{ "id": 2798408, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Gilbert Rivera, Defendant-Appellant", "name_abbreviation": "People v. Rivera", "decision_date": "1975-09-24", "docket_number": "No. 60512", "first_page": "500", "last_page": "506", "citations": [ { "type": "official", "cite": "32 Ill. App. 3d 500" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "211 N.E.2d 673", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill.2d 417", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2882811 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0417-01" ] }, { "cite": "319 N.E.2d 764", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "59 Ill.2d 276", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958767 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-2d/59/0276-01" ] }, { "cite": "231 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill.App.2d 338", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2547297, 2548277 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0338-02", "/ill-app-2d/87/0338-01" ] }, { "cite": "278 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.3d 106", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2840006, 2839327 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0106-02", "/ill-app-3d/3/0106-01" ] }, { "cite": "283 N.E.2d 225", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill.2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392065 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0418-01" ] }, { "cite": "306 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill.2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405554 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0187-01" ] }, { "cite": "99 N.E. 936", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "256 Ill. 221", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4711198 ], "opinion_index": 0, "case_paths": [ "/ill/256/0221-01" ] }, { "cite": "147 N.E. 251", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1963, "opinion_index": 0 }, { "cite": "316 Ill. 292", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5142809 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill/316/0292-01" ] }, { "cite": "288 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1925, "opinion_index": 0 }, { "cite": "52 Ill.2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394202 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0374-01" ] }, { "cite": "240 N.E.2d 616", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill.2d 433", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855199 ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0433-01" ] }, { "cite": "253 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill.2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844221 ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0375-01" ] }, { "cite": "325 N.E.2d 336", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. App.3d 691", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783339 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0691-01" ] }, { "cite": "102 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "410 Ill. 478", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311989 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill/410/0478-01" ] }, { "cite": "242 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "41 Ill.2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853252 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0177-01" ] }, { "cite": "302 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "55 Ill.2d 5", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2938169 ], "year": 1968, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0005-01" ] } ], "analysis": { "cardinality": 664, "char_count": 13486, "ocr_confidence": 0.735, "pagerank": { "raw": 1.173653616349824e-07, "percentile": 0.5869915581950916 }, "sha256": "e8e8b6ee3e651c4b7d4b908457939cc92e49e69a48065f2ef5d2ade3942cc5e3", "simhash": "1:01075b75b3f39ffd", "word_count": 2220 }, "last_updated": "2023-07-14T16:14:58.460223+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. Gilbert Rivera, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE ADESKO\ndelivered the opinion of the court:\nDefendant-appellant, Gilbert Rivera, hereinafter referred to as defendant, was tried before a jury and convicted of murdering one Francis Chuck Madsen. Defendant was sentenced to a term of 20 to 60 years\u2019 imprisonment. His appeal raises the following arguments:\n(1) The trial court erred in admitting into evidence a photograph of the victim;\n(2) The prosecutor\u2019s conduct and the court\u2019s rulings thereon denied the defendant a fair trial;\n(3) The evidence was insufficient to establish the defendant\u2019s guilt beyond a reasonable doubt; and\n(4) The sentence of 20 to 60 year's imprisonment was excessive.\nOn November 25, 1972, Francis Chuck Madsen was stabbed to death by the defendant in a Chicago tavern. Margaret Bura, Raphael Colon, Carlos Flores, and Ishmael Claudio, were in the tavern at the time of the stabbing. Colon, Flores, and Bura testified at the trial.\nColon, the only witness to the whole occurrence, testified that Madsen was seated at the bar. Defendant walked in with another man, ordered a drink, and walked over to Madsen. He raised his left hand and Madsen raised his hands to cover himself. Defendant then stabbed Madsen in the stomach with a knife held in defendant\u2019s right hand. Colon testified that Madsen was unarmed and made no attempt to strike the defendant. Colon further testified that Madsen, having been stabbed, screamed, walked away from the defendant, grabbed a bar stool, and said, \u201cMan, I never do nothing to you.\u201d Madsen then put the bar stool down, asked Bura to call an ambulance and fell onto the floor.\nNeither Flores nor Bura actually saw the stabbing. However, Flores did see Madsen pick up a bar stool. Flores also saw defendant hold a knife and ask Madsen if he \u201cwanted some more.