. denied (1980), 444 U.S. 1090, 100 S.Ct. 1054, 62 L.Ed.2d 778.) The finding of the trial court will not be disturbed on review unless the evidence is so improbable as to raise a reasonable doubt of defendant's guilt. (People v. Berger (1982), 109 Ill.App.3d 1054, 1069, 65 Ill.Dec. 600, 441 N.E.2d 915.) The testimony of even one witness, if positive and credible, is sufficient to convict, even though it is contradicted by the accused. People v. Jones (1976), 42 Ill.App.3d 353, 362, 1 Ill.Dec. 114, 356 N.E.2d 114.

In the case at bar, the evidence is not so improbable as to raise a reasonable doubt of defendant's guilt. First, the record establishes that Renta testified he saw defendant fatally shoot the victim and he provided a description of defendant's physical characteristics. He positively identified defendant as the killer at trial, from a photographic array at the police station and at a preliminary hearing. Renta's testimony received corroboration from witnesses Ramon Lopez and Tadeusz Karwatowicz. For example, a tattoo described by Renta was also seen by Lopez and was shown to exist when defendant exhibited his tattoos to the court. Lopez further corroborated Renta's testimony that defendant was on the second floor, that another man was near him on the stairs and that a third man was further down the stairway. Both Lopez and Karwatowicz also recalled observing the red bandana described by Renta.

We note that defendant cites People v. Wilson (1977), 66 Ill.2d 346, 5 Ill.Dec. 820, 362 N.E.2d 291, a case involving a completely uncorroborated accomplice witness. Defendant's reliance on Wilson is misplaced, first because, as established above, Renta's testimony was not entirely uncorroborated. Secondly, contrary to defendant's assertion, the evidence does not establish that Renta was an accomplice; there are no facts indicating he did anything before or during the shooting to aid or abet defendant in the act of killing the victim. (Ill.Rev.Stat.1981, ch. 38, pars....