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People v. Perez

OPINION FILED MARCH 7, 1983.

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

v.

ANTHONY PEREZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Frank B. Machala, Judge, presiding. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Defendant Anthony Perez was found guilty of murder following a jury trial, and sentenced to a term of natural life. Defendant appeals, arguing: (1) his rights to remain silent and to counsel were not scrupulously honored; (2) the trial court erroneously restricted cross-examination of a key State witness and therefore the jury could not fairly assess the weight to be given defendant's admission; (3) he was deprived a fair trial by the manner in which the prosecution presented defendant's confession to the jury; (4) the trial court erroneously admitted into evidence a police investigator's testimony regarding powder burns on the victim's wounds, thereby prejudicing defendant; (5) he was denied a fair trial due to the prosecutor's improper remarks; (6) he was denied due process when he was sentenced to a term of natural life because the trial judge told him, prior to trial, that the maximum sentence he could receive if he pleaded not guilty, was 80 years; (7) the case must be remanded for a new sentencing hearing because defense counsel was not afforded the presentence report in the requisite period of time; (8) the trial court abused its discretion by sentencing defendant to natural life because the evidence failed to prove that defendant participated in the mutilation of the deceased; and (9) the discretion vested in the trial judge to sentence a defendant to a natural life term violates the equal protection clause.

We affirm.

The frozen body of Victor Figueroa was discovered on February 23, 1979, by police officer James Tagliere in the gangway at 1027 N. Francisco Street, in Chicago. The victim had been shot. His penis had been amputated and had been forced into the victim's mouth. Six .38-caliber cartridge cases were found on the windowsill above the victim. A gold chain with a Playboy bunny charm was found next to the body. The chief medical examiner of Cook County testified that an autopsy confirmed three bullet wounds to the chest and the amputation of the penis. The cause of death was a bullet wound to the heart.

In August 1976, Figueroa had been a witness for the State in the murder trial of Julio Munoz, Sr., who was convicted and sentenced to 75 to 150 years. Figueroa had received so many threats on his life from members of the Latin Kings street gang that he was relocated for protection.

Police Officer Jeremiah Lynch was assigned to investigate Figueroa's murder. After several days, information was obtained which led to the arrest of defendant. After his arrest, defendant was given his Miranda warnings on six occasions during the transportation and interrogation. The circumstances surrounding defendant's waiver of his rights will be discussed below.

While in custody, defendant initially denied any involvement in Figueroa's murder. However, after making a phone call, he told Officer Lynch that he and another individual, known only as "Black Jack," had decided to kill Figueroa because he had testified against the father of one of the Latin Kings. Defendant's confession was read to him and he signed it. Defendant's motion to suppress his oral and written statements was denied at trial. The trial judge allowed the State to read defendant's statement to the jury and it was admitted into evidence. The written statement was also given to the jury.

Prior to the pretrial conference, the trial judge informed defendant that the maximum sentence which could be imposed for the crime of murder was 80 years. A plea bargaining session resulted in the State offering defendant 50 years in exchange for a guilty plea. Defendant rejected the State's offer and decided to exercise his constitutional right to proceed to trial. After trial, defendant was found guilty and sentenced to a term of natural life.

First, defendant contends that his rights to remain silent and to have counsel present were not scrupulously honored. We disagree.

Defendant received the first set of Miranda warnings from Officer Sherry, while being transported from the scene of the arrest to headquarters. Later, defendant received Miranda warnings from assistant State's Attorney Kopec. When defendant responded, "I don't want to talk to you right now. I want to make a phone call," Kopec immediately stopped his questioning and left the room. Defendant then told Lynch that he would be willing to tell the officers what happened after he made the phone call.

After making the phone call, once again defendant was informed of his rights, stated that he understood them and proceeded to disclose, in detail, how he murdered Figueroa. Kopec asked defendant if he would repeat his confession in the presence of a court reporter. Defendant agreed. A court reporter was called and recorded defendant's confession. Defendant then gave Kopec a statement which was substantially the same as the statement he had previously given to Lynch. Defendant stated that, "I shot Playboy, but I didn't cut off his dick." Further, the statement revealed that defendant had been in a bar at 1100 North California when the victim came into the tavern hoping to buy drugs. He and Black Jack lured the victim to a gangway a short distance from the bar. Black Jack pretended to fall on the ice, dragging the victim down with him. Defendant then told the victim that his days were over and fired six rounds from a .38 revolver at the victim. Black Jack reloaded the weapon for defendant and told defendant to fire the seventh bullet into the victim's heart, which he did. The pair then fled the scene.

Kopec then read the statement to defendant and defendant signed it. During trial, the statement was read to the jury by two assistant State's Attorneys.

The Miranda decision established that a defendant may waive his rights to remain silent and to have an attorney present, provided the waiver is made voluntarily, knowingly and intelligently. Interrogations must cease when the accused indicates that he wishes to remain silent. Likewise, if he indicates that he wishes to consult with an attorney before speaking there can be no further questioning. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602.) However, subsequent decisions hold that admissibility of statements obtained after the accused asserts his right to remain silent depend upon whether his right to cut off questioning was scrupulously honored. (Michigan v. Mosley (1975), 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321.) It is equally clear that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880.) Furthermore, the United States Supreme Court has emphasized three circumstances which tended to show that defendant's right of silence was scrupulously honored: (1) the passage of significant time between questioning, (2) a different officer conducted the second questioning and gave new Miranda warnings, and (3) the fact that the second questioning involved a completely different crime. (Michigan v. Mosley (1975), 423 U.S. 96, 106, 46 L.Ed.2d 313, 322-23, 96 S.Ct. 321, 327-28.) This court has held that the fact to determine the voluntariness of a statement is whether it was made without compulsion or inducement. People v. Savory (1980), 82 Ill. App.3d 767, 403 N.E.2d 118.

• 1 It is our opinion that defendant's rights were scrupulously honored. He was given Miranda warnings on six separate occasions by "different authority," Officer Lynch and assistant State's Attorney Kopec, as required by Mosley. Moreover, here as in People v. Goodrich (1977), 48 Ill. App.3d 141, 362 N.E.2d 798, defendant's initial statement to Kopec indicated that he did not wish to discuss the crime until after he had made a phone call. Under Goodrich, this must be considered an "invitation to talk later," after the phone call. If so interpreted, this fact further establishes that defendant's rights were scrupulously honored. Goodrich.

• 2 Second, defendant contends that the jury was not able to determine fairly the weight to be given defendant's confession because he was not allowed to cross-examine Investigator Lynch ...


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