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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROMAN CHAVEZ, Defendant-Appellant."
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        "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nDefendant, Roman Chavez, was charged by indictment with first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 1), robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 \u2014 1), and disarming a police officer (Ill. Rev. Stat. 1989, ch. 38, par. 31 \u2014 la). Following a jury trial in the circuit of Cook County, he was convicted of all charges and sentenced to life in prison without parole. Defendant appeals, alleging that (1) the trial court improperly excluded his post-arrest statements; (2) the trial court wrongly excluded evidence of his mental condition; (3) the trial court erroneously tendered an instruction on the use of force by an initial aggressor; (4) the trial court improperly admitted certain evidence; and (5) the prosecution made several improper arguments during closing and rebuttal arguments which denied him a fair trial.\nWe affirm.\nThis case involves the shooting deaths of Chicago police officers Gregory Hauser and Raymond Kilroy. Defendant shot and killed the officers as they were responding to a 911 call from Florence Zuniga, defendant\u2019s 75-year-old grandmother. The circumstances surrounding the shooting as presented at trial are as follows.\nOn the evening of May 13, 1990, defendant was working on his car in his grandmother\u2019s garage located behind the Zuniga home at 2158 North N\u00f3rdica in Chicago. The two-car garage was full of auto parts and other debris so that there was room for only one car. Ms. Zuniga asked defendant to remove his car so she could park her car in the garage and threatened to call the police if he refused. Defendant failed to comply and, after several exchanges, Ms. Zuniga went inside the house and called the police. As she left the garage, she noticed that the side door to the garage was unlocked.\nMs. Zuniga initially called a neighborhood police station and requested to speak with an officer who had previously visited the Zuniga home in response to a disturbance caused by defendant. She was informed that the officer was not on duty and was told to call 911. Ms. Zuniga then telephoned 911 and Officers Hauser and Kilroy responded to the call.\nImmediately upon arriving at the Zuniga home, Officer Hauser radioed for a police wagon to help transport defendant to the police station. The two officers then spoke with Ms. Zuniga, who led them to the garage after she assured them she would sign a complaint. The officers entered the garage under the overhead door, which was partially lowered, while Ms. Zuniga went to the side door. As she approached the door, Ms. Zuniga observed the garage light go out. Ms. Zuniga then heard scuffling coming from inside the garage during which she heard defendant cry out for help. She then attempted to enter the side door, which was now locked.\nAt trial, Reverend Andrew Hagen and his wife, Susan Hagen, testified that on May 13, 1990, they lived across the street from the Zuniga home. On that date, Reverend Hagen was looking out of his living room window when he observed two officers arrive at the Zuniga home. As the officers approached the garage, they appeared very calm. After the officers entered the garage, Hagen heard noise coming from the garage. He also heard a voice cry out for help, and when he looked out of his window, he saw Ms. Zuniga running toward the street. Hagen ran out to assist Ms. Zuniga and then heard six gunshots. Moments after he helped Ms. Zuniga to his house, Hagen saw defendant emerge from the garage holding a gun in the air. Defendant did not limp or appear to be injured. Hagen then heard defendant announce, \"Everybody better leave me alone.\u201d Mrs. Hagen telephoned 911.\nShortly before 9 p.m. on May 13, 1990, Chicago police officers Bruce Pearson and Andre Souffant arrived at the Zuniga home 10 minutes after receiving Officer Hauser\u2019s request for a police wagon. Reverend Hagen called out to the officers that defendant was inside the house. Officer Souffant went to the house while Officer Pearson went to the garage. As he approached the garage, Pearson heard what he considered to be a groan or a growl. He then entered the garage where he found Officers Hauser and Kilroy lying six inches apart on the ground.