{ "id": 5212234, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE MALAVE, Defendant-Appellant", "name_abbreviation": "People v. Malave", "decision_date": "1992-05-28", "docket_number": "No. 1\u201489\u20143398", "first_page": "556", "last_page": "564", "citations": [ { "type": "official", "cite": "230 Ill. App. 3d 556" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "444 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2513450 ], "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0129-01" ] } ], "analysis": { "cardinality": 884, "char_count": 18189, "ocr_confidence": 0.782, "pagerank": { "raw": 7.650673470988852e-08, "percentile": 0.45176224559810246 }, "sha256": "60277efe4fa29014b9af422cc2461e1b5a06d3f358904e01c5ba89401674d883", "simhash": "1:721ab0d577406c57", "word_count": 2950 }, "last_updated": "2023-07-14T21:56:33.012273+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE MALAVE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LINN\ndelivered the opinion of the court:\nDefendant, Jose Malave, was convicted of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 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.\nDefendant 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\u2019s case and closing argument. Defendant also contends (3) the trial judge erred in determining the sentence.\nWe affirm the judgment of the trial court.\nBackground\nThe record contains the following pertinent facts. Defendant was indicted on three counts of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 \u2014 l(aXl) through (aX3)), one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 \u2014 2), and one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A).\nThe State\u2019s 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 \u201cPeople,\u201d which includes the Latin Kings, occupies the west side of the park; the \u201cFolks,\u201d 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 \u201cFolks.\u201d The victim, Jorge Sanchez, also known as Victor, was a member of the Latin Kings, affiliated with the \u201cPeople.\u201d\nOn 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 \u201cFolks\u201d on the east side of the street. The \u201cFolks\u201d responded by shouting insults at the victim. Later that night, Munoz was in the west side of the park with the victim\u2019s cousin Roberto. The victim approached them and borrowed Roberto\u2019s bicycle. The victim rode the bicycle toward the boathouse on the east side of Humboldt Boulevard, where the \u201cFolks\u201d gathered.\nThe 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.\nChicago 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.\nOn June 28, 1988, Chicago police officer Clyde Raymond received an anonymous telephone tip that the shooter was \u201cPrimo J.\u201d Raymond knew defendant as \u201cPrimo J.,\u201d whom he had seen on many prior occasions.\nOn June 30, 1988, at approximately 1:30 a.m., Officer Raymond, with Chicago police officer Frank Vukonich and Sergeant Mingy, went to defendant\u2019s 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.\nDefendant 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\u2019s statement is as follows. On the night of the shooting, several of defendant\u2019s fellow gang members informed defendant that rival gang members were in his gang\u2019s 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.\nWhen 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\u2019s bicycle, fled from the crime scene, and hid the bicycle and the gun. Defendant then rode a motorscooter through the area.\nAt approximately 2:15 p.m., defendant repeated this statement to then Assistant State\u2019s Attorney Delcine Thompson. Thompson and Curley then spoke with Louis Vargas, also known as \u201cPito,\u201d who was another member of defendant\u2019s gang. Vargas told Thompson and Curley that at no time did the victim have a gun.\nThompson and Curley then confronted defendant with Vargas\u2019 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\u2019s 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.\nPolice retrieved the pistol where defendant said he hid it. The State presented evidence that the bullets removed from the victim\u2019s body could have been fired from the pistol. The police department\u2019s firearms examiner opined that the bullets were too mutilated to make an exact match. However, he also opined that \u201cclass characteristics\u201d of the fired bullets were \u201cconsistent\u201d with the bullets having been fired from the pistol.\nThe 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 \u201csmall, dark-colored gun\u201d during their shouting match. Defendant believed that the victim was reaching for a gun at his waist while he turned to face defendant.\nOn cross-examination by the State, Detective Curley related the substance of Vargas\u2019 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\u2019 statement, defendant told them that Vargas told the truth.\nThe 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\u2019s post-trial motion. At the close of the hearing, the trial judge sentenced defendant to 50 years on one count of murder. (See People v. Hood (1989), 191 Ill. App. 3d 129, 134, 547 N.E.2d 637, 641.) Defendant appeals.