WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOHN S. BOYLE, Judge, presiding.
Rehearing denied May 19, 1964.
Defendant, Benedict DiGerlando, was convicted of the crime of murder by a jury in the criminal court of Cook County and sentenced to the penitentiary for his natural life.
Defendant and Grace Valtierra, Robert Chan and Danny Escobedo were jointly indicted for shooting Manuel Valtierra in the back and killing him by a bullet as he entered the rear door of the premises on January 20, 1960, at 3703 West Lexington in Chicago where he lived in a second-floor apartment with his wife, said Grace Valtierra, and their five children. Grace was stepmother of three of the children and sister of Danny Escobedo.
It was contended that prior to January 20, 1960, the defendant agreed and conspired with Grace Valtierra, wife of decedent, Robert Chan and Danny Escobedo, brother of Grace Valtierra, to murder Manuel Valtierra; that on the day before the murder, defendant, Robert Chan and Danny Escobedo were together and made phone calls to Grace Valtierra and went in a car to the vicinity where Manuel Valtierra lived; that some money was given to the three men in the car, defendant, Escobedo and Chan; and that on January 20, 1960, Chan pointed out decedent to defendant who shot at him five times with a .38 revolver.
On January 30, 1960, defendant was arrested at his home. This was some 10 days after the shooting. The other three parties involved were also arrested that same night. Arraignment was held February 26, 1960, at which time confessions made by the respective defendants, DiGerlando, Chan and Escobedo were furnished them. DiGerlando was furnished a copy of a 6-page written statement made by him to the State's Attorney's office, a copy of a 2-page signed confession he gave police, and a list of witnesses present when he made an oral confession. All defendants entered pleas of not guilty. On March 28, 1960, a list of witnesses was filed and on May 31, 1960, a supplemental list of witnesses.
On June 27, 1960, defendant DiGerlando, moved for a severance which was granted.
Some seven months after the arraignment, on September 16, 1960, the State's Attorney's office requested leave to furnish DiGerlando with a list of witnesses to an oral confession he made to Captain Flynn, policeman, the only name furnished being that of Captain Flynn. Over objection of counsel for defendant, the name was received.
Defendant made a motion to suppress evidence of guns held by the State's Attorney, taken from the basement premises of defendant allegedly without consent or search warrant, on the basis of a violation of defendant's rights under the fourth amendment to the constitution of the United States and section 6 of article II of the constitution of Illinois. After hearing evidence on this motion, the court denied the same. Also, defendant filed a motion to suppress statements of defendants allegedly taken under duress. After hearing evidence, the court denied this motion.
Defendant testified at the trial that on the way to headquarters in the car he was asked by officer Montejano if he knew Robert Chan, Daniel Escobedo, Grace Valtierra or Manuel Valtierra. He said he did not know Manuel but he knew the others slightly. He said the last time he saw Escobedo was some months back, but a tavern operator testified he saw them together the day before the shooting. At headquarters defendant was taken into a room 10 by 20 feet and was handcuffed to a chair. Several persons were brought in and Montejano and three other officers questioned him. He says that during a period of 20 minutes, Montejano kicked over his chair by reason of which he fell to the floor; that four officers beat him and Montejano put a telephone book along his face and on top of his head and another officer hit the book about five times; that the officers struck the back of his neck and his ribs and chest; and that Montejano squeezed his penis and testicles. Captain Flynn then came into the room and said it would go easier with him if he co-operated. Flynn then typed a statement and DiGerlando signed it. Defendant sat handcuffed to the chair for about 30 minutes to an hour. Flynn and other officers came in and told him Escobedo and Chan had said he killed Valtierra. Flynn typed out another statement saying defendant killed Valtierra. At 12:00 midnight he made another statement which was not signed. He was given nothing to eat or drink until after he made the last statement. His age was 18 years. He claims his jacket was torn in the fray. The statements he made conflicted in numerous details but all statements except one confessed the killing. In one he said he was hired by the wife, Grace, to kill her husband for $500.
The same night, DiGerlando made a statement confessing guilt before a court reporter in answer to questions by Cooper, an assistant State's Attorney.
The next day, DiGerlando accompanied the officers to look for the gun which he said he had thrown in the lake. When they arrived at the lake, he said two guns were hidden in his basement above the heater. He told them just where the guns were and to go get them. The officers went to the place to which defendant directed them, which was a shoe store where Anthony, DiGerlando's brother, and parents also lived. One of the officers testified that DiGerlando told them to go down in the basement and they would find the guns hidden over a water heater and that he did not want to face his family. The officer further testified he and officer Montejano went to the door of the store, saw DiGerlando's brother there and told him they were police officers and that his brother had been involved in a shooting and had told him to come over there and recover the guns in the basement. The brother of defendant testified he asked the officers if they had a warrant; however, the officers denied he asked for any warrant. The officers further testified the brother led them down the steps into the basement, removed obstacles standing in their way and was present when the officers took the guns.
DiGerlando also said he changed the barrel on the gun after the shooting. This was corroborated by Stanley Gora, a part-time salesman at the gun shop.
In rebuttal all of the police officers denied there was any coercion of defendant in making the confessions or that ...