\nOfficer Pearson approached the two officers and noticed that Hauser was breathing but Kilroy was not. He also noticed that Hauser\u2019s gun holster was pulled around in front of his crotch and his service revolver was missing. Pearson observed that although Kilroy\u2019s gun was fully loaded and in his holster with the safety tab intact, his handcuffs and flashlight were missing. Pearson then radioed for help and Hauser and Kilroy were taken to area hospitals where Kilroy was pronounced dead upon arrival. Hauser died later that evening.\nSubsequently, police officers searched the Zuniga home and the surrounding area for several hours. At approximately 2 a.m., Officer Harold Bone found defendant hiding under a porch at 2310 North Harlem. Defendant resisted as Officer Bradul Ortiz pulled him out from under the porch area, which was full of debris. Defendant\u2019s hands and legs were cuffed and he was taken to the police station. Hours later, Officer Sarah McDermott recovered Hauser\u2019s fully loaded gun, which was buried under the porch beneath the debris.\nGinger Rogers testified at trial that sometime in June of 1990, she was in defendant\u2019s bedroom at his grandmother\u2019s house. She stated that while looking behind defendant\u2019s dresser she observed a pair of handcuffs lying inside some clothing. Rogers also looked through defendant\u2019s dresser drawers where she found a box containing a bullet and keys to the handcuffs.\nDr. Metra Kalelkar testified at trial that she performed autopsies on the bodies of Officers Hauser and Kilroy and determined that each had suffered three gunshot wounds. She stated that Kilroy was shot once in his neck, and two bullets perforated his lungs. Dr. Kalelkar traced the paths of the bullets and concluded that all shots fired at Kilroy were fired from his left to right, indicating the gun was to the left of the officer.\nIn further testimony, Dr. Kalelkar stated that Officer Hauser suffered a gunshot wound to his head, his right armpit and right forearm. According to Dr. Kalelkar, the wounds to Hauser\u2019s head and armpit indicated that he was shot from close range. Dr. Kalelkar traced the path of the bullet wound to Hauser\u2019s forearm and noted that the injury would be consistent with Hauser either being seated on the floor or leaning toward the gun at the time he was shot. Dr. Kalelkar offered no opinion as to the order of the shots which killed the officers except that the gunshot to Hauser\u2019s head was the last wound inflicted. The cause of death of both officers was multiple gunshot wounds.\nChicago police firearm expert Richard Chenow testified at trial that he analyzed the slain officers\u2019 guns and the bullets recovered from the Zuniga garage after the shooting. Chenow stated that all of the spent casings found in the garage were fired from Officer Hauser\u2019s gun and that Kilroy\u2019s gun had not been fired. A discharged shell casing found in defendant\u2019s bedroom after the shooting was the same as the spent casings found in the garage. Chenow further testified that he examined the clothing worn by the slain officers. Based on his examination, Chenow determined at least one of the gunshots which hit Kilroy was fired at close range. He examined the entrance and exit holes on the officers\u2019 clothing and was able to trace the path of the bullets.\nAlso at trial, over defendant\u2019s objection, the State presented evidence concerning defendant\u2019s previous arrests. Northlake police officer Jack Monticello testified that on January 26, 1990, he arrested defendant for speeding, failing to stop, and operating a vehicle without insurance. According to Monticello, defendant later failed to appear in court and a warrant was issued for his arrest. Northlake police officer Domenico Rossi testified that on March 26, 1990, he and his partner, Robert Fazzi, arrested defendant based on the warrant. The officers took defendant to the police station, where he threatened the officers stating that if he had a gun, he would kill all of them.\nElmhurst police officer Paul Carney testified that on February 7, 1990, he stopped defendant for speeding. After speaking with him, the officer learned that defendant was driving without insurance and ordered him from his car. However, defendant reached for his ignition keys and attempted to start his car. When the officer reached inside defendant\u2019s car to grab the keys, defendant rolled up the car window and locked the officer\u2019s arm between the window and the door frame. Officer Carney pulled his arm free and defendant drove off. Defendont was apprehended a short time later and taken to the police station where he was arrested. Defendant was released on his own recognizance and given a court date. However, defendant failed to appear in court on March 19, 1990, and a warrant was issued for his arrest. According to Officer Carney, the warrant was still active on May 13, 1990.