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People v. Reyes

OPINION FILED DECEMBER 9, 1981.

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

v.

RAYMOND REYES ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR CIESLIK, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Defendants Raul Gonzalez, Raymond Reyes and Jose Murrillo were charged in a joint indictment with murder and attempt armed robbery. Gonzalez and Reyes were tried by a jury and Murrillo was tried by the court. The jury found Gonzalez guilty of murder and attempt armed robbery. It found Reyes guilty of attempt armed robbery, but not guilty of murder. Murrillo was also found guilty of attempt armed robbery. Gonzalez was sentenced to a term of 25 to 50 years imprisonment for murder and two to six years imprisonment for attempt armed robbery. Reyes was sentenced to two to six years imprisonment. Gonzalez and Reyes now appeal.

The facts established at trial follow. At the intersection of Fullerton and Ridgeway streets in Chicago on February 23, 1976, Timothy Glover was shot. When police officer Joseph Vegas arrived at the scene at approximately 6:30 p.m., Glover was lying on the sidewalk in front of Hendricksen's drugstore which is located on the northeast corner of that intersection. Glover was transported to a hospital, where he died.

Several young men were in the vicinity of the drugstore at the time of the shooting, including the victim and State's witnesses Thomas Stump, Robert Shaw, Jay Dwyer, and John Mikucki.

Thomas Stump testified that shortly before 6:30 p.m., he left the drugstore and went to a basketball court located three doors east of the drugstore. He was playing basketball when he heard a shot. Then he ran into the alley behind the basketball court and looked west. He observed two men standing in the alley near Ridgeway. Defendant Reyes was one of these men. The man with Reyes, whom Stump was unable to identify, had a rifle and wore a long green coat. The two men then moved forward in the direction of the drugstore so that they were out of his eyesight. Then he heard five shots fired, and after that, he saw Reyes and the other man running north on Ridgeway. The other man had the rifle. Subsequently, Stump went to the scene in front of the drugstore. A short time later, he found five empty shell casings near where the alley intersected Ridgeway. He gave them to a police officer.

Robert Shaw testified that at approximately 6:30 p.m., he was standing outside the drugstore. Glover was inside. While standing there he saw two male Puerto Ricans approach from the south and walk by the drugstore. One was wearing a long, green trench coat and the other a dark jacket. Shaw entered the drugstore and informed individuals therein that two Puerto Ricans were walking north on Ridgeway. Then he exited the drugstore with John Mikucki. Mikucki walked north on Ridgeway in the middle of the street, and Shaw walked in that direction on the sidewalk near a building and then walked out toward the street. Shaw then saw the two Puerto Ricans step from behind a building into the middle of an alley adjacent to the building. The one in the trench coat raised his right hand, and Shaw heard a shot. Shaw then ran southwest. As he was running, he heard four or five other shots. Shaw identified Raul Gonzalez as one of the two individuals who approached the drugstore.

Jay Dwyer testified that at 6:30 p.m., he was inside the drugstore. He heard a shot. At that time, Mikucki, Shaw and Glover were outside the drugstore. Then Dwyer ran outside and around the corner so that he was facing north on Ridgeway. He saw two males near the alley which intersects that street. One had an afro and the other a long green army coat. At this time, Timothy Glover was immediately in front of Dwyer, on Ridgeway facing north. Dwyer heard approximately five shots, and he ran back around the corner. He saw Glover also coming around the corner. Glover was stumbling, and he fell to the ground.

John Mikucki testified that at 6:30 p.m. he was inside the drugstore. He observed two Puerto Rican males walk past the drugstore and proceed north on Ridgeway. One was wearing a long army training coat and the other a dark jacket. He told others inside the drugstore that there were two male Puerto Ricans walking down Ridgeway. Mikucki went outside, and Robert Shaw went with him. Mikucki walked into the middle of Ridgeway and proceeded north. He did not see the two Puerto Rican males. When he was approximately 20 feet from the alley, the two individuals he had seen stepped out from the alley and the corner of a building. They said, "I.G. Love," but Mikucki did not say anything. Then Mikucki heard a shot fired in his direction, but he did not know who fired it. He turned and ran behind a parked car on the west side of Ridgeway. He observed the two individuals walk a few feet south. Then he saw a long black object underneath the coat, apparently a reference to the long army training coat. He heard five more shots and started running south on Ridgeway toward Fullerton. Mikucki identified defendants Reyes and Gonzalez as the two individuals he had observed, but he could not identify which one fired the weapon.