\u201d Margaret Bura was bartending and watching television when she noticed the victim pick up a bar stool and tell the defendant, \u201cI never done nothing to you.\u201d\nDefendant contends that it was error to admit into evidence People\u2019s Exhibit No. 1, which was a photograph of the victim taken at the morgue. Defendant argues that the trial court abused its discretion in admitting into evidence a prejudicial and inflammatory photograph when it had no probative value.\n\u201c \u201cWhere photographs are relevant to establish any fact in issue * s * they are admissible in spite of the fact that they may be of a gruesome nature.\u2019\u201d (People v. Henenberg (1973), 55 Ill.2d 5, 13, 302 N.E.2d 27, 31; People v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208; People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783.) In People v. Dee (1975), 26 Ill. App.3d 691, 325 N.E.2d 336, a photograph of the victim\u2019s body with a claw hammer embedded in the back of the skull demonstrated tire most likely cause of death and had probative value in its depiction of the amount and manner in which the victim\u2019s blood had been splattered about the immediate area.\nThe photograph in the instant case depicts one stab wound in the victim\u2019s abdomen. The jury had already heard testimony bearing upon tire actual stabbing and the defendant\u2019s claim of self-defense. We are of the opinion that the photograph\u2019s probative value outweighs any inflammatory affect it may have had upon the jury. It was not error for the court to admit this exhibit.\nDefendant raises numerous contentions that the prosecutor\u2019s conduct and the court\u2019s rulings thereon denied him a fair trial. Defendant relies on People v. Nuccio (1969), 43 Ill.2d 375, 253 N.E.2d 353, to show error in the prosecution\u2019s inferences of defendant\u2019s violent character. In Nuccio, the prosecution persisted through cross-examination to make unsupported insinuations which could have seriously impeached the credibility of the defendant and his witnesses. In the case at bar, Colon and Bura were asked to explain the inconsistencies between their statements to the police and their trial testimony. Colon told the police he did not see the stabbing. Bura told the police she was in the back room at the time of the occurrence. Both testified that they were afraid of the defendant and did not know Madsen had died at the time of their statements to the police. The prosecutor attempted to rehabilitate his witnesses on redirect examination and to allow them to explain their prior inconsistent statements. The prosecution\u2019s line of questioning does not amount to the unsupported insinuations exhibited in Nuccio.\nDefendant insists that the court erred in allowing the prosecution to bring out prior consistent statements from Colon and Bura. He relies on People v. DePoy (1968), 40 Ill.2d 433, 240 N.E.2d 616, where the supreme court held it was improper to allow the State to read into evidence a prior consistent statement made ten days subsequent to the inconsistent statement. In the instant case, the defense questioned the possibility of a license revocation for tire tavern and set the stage for Bura\u2019s motive to falsify her statement. While it was improper for the prosecution to bring out prior consistent statements by both Colon and Bura, defendant did not object at trial to Colon\u2019s testimony as to his prior consistent statement. Furthermore, Bura\u2019s testimony was in response to the defense counsel\u2019s suggestion of a motive to falsify. Evidence of a prior consistent statement is admissible to rebut an inference of a motive to falsify when that statement was made before the motive came into existence or before the time of the alleged fabrication. (People v. Clark (1972), 52 Ill.2d 374, 288 N.E.2d 363; Lyon v. Oliver (1925), 316 Ill. 292, 147 N.E. 251; Cleary, Handbook of Illinois Evidence \u00a79.12 (2d ed. 1963).) Any motive to falsify that existed at the time of trial would have existed at the time of the prior consistent statements on November 26, 1972. The prior consistent statements of Bura and Colon coupled with the witnesses\u2019 statements that they feared the defendant were taken by the trier of fact to sufficiently or insufficiently explain their prior inconsistent statements. We are of the opinion that the trial court\u2019s admission of these witnesses\u2019 prior consistent statements did not amount to reversible error.\nDefendant asserts that the trial court erred at numerous times in refusing to limit the prosecution\u2019s closing argument to the evidence.\nDefendant maintains that the prosecutor wrongly argued there was not evidence of any aggression by the victim. Defendant\u2019s own testimony states only that the victim picked up the bar stool. The prosecutor in-traduced a statement of the defendant taken the day after the stabbing where the defendant stated that the victim \u201cpicked up a chair to hit me with and I stabbed him.\u201d Colon testified that the victim picked up the bar stool after he was stabbed. Two other witnesses did not contradict Colon\u2019s testimony. We are of the opinion it was harmless error for the prosecutor to insinuate there was no evidence of any aggression by the victim.\nDefendant insists that the court erred in allowing the prosecutor to state that the defendant admitted his part in the crime. The defendant only admitted the stabbing and claimed justifiable self-defense. This court believes that the reference to the defendant\u2019s admission of the crime was harmless error in view of the defendant\u2019s admission of the stabbing and the jury instruction on self-defense.\nDefendant contends it was error for the prosecutor to define and minimize his burden of proof. The trial court sustained defendant\u2019s objection to the prosecutor\u2019s discussion of a reasonable doubt. We have examined the record and do not believe that the prosecutor ever defined reasonable doubt, either before or after the timely objection of defense counsel. Therefore, defendant was not prejudiced by any minimizing of the burden of proof.