\nSteve Wonziak testified at trial that he had known defendant for two years. He stated that in May of 1990, he saw defendant on a public bus and defendant told him he had lost his job in Elmhurst because the police were harassing him. According to Wonziak, defendant also told him that he wanted to get even with the police and make them pay. Likewise, Barbara Patrasso testified that she had known defendant for over two years and that she spoke with him during the week of May 6, 1990. She stated that defendant was upset that he kept getting arrested for not having any car insurance. According to Patrasso, defendant told her that the next time police bothered him, he was \"going to blow them away.\u201d\nAt trial, defendant raised the theory of self-defense. In support, he presented evidence concerning his clothing and physical appearance on the night of his arrest on May 13, 1990. Several photographs of defendant\u2019s body and face were introduced into evidence and numerous witnesses testified regarding various bruises and abrasions on defendant\u2019s body.\nAt the close of the evidence, the trial court instructed the jury, which later returned a guilty verdict. Following defendant\u2019s sentencing hearing, the jury was unable to unanimously find him eligible for the death penalty. Subsequently, the trial court sentenced defendant to life in prison without parole. Defendant then filed this appeal.\nFirst, defendant asserts that he was denied a fair trial because the trial court denied his request to admit his post-arrest statements. At trial, over defendant\u2019s objection, the trial court permitted the State to show the jury a videotape of defendant being led from the police station following his arrest. The State assured the trial court that none of defendant\u2019s post-arrest statements would be shown. During the showing, however, defendant\u2019s statement, \"I did what I had to do. That\u2019s all I have to say,\u201d was printed at the bottom of the video screen. Defendant moved for a mistrial.\nDuring an in-chambers conference, defense counsel argued, inter alla, that defendant was prejudiced by the showing of the videotape. He asserted that the statement printed on the screen gave the jury an inaccurate impression of defendant\u2019s post-arrest statements to police. In response, the prosecution stated that the tape had been inadvertently set to the wrong position. The trial court denied defendant\u2019s motion for a mistrial and defendant moved to have all of his post-arrest statements admitted. After expressing its concern that the videotape may have caused defendant some unfairness, the trial court denied defendant\u2019s request to admit his other post-arrest statements. Defendant contends that the trial court should have admitted his post-arrest statements under the doctrine of curative admissibility to cure the prejudice he suffered from the videotape. We disagree.\nUnder the doctrine of curative admissibility, a litigant may present inadmissible evidence where necessary to cure undue prejudice possibly resulting from an opponent\u2019s introduction of similar evidence. (People v. Higgins (1979), 71 Ill. App. 3d 912, 931.) In Higgins, this court further reasoned that the doctrine is limited in scope and that the trial court determines, in its sound discretion, whether to admit the curative evidence. Higgins, 71 Ill. App. 3d at 931.\n\u20221 Based on our review of the evidence, we cannot say that the trial court abused its discretion in refusing to admit defendant\u2019s post-arrest statements. Obviously, the trial court determined that the statement did not rise to the level of undue influence required to invoke the doctrine of curative admissibility. Upon our review of the statement, we believe that it is at worst equivocal, and we remain unpersuaded that it prejudiced defendant such that his other post-arrest statements should have been admitted.\n\u20222 Similarly, we reject defendant\u2019s argument that the trial court committed reversible error by admonishing the jury to disregard the following comment made by defense counsel during closing argument: \"Ladies and gentlemen, in deciding the evidence, wouldn\u2019t you have liked to have heard what [defendant] told the police officers?