Michael Wilson testified that he lived near the drugstore in February 1976. At 6:30 p.m. on February 23, 1976, he was walking south down the alley between Ridgeway and Hamlin streets with his dog. He observed a car in the "T" intersection of that alley and an east-west alley that runs parallel to Fullerton and is located immediately north of that street. As he passed the car and turned west into the east-west alley, he heard a shot. He turned so that he was facing east, and he observed a man wearing a long green coat firing a rifle. As Wilson continued down the alley, he heard more shots fired.

Police officer James Adams testified that on February 23, 1976, he arrived at the crime scene in response to a radio call of "shots fired." While there, a youth approached him and handed him five empty Imperial .3240 caliber rifle cartridge casings. Adams also observed one Officer Noonan recover another spent Imperial .3240 cartridge casing.

Police officer Richard Fritz testified that he and his partner, Leonard Wojewocki arrested the defendants on February 23, 1976. He testified that a citizen told him and his partner that he had seen two males run into a nearby school yard and that one was carrying a rifle. Otherwise, his testimony regarding the circumstances of the arrests is substantially similar to that given by Wojewocki at the hearing on defendant's motion to quash arrest described later in this opinion.

Testimony by Kelly Glover, the victim's brother, revealed that Timothy Glover that evening was wearing a Calhoun Park High School sweater. Donald Smith of the Chicago police department, an expert in the field of firearms identification, testified that he examined the rifle recovered from defendants Gonzalez and Reyes and the six shell casings recovered at the scene of the slaying. It was his opinion that these shell casings could only have been fired from that rifle. Smith also testified that the rifle was designed in such a way that it must be cocked by its user each time it is fired.

Assistant State's Attorney Michael Robbins testified that on February 23, 1976, both Gonzalez and Reyes made written statements to him. In the course of his testimony, Robbins read these statements to the jury.

Gonzalez in his statement stated that on the evening of February 23, 1976, he was in the area of Fullerton and Ridgeway streets. At that time, he was wearing a long green coat and he had a rifle with him. His purpose for going to that location with the rifle was to get his sweater, which had been taken from him in the summer of 1975. Raymond Reyes, a friend, went with him. They went to the corner where the drugstore was located because Gonzalez had seen the sweater there at approximately 4 p.m. on the same day. When they arrived, Gonzalez looked in the drugstore and saw approximately seven young men. Gonzalez and his friend started to run. At that time, the rifle hit a wall and fired. Gonzalez started to run again, and then he fired three or four times while trying to run. After each shot, he cocked the rifle again. He ran across the street to what he believed was a church and school. He had the rifle when he was arrested by the police.

Defendant Reyes, in his statement, said that he met Gonzalez at approximately 5:30 or 6 p.m. on February 23, 1976. At that time, Gonzalez had a rifle with him, and Gonzalez was wearing a long green army coat. The rifle was under the coat. Their purpose for going to the intersection of Fullerton and Ridgeway streets was to get Gonzalez' sweater. Their plan was to wait for the people to come out (apparently a reference to the drugstore) and then to hold them up with Gonzalez' rifle. He and Gonzalez went to that intersection. They walked past some people there, and then these people began to chase them. These people had the sweater. At this time Gonzalez fired the rifle. Reyes heard four shots as he waited for Gonzalez in the alley. He ran with Gonzalez to a school yard and was arrested. Reyes also stated that Gonzalez explained the plan to him when they were walking to the intersection of Fullerton and Ridgeway streets.

After both defendants' statements were read, the trial judge instructed the jury that each statement was to be considered only against the individual who made it and not against the other individual.

David Shields of the Chicago police department was the sole witness called by the defendant Gonzalez. He testified to alleged prior inconsistent statements made by State's witnesses John Mikucki, Thomas Stump and Robert Shaw. Defendant Reyes chose not to present any evidence.

For the reasons set forth below, we affirm in part and reverse and remand in part. We first address the arguments raised by defendant Gonzalez.