\nDefendant claims that the prosecutor erroneously implied that defense counsel distorted the facts. The prosecutor answered defense counsel\u2019s summary of observations as to what the evidence consisted of. Further, there was no testimony that Madsen said he was going to hit the defendant with the bar stool. There was no evidence that the witnesses\u2019 testimony was given to protect the liquor license of the tavern. Therefore, we are of the opinion that the prosecution did not imply that the defense counsel distorted or misstated the facts. The prosecution merely answered defense counsel\u2019s observations.\nDefendant asserts that it was improper for the prosecution to argue motive when an instruction was given that the State is not required to prove a motive for the commission of the crime charged. The prosecutor argued that the defendant knew he went into the tavern to get Madsen, that he stabbed him because he had a grudge against him. Even if the State has argued the existence of a motive, because the State is not required to prove motive, a motive instruction should not be given to the jury. (People v. Enright (1912), 256 Ill. 221, 99 N.E. 936.) However, such error may be harmless in view of the overwhelming evidence against the defendant. (People v. Manzella (1973), 56 Ill.2d 187, 306 N.E.2d 16.) In the case at bar, the evidence against the defendant was overwhelming. We hold therefore that it was harmless error to argue motive in light of the jury instruction that the State need not prove a motive for the crime charged.\nDefendant maintains that the prosecutor\u2019s arguments concerning the size of the bar and the witnesses\u2019 prior inconsistent statements were not based on the evidence. We believe defendant\u2019s allegations are not what they purport to be. The trial court admitted into evidence People\u2019s Exhibit No. 2, a photograph of the tavern depicting the size of the bar. The photographs and testimony concerning the photograph served as a basis for the prosecutor\u2019s comments on the size of the bar. The prosecutor did not deny that the witnesses made any prior inconsistent statements. He argued that defense counsel did not bring out the differences in the witnesses\u2019 prior inconsistent statements. The record further shows that no instruction on prior inconsistent statements was offered. A defendant may not assign as error the failure of the trial court to give an instruction unless it was tendered. People v. Springs (1972), 51 Ill.2d 418, 283 N.E.2d 225.\nDefendant argues that he was not proven guilty of murder beyond a reasonable doubt. In People v. West (1971), 3 Ill.App.3d 106, 278 N.E.2d 233, discrepancies in the testimony of prosecution witnesses which are immaterial when considered in relation to the essentials of the crime alleged were held to be a matter for the trial court\u2019s determination. Minor discrepancies and inconsistencies will at most affect the credibility of the witnesses. (People v. Jordan (1967), 87 Ill.App.2d 338, 231 N.E.2d 630.) In the instant case, Raphael Colon was the only witness to the entire occurrence. He testified that Madsen, having been stabbed, screamed, walked away from the defendant, and picked up the bar stool. Flores testified that he did not see the stabbing, but heard a noise as the deceased knocked over a few bar stools and then picked up a bar stool. Bura testified that she saw both Madsen and the defendant raise their hands, that Madsen ran toward the end of tire bar, picked up a bar stool, dropped it, moved toward Bura, asked her to call an ambulance, and slumped to the floor. Defendant testified that he argued with Madsen, that Madsen picked up a bar stool, that he stabbed Madsen, left the tavern, and went home.\nThis court is of the opinion that any inconsistencies or contradictions in Colon\u2019s testimony were matters to be considered by the trier of fact. The testimony of Flores and Bura corroborated that of Colon as to the essentials of the crime. Therefore, this court will not overturn the trial court on the question of reasonable doubt.\nDefendant next maintains that the sentence of 20 to 60 years\u2019 imprisonment was excessive in that the trial judge did not indicate which circumstances called for a higher minimum. The defendant had a prior conviction for aggravated battery. Furthermore, the circumstances surrounding the crime indicate that the defendant walked into the tavern, ordered a drink, and stabbed tire victim for no apparent reason. Under the Unified Code of Corrections the trial judge may set a higher minimum term \u201chaving regard to the nature and circumstances of the offense and the history and character of the defendant.\u201d (Ill. Rev. Stat. (1973), ch. 38, par. 1005 \u2014 8\u20141(c)(1).) The trial judge was in a position to consider such factors arising in the course of trial and at the presentence investigation in imposing the sentence. (People v. Morgan (1974), 59 Ill.2d 276, 319 N.E.2d 764; People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673.) Therefore, we do not believe that under the circumstances of this case this court should disturb the sentence imposed by the trial court.\nThe judgment of the Circuit Court of Cook County is affirmed.\nJudgment affirmed.\nDIERINGER, P. J., and JOHNSON, J., concur.", "type": "majority", "author": "Mr. JUSTICE ADESKO" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Andrew J. Kleczek and Judith A. Stewart, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Marcia B. Orr, and Michael J. Goggin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Gilbert Rivera, Defendant-Appellant.\n(No. 60512;\nFirst District (4th Division)\nSeptember 24, 1975.\nRehearing denied October 15, 1975.\nJames J. Doherty, Public Defender, of Chicago (Andrew J. Kleczek and Judith A. Stewart, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Marcia B. Orr, and Michael J. Goggin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0500-01", "first_page_order": 526, "last_page_order": 532 }