\u201d The State correctly notes that defendant\u2019s post-arrest statements to police were inadmissible based on the State\u2019s pretrial motion in limine barring their introduction into evidence. Where a trial court determines evidence to be inadmissible, trial counsel may not refer to that evidence during closing argument. (People v. Mullen (1990), 141 Ill. 2d 394, 404.) Given the State\u2019s motion in limine, defense counsel improperly suggested to the jury that the prosecution should have introduced defendant\u2019s post-arrest statements. Thus, we believe that the trial court properly admonished the jury to disregard counsel\u2019s comments.\nWe next address defendant\u2019s contention that the trial court erroneously barred the defense from presenting evidence of his mental condition. When cross-examining Steve Wonziak, defense counsel asked whether he knew defendant was \"mentally kind of slow.\u201d The trial court sustained the prosecutor\u2019s objection, reasoning that the witness was not qualified to render such an opinion and that \"slow\u201d was too vague. Defendant claims that the evidence was erroneously excluded and he was denied his rights to present a defense and to a fair trial.\nDefendant correctly points out that nonexperts may express an opinion regarding an accused\u2019s mental condition if based on personal observations made shortly before or after the crime was committed. (People v. Williams (1990), 201 Ill. App. 3d 207, 219.) To be admissible, however, such opinions must be \"limited to conclusions drawn from the specific facts to which they testified.\u201d (People v. Chatman (1986), 145 Ill. App. 3d 648, 659.) The trial court determines whether sufficient facts and circumstances have been testified to, and its decision will not be disturbed on appeal unless an abuse of discretion occurs. Chatman, 145 Ill. App. 3d at 659.\n\u20223 We do not believe that the trial court abused its discretion in limiting defense counsel\u2019s inquiry of Wonziak concerning defendant\u2019s mental condition. Although Wonziak testified that he had known defendant for two years, he did not relate any facts or circumstances on which to base an opinion as to defendant\u2019s mental condition. (See People v. Kluxdal (1991), 225 Ill. App. 3d 217, 225 (where a nonexpert was permitted to testify regarding the defendant\u2019s mental condition based on his observation of the defendant\u2019s behavior to which the witness testified at trial); see also People v. McCleary (1990), 208 Ill. App. 3d 466, 478-79 (wherein nonexpert witnesses\u2019 testimony regarding the defendant\u2019s mental state was admitted based on their observations as to the defendant\u2019s demeanor and behavior to which they specifically testified at trial).) Because we believe defense counsel failed to lay a sufficient foundation for Wonziak\u2019s testimony concerning defendant\u2019s mental condition, we find no abuse of discretion.\nWe turn now to defendant\u2019s third allegation of error in which he claims that the trial court improperly tendered Illinois Pattern Jury Instructions, Criminal, No. 24 \u2014 25.09 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 24 \u2014 25.09). Defendant asserts that IPI Criminal 2d No. 24 \u2014 25.09, concerning the justifiable use of force by an initial aggressor, should not have been given because no evidence suggested that he was the aggressor. We disagree. .\nDefendant correctly notes that it is error to give IPI Criminal 2d No. 24 \u2014 25.09 where no evidence demonstrates that the accused was the initial aggressor. (See People v. Smith (1990), 195 Ill. App. 3d 878, 881-82.) However, where conflicting evidence exists as to whether defendant was the aggressor, IPI Criminal 2d No. 24 \u2014 25.09 may be properly tendered to the jury. (People v. Townsend (1985), 136 Ill. App. 3d 385, 391.) Even minimal evidence which supports a theory that defendant was the aggressor is sufficient to justify giving an instruction based on that theory. People v. Price (1987), 158 Ill. App. 3d 921, 928-29.