People v. Cosme

617 N.E.2d 364, 247 Ill. App. 3d 420, 187 Ill. Dec. 156, 1993 Ill. App. LEXIS 758
Appellate Court of Illinois·Decided May 28, 1993·No. 1-89-3131·Published·Cited by 19 cases

Opinion

PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Defendant, Horatio Cosme, was arrested and charged with first degree murder along with his codefendants, Felipe Rosales, Danny Leal, Rigoberto Moreno and Manuel Velasquez, in connection with the death of Michael Marrone. After obtaining a severance from his codefendants, Cosme was convicted of first degree murder and sentenced to 50 years in the Illinois Department of Corrections. On appeal, defendant argues that he was not proved guilty beyond a reasonable doubt and that he was denied a fair trial because he was prejudiced by the following: (1) the admission into evidence of a previous altercation between the victim and one of the severed codefendants; (2) the submission of jail intake photographs of the severed codefendants to the jury during its deliberation; (3) the testimony of the investigating officer which implied that the severed codefendants had implicated defendant; (4) and comments made by the prosecution in its closing argument. Defendant also argues that his sentence was excessive. For the reasons set forth below, we affirm.

Facts

Defendant was indicted for first degree murder in connection with the death of 17-year-old Michael Marrone. Marrone, a member of the C-Notes street gang, was killed while sitting in the back seat of a car which was surrounded by members of a rival street gang, the Spanish Cobras. The Cobras were pelting the car with bottles and bricks and hitting it with baseball bats when the defendant, an admitted Spanish Cobra, allegedly ran up to the car and fired several shots into its passenger side killing Marrone. At trial, the following testimony was heard.

Paul Garza testified that in the early morning hours of January 14, 1989, he and the victim went out to buy some beer with three of their friends. Garza stated that as they were driving, they were curbed by a car from which four individuals emerged and showed Garza and his friends a five-star badge and a gun. Garza testified that the individuals then searched him and his friends and began hitting them. He stated that the individuals then threw the keys to the Garza car into its trunk and locked it.

Garza testified that he and his friends pried open the trunk, retrieved the keys and started the car. According to Garza, two of his friends were looking in the immediate area of the car for one of their wallets when a different group of individuals approached the car. At this time, Marrone was sitting in the back seat of the car on the passenger side; Garza was sitting next to him in the middle of the back seat. Garza stated that one of the Cobras, later identified as Felipe Rosales, went up to the passenger side of the car and told Marrone that he knew him to be a C-Note. Garza testified that Rosales then started hitting the car with a baseball bat and the others also began beating on the car. Garza stated that one of the severed codefendants, later identified as Danny Leal, smashed the front windshield of the car. They were also throwing bricks and bottles at the car. Garza testified that he noticed that Marrone was shot when they took off and Marrone fell on him, but that he did not hear the shot.

Garza stated that he was a member of the C-Notes and identified Rosales as a member of a rival gang, the Spanish Cobras. Garza identified a photograph of Rosales as the individual who first accused Marrone of being a C-Note and as the one who was hitting the car with the bat. Garza also identified a photograph of another Spanish Cobra, Danny Leal, as the one who smashed the front windshield at the time in question. Over objection, Garza testified that during the summer of 1988, Marrone and Felipe Rosales got into a fight at the Oak Street Beach. On redirect, Garza stated that he did not see a gun in the possession of either Leal or Rosales.

Juan Zapata testified that he was a Spanish Cobra for about one year at the time of trial. He identified defendant and his severed co-defendants, Felipe Rosales, Danny Leal, Rigoberto Moreno and Manuel Velasquez, as members of the Spanish Cobras and stated that they were all “friends of each other.” He had known defendant for about four months at the time of the shooting through his membership in the Spanish Cobras.

Zapata stated that on the night of January 13, 1989, he was at the El Domino bar playing pool with Rosales, Leal, Moreno, and Velasquez, when defendant entered the bar and said that C-Notes were in the neighborhood.

Zapata stated that everyone ran outside and defendant told him that he was going to get a gun. According to Zapata, defendant ran towards Ashland Avenue and the rest of the group proceeded to Erie Street where the C-Notes were curbed in their car.

Zapata stated that when they arrived on Erie Street they saw a car in the middle of that street and started to throw bricks at it. He stated that Rosales was hitting the car with a bat and Leal was hitting it with a stick. Defendant was six feet away from him when he came up, “cracked the gun down to see if it had any bullets, *** put it back together, and ran towards the car.” Defendant then ran to the passenger side of the car and fired the gun twice inside the car.

Zapata said that he did not go to the police because he was scared of the defendant. He testified that after the police picked him up, he told them what happened and gave them a handwritten statement. He subsequently testified before the grand jury and related the events of that night. He stated that his trial testimony was consistent with what he told the police and what he told the grand jury. He admitted that the day before trial he told the public defender “a different story,” but explained that he did so because he was afraid of defendant.

Zapata identified photographs of Rosales, Leal, Velasquez, Moreno and of the El Domino bar. The picture of the El Domino bar showed that “Spanish Cobras” and markings signifying C-Note killers had been spray painted on the side of the building.

On cross-examination, Zapata admitted that he was also known as Omar Santiago. He said that he was six feet away from the car when the shooting took place. He admitted that a week before trial he told an investigator from the public defender’s office that he was a block away from the car when the shooting occurred. He also admitted that the day before he testified at trial, he told defendant’s public defender that his trial testimony was going to be the same as his testimony before the grand jury and that he had lied when testifying before the grand jury. He explained that he told the public defender and his investigator that he lied because of his fear of the defendant.

Rosalio Najera testified for the State that on the night in question he was with Rigoberto Moreno when he saw the car in which the victim, Marrone, and his companions were riding being curbed by a second car. He stated that the occupants of the second car proceeded to beat up Marrone and his companions. After recognizing that Marrone and his companions were C-Notes, Najera and Moreno ran to get the Spanish Cobras.

Najera stated that he and Moreno went to the El Domino bar, where they saw defendant standing outside. Moreno talked to defendant and then defendant and Moreno went into the bar.

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People v. Cosme, 617 N.E.2d 364, 247 Ill. App. 3d 420, 187 Ill. Dec. 156, 1993 Ill. App. LEXIS 758 (Ill. Ct. App. 1993).

617 N.E.2d 364 (People v. Cosme) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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