\nOpinion\nI\nA\nDefendant first contends that the trial judge erred by admitting into evidence Vargas\u2019 out-of-court statement, as told by Curley, that the victim did not have a gun at anytime. Defendant argues that Vargas\u2019 out-of-court statement constituted hearsay and, therefore, was inadmissible. Defendant alternatively argues that the admission of the statement denied his constitutional right to confront the witnesses against him and that the statement was irrelevant to his claim of self-defense.\nHearsay is testimony in court or written evidence of an out-of-court statement, offered to establish the truth of the matter asserted therein and, thus, resting for its value upon the credibility of the out-of-court asserter. (People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741.) However, an out-of-court statement not offered for the truth of the matter asserted is not hearsay. People v. Loggins (1985), 134 Ill. App. 3d 684, 692, 480 N.E.2d 1293,1299.\nA statement used in a criminal prosecution to detail the course of a police investigation, not to prove the truth of the matter asserted, is not hearsay. (Loggins, 134 Ill. App. 3d at 692, 480 N.E.2d at 1299.) Such a statement is admissible if offered for the limited purpose of explaining why the police conducted their investigation as they did, or why they arrested defendant, or why they confronted defendant with their suspicions. (People v. Jones (1986), 140 Ill. App. 3d 660, 673, 488 N.E.2d 1363, 1372; People v. Jones (1983), 114 Ill. App. 3d 576, 589, 449 N.E.2d 547, 557-58.) The rationale of the rule is that a portrayal of the events in question lessens the need of the fact finder to speculate on the reasons for the officers\u2019 subsequent actions. The rule thus serves the ends of justice. State v. Brooks (Mo. 1981), 618 S.W.2d 22, 25.\nApplying these principles to the case at bar, we conclude that Vargas\u2019 out-of-court statement was relevant and admissible non-hearsay. At the outset we note that defendant misreads the record. Defendant contends that both Detective Curley and then Assistant State\u2019s Attorney Thompson related Vargas\u2019 statement. However, the record shows that only Curley, testifying for the defense and during the State\u2019s cross-examination, actually told what Vargas said. Thompson did not relate Vargas\u2019 statement. Rather, she merely testified that she spoke with Vargas and then confronted defendant with Vargas\u2019 statement. Therefore, there is no discernible hearsay problem with Thompson\u2019s testimony. See People v. Bennett (1987), 159 Ill. App. 3d 172,180, 511N.E.2d 1340,1345.\nDefendant contends Vargas\u2019 statement was admitted \u201cas positive evidence that [the victim] did not have a gun.\u201d However, the record shows that Curley did not offer Vargas\u2019 statement to prove that the victim did not have a gun. Rather, Curley related Vargas\u2019 statement to explain why he and Thompson confronted defendant \"with their suspicions. Thus, the evidence was relevant for that purpose and defendant\u2019s constitutional right of confrontation was not violated. As we stated in People v. Matthews (1990), 205 Ill. App. 3d 371, 562 N.E.2d 1113:\n\u201cIt is clear from the record that the testimony was being offered to describe the process and development of the investigation and the subsequent interrogations of the defendant while he was in custody. Because it was not offered for the truth of the matter asserted, the testimony is not inadmissible hearsay and its admission was not prejudicial error. [Citation.]\u201d 205 Ill. App. 3d at 412, 562 N.E.2d at 1137-38.\nB\nDefendant also contends that the trial court erred by restricting his right of cross-examination. Defendant notes that the trial judge allowed Thompson to refer to Vargas\u2019 statement and defendant\u2019s reaction to Vargas\u2019 statement. Defendant further notes, however, that the trial judge did not allow defendant to cross-examine Thompson regarding the substance of Vargas\u2019 statement. Defendant argues that this was error.\nIt is true \u201cthat additional portions of a statement must be admitted when necessary to prevent the jury from receiving a misleading impression as to the nature of the statement.\u201d (People v. Olinger (1986), 112 Ill. 2d 324, 337, 493 N.E.2d 579, 586, citing People v. Weaver (1982), 92 Ill. 2d 545, 556-57, 442 N.E.2d 255, 259.) However, \u201c[a] defendant has no right to introduce portions of a statement which are not necessary to enable the jury to properly evaluate the portions introduced by the State.\u201d Olinger, 112 Ill. 2d at 338, 493 N.E.2d at 586.\nIn the case at bar, defendant does not argue that Thompson\u2019s testimony was misleading. Rather, defendant merely makes the blanket assertion that \u201conce a witness testifies to a part of a conversation, the opposing party has a right to bring out all of the conversation on cross-examination.\u201d Olinger holds otherwise. Since defendant does not argue that Thompson\u2019s testimony was misleading, we find no error in the trial judge\u2019s ruling.\nII\nDefendant next contends he was denied a fair trial due to the prosecutor\u2019s inflammatory remarks during the State\u2019s case and closing argument.\nA\nDefendant notes that at the beginning of the direct examinations of Maria Martinez, Nathan Iverson, and Mario Munoz, the prosecutor asked each of them: \u201cWithout telling us your exact address, do you live in the city of Chicago?