\n\u20224 In the present case, we believe there was adequate support in the evidence to justify the giving of IPI Criminal 2d No. 24 \u2014 25.09. At trial, Ms. Zuniga testified that when she first spoke with defendant prior to calling 911, the garage light was on and the side door to the garage was unlocked. After the police arrived and entered the garage, however, Ms. Zuniga saw the garage light go out. She then unsuccessfully attempted to enter the garage through the side door, which had been locked. We agree with the State that this evidence supports a permissible inference that defendant barricaded himself in the garage and waited to ambush the police. Thus, we hold that the trial court did not err in tendering the instruction to the jury.\nFourth, defendant claims that the trial court improperly permitted a prosecution witness to read Officers Hauser\u2019s and Kilroy\u2019s oaths of office into evidence. At trial, Chicago police officer Richard Wedgbury read each officer\u2019s oath into the record over defendant\u2019s objection. Defendant claims the oaths of office had no relevance in the case and their admission constituted an improper appeal for juror sympathy. We believe this argument is without merit.\n\u20225 Defendant was charged with, inter alla, disarming a police officer (111. Rev. Stat. 1989, ch. 38, par. 31 \u2014 la). As a an element of the offense, the State had to prove that both Hauser and Kilroy were, in fact, police officers. (See People v. Tye (1990), 141 Ill. 2d 1, 15.) The officers\u2019 oaths established the exact dates Hauser and Kilroy were appointed as police officers and, therefore, were relevant to the issues. Moreover, other than having the oaths read into the record as an element of proof, the State made no further mention of the oaths. Consequently, we remain unpersuaded that use of the officers\u2019 oaths was an inflammatory appeal for juror sympathy.\nFinally, defendant challenges several arguments presented by the State during closing and rebuttal arguments. Specifically, he asserts that the prosecution committed prosecutorial misconduct in making the arguments which he alleges were improper and denied him a fair trial. When reviewing prosecutorial misconduct claims based on statements made during closing arguments, the court must examine the statements in their entirety and scrutinize them in their proper context. (People v. Pasch (1992), 152 Ill. 2d 133, 207.) Moreover, attorneys are entitled to great latitude in closing argument and may properly argue anything supported by the evidence or any reasonable inference therefrom. (People v. Mullen (1990), 141 Ill. 2d 394, 404.) With this in mind, we shall briefly consider each of the alleged errors separately.\n\u20226 First, defendant claims the prosecutor improperly argued facts which were not in evidence regarding the sequence in which Officers Hauser and Kilroy were shot. He correctly notes that no witness testified concerning the exact order in which the officers were shot. However, Dr. Kalelkar and firearms expert Richard Chenow testified as to the location and severity of each bullet wound suffered by the officers, the location of the gun in relation to the officers when shot, and some of the distances from which the officers were shot. This evidence, taken together with other circumstances of the shooting, including the position of Hauser\u2019s holster and the location of the officers\u2019 bodies when found, convinces us that the prosecutor\u2019s inferences concerning the order and sequence of the shots were reasonably based on the evidence. See People v. Cisewski (1987), 118 Ill. 2d 163.\nSecond, defendant challenges the prosecutor\u2019s remark in rebuttal concerning Officer Kilroy\u2019s shoes, which were neither inventoried by police nor admitted into evidence at trial. Defense counsel stated during closing argument that without the shoes the jury could not know whether they actually caused some of defendant\u2019s injuries. In rebuttal, the prosecutor argued that even admitted into evidence, the shoes would not have been shown to have caused defendant\u2019s injuries. The trial court sustained defendant\u2019s objection to the argument and admonished the jury to disregard the remarks. Defendant claims he was denied a fair trial by the prosecutor\u2019s repeated references to Officer Kilroy\u2019s shoes despite defendant\u2019s sustained objections.\n\u20227 Defendant properly notes that a prosecutor may not express his personal opinion on the evidence or argue assumptions or facts which are not based on the evidence. (People v. Smith (1990), 141 Ill. 2d 40, 60.) Moreover, a defendant may be entitled to a new trial where a prosecutor repeatedly defies the trial court\u2019s instructions to cease making an improper line of argument. (People v. Campbell (1983), 115 Ill. App. 3d 631, 636-37.) However, a new trial will not be granted based on a prosecutor\u2019s improper comments during closing argument unless the comments are \"so prejudicial as to materially contribute to a defendant\u2019s conviction.