I

Defendant Gonzalez first contends that the trial court erred in admitting his statement into evidence. He makes four arguments in support of this contention: that his statements were given subsequent to an unlawful arrest; that his written and oral statements were obtained by coercion; that the defendant had not been properly advised of his constitutional rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602; and that the trial court erred in conducting separate hearings before different judges on his motion to suppress statements and his motion to quash his arrest.

First we consider the legality of defendant's arrest. Gonzalez contends that his statement was inadmissible because it was the fruit of an unlawful arrest, that the police lacked probable cause for the warrantless arrest. At the hearing on Gonzalez' motion to quash the arrest, the sole witness on the issue of probable cause was Chicago police officer Leonard Wojewocki, the partner of Officer Richard Fritz. Wojewocki testified that on February 23, 1976, at approximately 6:15 p.m., he and his partner received a message over police radio that shots had been fired at Ridgeway and Fullerton streets. They were in a marked police car and approximately five blocks from that location. Responding to the call, they proceeded south on Ridgeway. Before reaching Fullerton, they were stopped by a citizen who was not known to the officers and whose identity was still not known at trial. This unidentified citizen told the officers that two youths, one wearing a long green jacket and carrying a rifle, had just run into the school yard. As they were talking with the citizen, the officers received a broadcast over the police radio that a boy had been shot. They proceeded into the school yard which was located two or three hundred feet from the intersection of Fullerton and Ridgeway, and ordered the men to come out of an alcove. Reyes came out, and when the order was repeated, Gonzalez came out. Wojewocki conducted a protective search, and he and his partner placed the subjects in custody. At the time of this arrest, Officer Fritz found a rifle leaning against a wall in the area that Gonzalez and Reyes exited. Wojewocki testified that there were no other people in the school yard, and that it was completely dark in the area where he and his partner found Gonzalez and Reyes.

Gonzalez points out that the identity of the citizen who gave the police the information leading to their arrest remains unknown. He contends that the trial court was required to determine whether the information coming from the informant was based upon his firsthand knowledge. This, he says, was not done in the motion to quash arrest hearing, and that on the basis of the scant evidence adduced at that hearing, it was not proper for the judge to find that there was probable cause to arrest the defendants.

• 1 A reviewing court, in passing upon a trial court's ruling that probable cause existed to arrest a defendant, may consider testimony adduced at trial as well as at the pretrial hearing. (People v. Thompson (1981), 93 Ill. App.3d 995, 1002, 418 N.E.2d 112.) Where evidence which establishes the legality of an arrest is received at trial prior to the introduction of the evidence which was the subject of the motion to suppress, the defendant cannot avail himself of any error made in this regard on the motion to suppress. (People v. Braden (1966), 34 Ill.2d 516, 520, 216 N.E.2d 808.) In the trial below, Officer Fritz testified to the facts surrounding Gonzalez' arrest before Gonzalez' statement was admitted and read to the jury. Therefore, we have considered both the trial testimony of Officer Fritz and the pretrial testimony of Officer Wojewocki in evaluating defendant's argument. Officer Fritz testified at trial that the citizen told them that he had seen two males run into a nearby school yard and that one of them was carrying a rifle and wearing a dark green coat, indicating that the information given to the policemen was from firsthand knowledge.

• 2 Gonzalez also contends that the arresting officers were not justified in relying upon information received from the unidentified citizen informer. However, the officers were not relying solely upon information from this citizen. In addition, the officers had received reports of a shooting over the police radio. Police officers generally may act upon such information. (People v. McElroy (1976), 44 Ill. App.3d 1047, 1050, 358 N.E.2d 1180.) When the officers entered the school yard, they found Gonzalez and Reyes hiding in an alcove in an area that was completely dark. Gonzalez was wearing a dark green coat. There were no other people in the yard and the rifle was found nearby. Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a belief in a man of reasonable caution that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill.2d 96, 101, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L.Ed.2d 467, 101 S.Ct. 564.) We hold that there was ample evidence to establish probable cause.

Gonzalez also argues that his statements were not voluntarily given, noting that he had no prior experience with the law and he was only 17 years of age at the time of his arrest. In People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, cert. denied (1973), 412 ...


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