People v. Malave

595 N.E.2d 117, 230 Ill. App. 3d 556, 172 Ill. Dec. 54, 1992 Ill. App. LEXIS 831
CourtAppellate Court of Illinois
DecidedMay 28, 1992
Docket1-89-3398
StatusPublished
Cited by8 cases

This text of 595 N.E.2d 117 (People v. Malave) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Malave, 595 N.E.2d 117, 230 Ill. App. 3d 556, 172 Ill. Dec. 54, 1992 Ill. App. LEXIS 831 (Ill. Ct. App. 1992).

Opinion

JUSTICE LINN

delivered the opinion of the court:

Defendant, Jose Malave, was convicted of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — l(aXl)) following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for a term of 50 years.

Defendant appeals, contending he was denied a fair trial because: (1) the trial judge admitted into evidence certain hearsay statements, and (2) the prosecutor made inflammatory remarks during the State’s case and closing argument. Defendant also contends (3) the trial judge erred in determining the sentence.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. Defendant was indicted on three counts of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — l(aXl) through (aX3)), one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2), and one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A).

The State’s case at trial was essentially as follows. Humboldt Park is bordered by North Avenue, Division Street, California and Kedzie Avenues in Chicago. Humboldt Boulevard bisects the park. Two belligerent groups of street gangs occupy the park. The “People,” which includes the Latin Kings, occupies the west side of the park; the “Folks,” which includes the Latin Jivers and several other street gangs, occupies the east side of the park. Defendant was a member of the Latin Jivers, affiliated with the “Folks.” The victim, Jorge Sanchez, also known as Victor, was a member of the Latin Kings, affiliated with the “People.”

On the night of June 26, 1988, Nathan Iverson and Mario Munoz were together in Humboldt Park. They saw the victim, on the west side of Humboldt Boulevard, shouting gang slogans and curses at the “Folks” on the east side of the street. The “Folks” responded by shouting insults at the victim. Later that night, Munoz was in the west side of the park with the victim’s cousin Roberto. The victim approached them and borrowed Roberto’s bicycle. The victim rode the bicycle toward the boathouse on the east side of Humboldt Boulevard, where the “Folks” gathered.

The victim stood near the boathouse. A man, wearing black clothing, approached the victim from behind, tapped him on the shoulder, and shot the victim twice. The shooter ran from the scene; the victim began to run but fell to the ground. The victim died a short time later as the result of the gunshot wounds.

Chicago police officer Michael Conley and his partner were patrolling the area at approximately 7:45 p.m. that night. At that time they heard a police radio bulletin of a shooting in the park. They immediately went to the scene, where they found the victim bleeding from two bullet wounds. Onlookers shouted that the victim was a Latin King and gave the officers a tip that the shooter wore black clothing. The officers searched the area and saw defendant, dressed completely in black, riding a motorscooter. They stopped defendant and retrieved a witness from the crime scene to identify defendant as the shooter. However, the witness could not identify defendant, so the officers released him.

On June 28, 1988, Chicago police officer Clyde Raymond received an anonymous telephone tip that the shooter was “Primo J.” Raymond knew defendant as “Primo J.,” whom he had seen on many prior occasions.

On June 30, 1988, at approximately 1:30 a.m., Officer Raymond, with Chicago police officer Frank Vukonich and Sergeant Mingy, went to defendant’s home. They spoke with defendant and his mother. The officers asked defendant to accompany them to Area 5 police headquarters for questioning and defendant agreed. At the police station, after being informed of his Miranda rights, defendant at first stated that he did not know anything about the shooting.

Defendant was interviewed again at approximately 12:30 p.m. After again being informed of his Miranda rights, defendant confessed that he shot the victim. Defendant made an oral statement to Chicago police detective Richard Curley. Defendant’s statement is as follows. On the night of the shooting, several of defendant’s fellow gang members informed defendant that rival gang members were in his gang’s territory. Defendant told his companions to return to the rival gang and he would meet them there. Defendant then retrieved a loaded 380 automatic pistol.

When defendant met his companions, they were in a shouting match with some Latin Kings. One Latin King, who was the victim, stood off to one side of the group, near the boathouse. The victim was taunting defendant. Defendant then stalked the victim, approaching him from behind. When defendant finally made contact, he said something to the victim. The victim turned to face defendant, while at the same time reaching for his waist. Defendant then shot the victim, took the victim’s bicycle, fled from the crime scene, and hid the bicycle and the gun. Defendant then rode a motorscooter through the area.

At approximately 2:15 p.m., defendant repeated this statement to then Assistant State’s Attorney Delcine Thompson. Thompson and Curley then spoke with Louis Vargas, also known as “Pito,” who was another member of defendant’s gang. Vargas told Thompson and Curley that at no time did the victim have a gun.

Thompson and Curley then confronted defendant with Vargas’ statement. After again being informed of his Miranda rights, defendant told them that Vargas spoke truthfully. Defendant essentially repeated his statement made to Curley Defendant added that at no time did he actually see a gun on the victim’s person at the time of the shooting. In his signed, written statement, taken at approximately 6 p.m., defendant stated that he thought the victim had a pistol, but he did not actually see any.

Police retrieved the pistol where defendant said he hid it. The State presented evidence that the bullets removed from the victim’s body could have been fired from the pistol. The police department’s firearms examiner opined that the bullets were too mutilated to make an exact match. However, he also opined that “class characteristics” of the fired bullets were “consistent” with the bullets having been fired from the pistol.

The defense case was essentially that defendant acted in self-defense. When defendant made his 12:30 p.m. statement to Detective Curley, defendant stated that he saw the victim holding a “small, dark-colored gun” during their shouting match. Defendant believed that the victim was reaching for a gun at his waist while he turned to face defendant.

On cross-examination by the State, Detective Curley related the substance of Vargas’ statement for the first time during trial. Curley testified that Vargas told him and Thompson that at no time did the victim have a gun. Further, when confronted with Vargas’ statement, defendant told them that Vargas told the truth.

The jury convicted defendant of first-degree murder, and acquitted him of armed robbery and first-degree murder based on the commission of the armed robbery. At the sentencing hearing, the trial judge denied defendant’s post-trial motion.

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Cite This Page — Counsel Stack

Bluebook (online)
595 N.E.2d 117, 230 Ill. App. 3d 556, 172 Ill. Dec. 54, 1992 Ill. App. LEXIS 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-malave-illappct-1992.