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People v. Perez

OPINION FILED JUNE 4, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

ARTHUR PEREZ (IMPLEADED), DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. BRIAN B. DUFF, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

The State appeals from an order of the circuit court suppressing oral statements allegedly made by defendant, Arthur Perez. (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(1).) The State contends that the circuit court erred in granting defendant's motion to suppress because defendant was given his Miranda warnings before he made each statement.

A multicount indictment charged defendant and Antonio Perez with murder, burglary and armed robbery occurring on April 17, 1975. Defendant was taken into custody about 9:30 p.m. on October 12, 1975, outside a tavern in Chicago. The arrest was effected by Lieutenant Hensley and Detective Dulay of the Chicago Police Department and Investigator Nevergall of the Illinois State Police. The arrest was ostensibly predicated upon several outstanding traffic warrants. Defendant was then taken to Area 4 headquarters in Chicago, where he remained until the evening hours of October 13, 1975. Defendant was then transferred to a suburban police district for a court appearance the following day. The principal aspects of this case concern the events occurring while defendant remained at Area 4 police headquarters.

John Nevergall testified that an interview was conducted at police headquarters on October 12, 1975, about 10:30 p.m. Defendant was seated in an interview room, and he was handcuffed to the wall. About 10:30 p.m., Nevergall read defendant his Miranda rights from a card and gave defendant the card so he might read those warnings which were written in Spanish. Defendant, however, gave the card back and indicated that he understood his rights. Hensley then asked for defendant's personal property and obtained two rings; one ring had a diamond setting. In response to Hensley's inquiry at that time, defendant said he purchased the diamond ring about one year before from a Chicago jeweler. Nevergall's written report indicated that defendant refused to answer any further questions. Nevergall further testified that he and Hensley left the room. Nevergall returned about midnight and arranged for defendant to go to the washroom.

The record shows that about 1 a.m. the victim's daughter arrived at the police station and identified the diamond ring taken from defendant. Nevergall and Hensley returned to the interview room to ask defendant about the ring. They informed defendant of his Miranda rights, which defendant said he understood, and told defendant that he was suspect in a murder investigation. Hensley asked defendant if he wanted to speak about the diamond ring, but when defendant declined, both officers left the room.

About 11 a.m. on October 13, 1975, Nevergall again entered the interview room. An assistant State's Attorney was also present, who informed defendant of his Miranda rights and explained the reason for his detention. At noontime an assistant State's Attorney again advised defendant of his Miranda rights. Defendant stated that he understood, and defendant told them he had gotten the ring in question from another individual who had been taken into custody during the interim. This person's name was obtained from an address book taken from defendant's possession.

Nevergall next saw defendant about 9 p.m. that day and told him that a murder complaint had been lodged against him. Defendant was eventually transported to the Des Plaines police station where he was kept until his court appearance in Niles the following day, October 14, 1975.

Nevergall denied that defendant was physically abused in any manner, and defendant did not ask for the assistance of counsel at any time in this witness' presence. Nor was Nevergall aware if any attorney came to see defendant while he was at Area 4 police headquarters.

Lieutenant John Hensley substantially confirmed Nevergall's testimony concerning defendant's arrest, the conversation at 10:30 p.m. at the police station concerning the ring, and the fact defendant was advised of his Miranda rights before this discussion and indicated his understanding thereof. At 1 a.m., he and Nevergall returned to see defendant, who was again advised of his Miranda rights. Defendant was told he was a murder suspect because the ring taken earlier from defendant belonged to the victim and could not have been obtained by defendant as he previously indicated. Defendant then denied his prior account of how he gained possession of the ring and said that he purchased it several months ago from someone on the street. Defendant then said he did not want to speak further of the matter. After this conversation, Hensley had no further contact with defendant since the State police were conducting the investigation. Hensley stated that defendant was not abused by police.

Assistant State's Attorney Michael Epton testified at the hearing on defendant's motion to suppress statements, that he spoke briefly to defendant on October 13, 1975. He advised defendant of his Miranda rights but then left when defendant declined to say anything. This witness denied promising to help defendant if he cooperated.

Terry Sullivan was the supervising assistant State's Attorney in the Niles courtroom. He did not recall ever seeing defendant but explained that the volume of cases could have lessened his recollection.

Defendant testified that he had never been notified prior to his arrest that he was the subject of an outstanding traffic warrant. Defendant claimed that after his arrest he was questioned at least one dozen times by Nevergall, Hensley, Officer Shine or assistant State's Attorney Epton. Defendant denied anyone informed him of his Miranda rights, and he stated that he attempted to invoke his right to counsel many times during the time he was at the police station. Specifically, when Nevergall told him, "let me help," defendant said that he asked that the police contact his attorney. When the police then informed him that "it was a sinking ship" because witnesses implicated him, defendant asked to make a telephone call. Defendant also claimed that Nevergall prevented him from using the washroom. Defendant recognized Epton but denied Epton ever advised him of his Miranda rights. Defendant also said that during the evening of October 13, an attorney named Kaplan came to see him at the police station at the request of a friend. Defendant asserted that just before he was brought before a judge in the Niles courtroom, assistant State's Attorney Sullivan told him to "help himself." Defendant refused and Sullivan then purportedly hit him when he was brought before the judge.

On cross-examination defendant said that he was not hit or intimidated by any police officer. Defendant explained that he was referring to the ring, not identified as belonging to deceased, when he said he purchased that item from a jeweler a year before his arrest. He admitted making a statement about 1:30 a.m. on October 13, 1975, when he was informed that he was going to be charged with murder and after he requested counsel. Defendant told police that he bought the victim's ring from another man whose name he gave to police.

Lieutenant Hensley testified in rebuttal that defendant was advised of his Miranda rights; that he never heard defendant request the assistance of counsel; that he only entered the interview room on two occasions; and that he never saw Officer Shine in the interview room. Further rebuttal testimony was offered by Investigator Nevergall who stated that defendant never asked to speak to counsel; and that he did not recall seeing defendant speak to any counsel except the assistant State's Attorney. Officer Thomas Shine testified in rebuttal that he knew defendant; that he commenced his shift of duty at 8:30 a.m. on ...


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