\u201d or \u201cWithout telling us your exact address, what area of the city do you live in, Sir?\u201d Defendant also notes that the prosecutor asked Iverson, \u201cWithout telling us what school you go to, what grade are you in?\u201d Defendant argues that these remarks \u201cwere inflammatory and caused the defendant substantial prejudice.\u201d\nHowever, defendant failed both to object to this questioning at trial and to include the issue in his post-trial motion; thus, the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) After reviewing the record, we further conclude that this issue does not warrant our consideration under the plain error doctrine of Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). See People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091, 1093.\nB\nDefendant contends he was denied a fair trial also because the prosecutor made improper and prejudicial remarks during closing argument. A prosecutor has great latitude in presenting his or her closing argument. A reviewing court is reluctant to set aside a verdict based on remarks made during closing argument and does so only where the remarks are clearly prejudicial. In determining whether the remarks are prejudicial, a court must refer to the content of the language used, its relation to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. (People v. Franklin (1976), 42 Ill. App. 3d 408, 421, 355 N.E.2d 634, 645.) Also, the trial court is in a better position than a reviewing court to determine the prejudicial effect of a remark made during closing argument. Absent a clear abuse of discretion, its ruling should be upheld. People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327.\nThe record shows that after the defendant objected to each of the prosecutor\u2019s four allegedly improper remarks, the trial judge instructed the jury that closing arguments are not evidence and any argument made that is not based on the evidence should be disregarded. The trial judge also gave this admonition immediately prior to closing argument and included the admonition in his written instructions to the jury. We must presume that the jurors followed the trial judge\u2019s instructions. (See People v. Jackson (1986), 145 Ill. App. 3d 626, 642, 495 N.E.2d 1207, 1220.) Thus, these errors, if any, were cured. (People v. El (1980), 83 Ill. App. 3d 31, 41, 403 N.E.2d 547, 555.) After reviewing the record, we hold that none of the prosecutor\u2019s remarks, considered individually or cumulatively, denied defendant a fair trial.\nIll\nDefendant lastly claims that the trial judge exceeded his discretion in sentencing him. Defendant argues that \u201cthe trial judge improperly considered the death of the victim as an aggravating factor.\u201d Defendant argues, therefore, that the trial judge exceeded his discretion, and that this requires us to vacate his sentence.\nA sentencing decision is a matter of judicial discretion and, so long as the sentence is within the statutory limits, we hesitate to exercise our power to reduce it absent a finding that the trial court exceeded its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) Following a murder conviction, it is improper for a sentencing court to consider the victim\u2019s death as an aggravating factor because death is implicit in the offense and the legislature took death into account when it established the sentencing range for the crime. However, it is settled that a trial judge\u2019s observation that a defendant murdered someone, or the judge\u2019s acknowledgement that the victim died, does not establish that the judge improperly considered death as an aggravating factor. People v. Verser (1990), 200 Ill. App. 3d 613, 620, 558 N.E.2d 226, 231 (and cases cited therein).\nAfter closely reviewing the record, we cannot say that the trial judge exceeded his discretion. Defendant\u2019s 50-year sentence was within the statutory range. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 \u2014 8\u2014 l(aXl)(a).) It is true that the trial judge noted the fact that defendant killed the victim. However, the record also shows that the trial judge considered many different factors before imposing sentence. Our observation in People v. Barney (1982), 111 Ill. App. 3d 669, 444 N.E.2d 518, applies here:\n\u201cDefendant assumes that the trial judge imposed a longer sentence than he otherwise would have because his statement referred to [the victim\u2019s] death. We think this assumption is unwarranted, since other factors that reasonably could be considered aggravating factors also were specified ***.\n*** It is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error.\u201d (111 Ill. App. 3d at 679, 444 N.E.2d at 525.)\nWe hold that defendant\u2019s 50-year prison sentence was well within the discretion of the trial court.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nJIGANTI, P.J., and McMORROW, J., concur.", "type": "majority", "author": "JUSTICE LINN" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Cheryl K. Lipton and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE MALAVE, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201489\u20143398\nOpinion filed May 28, 1992.\nRehearing denied June 23,1992.\nRandolph N. Stone, Public Defender, of Chicago (Cheryl K. Lipton and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0556-01", "first_page_order": 576, "last_page_order": 584 }