\u201d (People v. Collins (1984), 127 Ill. App. 3d 236, 241.) Given the overwhelming evidence of defendant\u2019s guilt in the present case, we hold that the comments complained of did not prejudice defendant so as to warrant a new trial.\nThird, defendant criticizes the following line of argument made by the prosecutor during closing argument:\n\u201d[T]here exist[s] in the city, a record breaking climate of violence and there exists in this city protecting us from that violence, a thin blue line, a thin blue line of officers ***.\n* * *\n*** [According to the Supreme Court of the United States, you, a Criminal Court jury, is the conscious [sic] of society, you will decide what is right and what is wrong, you will decide what will and won\u2019t be tolerated.\nPlease send a message to the community that you support law and order, that you support justice.\u201d\nDefendant maintains that the argument was inflammatory and improperly appealed to the fears and biases of the jury. He also suggests that the prosecutor misstated the role of the jury as a neutral arbiter of the facts and diverted its attention away from relevant issues. We disagree.\nAs we previously stated, when reviewing allegedly improper remarks made during closing argument, the court must evaluate them in context. (People v. Cisewski (1987), 118 Ill. 2d 163, 175-76.) In People v. Jenkins (1989), 190 Ill. App. 3d 115, this court reasoned that prosecutorial remarks which may be inflammatory do not warrant a new trial unless they cause substantial prejudice to the accused and a different outcome would have resulted had the comments not been made. (Jenkins, 190 Ill. App. 3d at 135.) After reviewing the comments in their proper context, we cannot agree with defendant that they constitute reversible error.\n\u20228 Moreover, in People v. Batson (1992), 225 Ill. App. 3d 157, the court held that the prosecutor could properly admonish the jury during closing argument to \" 'send a message to the community\u2019 that violent crime will not be tolerated.\u201d (Batson, 225 Ill. App. 3d at 168.) In approving the comments in Batson, we reasoned that the prosecution may \" 'dwell upon the evil results of crime and to urge the fearless administration of the law.\u2019 \u201d (Batson, 225 Ill. App. 3d at 169, quoting People v. Harris (1989), 129 Ill. 2d 123, 159.) We believe the comments complained of here are analogous to the prosecutorial comments in Batson. Consequently, we hold that the prosecutor\u2019s comments, when viewed in context, were within the realm of permissible argument.\n\u20229 Similarly, we cannot agree with defendant that he is entitled to a new trial based upon the prosecutor\u2019s allegedly improper appeal to juror sympathy. Defendant claims that he was prejudiced by the prosecutor\u2019s reference during opening argument to the fact that May 13, 1990, was Mother\u2019s Day and that Officer Hauser stopped by his house and visited with his wife prior to the shooting. However, the trial court admonished the jury that comments made during opening and closing arguments are not evidence and that comments not based on the evidence should be disregarded. Therefore, any prejudice which may have resulted from the cited comments was offset by the trial court\u2019s admonishments to the jury. See People v. Manley (1991), 222 Ill. App. 3d 896, 912.\nFor the foregoing reasons, the judgment of the circuit court is affirmed. As part of our judgment, we grant the State\u2019s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275.\nAffirmed.\nCAHILL and THEIS, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE JOHNSON"
      }
    ],
    "attorneys": [
      "Rita A. Fry, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellant.",
      "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Assistant State\u2019s Attorney, and Rebecca Davidson, Special Assistant State\u2019s Attorney, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROMAN CHAVEZ, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201491\u20141954\nOpinion filed June 16, 1994.\nRita A. Fry, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Assistant State\u2019s Attorney, and Rebecca Davidson, Special Assistant State\u2019s Attorney, of counsel), for the People."
  },
  "file_name": "0451-01",
  "first_page_order": 471,
  "last_page_order": 482
}
