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People v. Cruz





Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.


Following a jury trial, defendant was convicted of murder and two counts of attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a), 8-4, respectively), and sentenced to concurrent terms of 40 years, 20 years and 20 years in the Illinois Department of Corrections. Defendant appeals, contending that: (1) the trial court erred in denying motions to quash arrest and to suppress his confession; (2) defendant was denied a fair trial when the prosecution showed an inflammatory photograph of the deceased to the jury in violation of a ruling in limine; and (3) the State's inflammatory and highly improper statements made during opening statement and closing argument prejudiced defendant's right to a fair trial. For the reasons that follow, we affirm the trial court's judgment.

On August 9, 1980, approximately 1 a.m., while walking east on Addison Street, near Wrigley Field, in Chicago, Jose Ortiz, Carmen Santana and Michael Parades were shot by the front seat passenger of an automobile traveling west on Addison. As a result, Ortiz died from a gunshot wound to the neck and Santana and Parades suffered multiple gunshot wounds. Later that day, an unidentified informant called the Chicago police and told them that Jose Rivera, a member of the Puerto Rican Stones street gang, knew something about the shootings. Based on the informant's tip, approximately 7 p.m. that evening, the police arrested Rivera as a suspect in the shooting. While in custody, Rivera told the police that he was at a party at Mario Gonzalez' apartment the previous evening where he overheard Gonzalez, Frank Perez and defendant discussing their intention to "burn some birds," which is street language for "shoot some members of the Latin Eagles." Rivera further stated that Gonzalez and defendant left the party approximately 12:30 a.m. The shootings occurred a half hour later approximately two miles from Gonzalez' apartment. As a result of Rivera's statement, the police arrested Gonzalez, Perez and defendant, without a warrant, in the early morning hours of August 10.

Prior to trial, defendant moved to quash his arrest on the ground that information leading to his arrest was obtained from an unreliable informant who himself was under arrest as a suspect in the shootings at the time he gave the exculpatory statement. Further, defendant moved to suppress his confession on the ground that there had not been an attenuation of the improper arrest at the time he gave his statement. Upon request by the State, arguments on both motions were heard concurrently.

Investigator Raymond Siwek of the Chicago police department testified that on August 9, approximately 7 p.m., he and his partner, Investigator Konior, located Jose Rivera at the corner of Barry and Wilton in Chicago and arrested him as a suspect in the shootings. While in custody, Rivera told the investigators about the conversation he had overheard in Mario Gonzalez' apartment. After speaking with Rivera, Siwek reviewed the case report which contained a description of the vehicle involved in the shootings as well as a description of the occupants of the vehicle, obtained photographs of Gonzalez, Perez and defendant from the police files and proceeded to Gonzalez' apartment where Rivera said Gonzalez, Perez and defendant could be found. Approximately 1 a.m., August 10, defendant exited the apartment with three other individuals, entered an automobile, and drove away. Siwek and Konior stopped the automobile about a block away, identified themselves, asked defendant to identify himself, arrested him and advised him of his rights. After a transport vehicle arrived to take defendant to police headquarters, Siwek and Konior returned to their surveillance posts in front of Gonzalez' apartment and continued to observe until assisting units arrived, at which time they arrested Gonzalez and Perez.

Upon their return to police headquarters, approximately 3 a.m., after reading defendant his Miranda rights, Siwek and Konior interviewed him for the first time. Later that evening, approximately 8:30 p.m., Siwek again advised defendant of his rights and interviewed him in Konior's presence. At Siwek's third interview with defendant, approximately midnight, defendant confessed to the shootings, after which he requested and was granted permission to make a phone call. To Siwek's knowledge, defendant was never handcuffed, threatened, physically abused or promised leniency. Further, at no time did defendant complain to him of mistreatment. On cross-examination, Siwek testified that prior to Rivera's arrest, the police had had no information as to the names of other possible suspects.

Detective Gerald Mahon of the Chicago police department testified that on August 10, 1980, he interviewed defendant at police headquarters at 4 a.m. and at 11 a.m. Defendant never requested permission to make a telephone call, and never complained in any manner. On August 11, approximately 2 a.m., Mahon again interviewed defendant in the presence of Assistant State's Attorney Sherwin. At that time, Mahon asked defendant if he was willing to make a statement and also allowed him to make a phone call. Mahon never saw defendant verbally or physically threatened in any way.

Assistant State's Attorney Michael Sherwin testified that he interviewed defendant approximately 6:30 p.m. on August 10 in the presence of Officer Manion and again on August 11, approximately 1 a.m., in the presence of Investigator Konior. At no time did defendant complain about mistreatment or state that he was either hungry or thirsty. After the 1 a.m. interview, defendant requested and was granted permission to make a phone call. While he was making the call, Sherwin summoned a court reporter to take defendant's written statement. However, no written statement was ever given.

Thereafter, the State rested on the motion to quash arrest and stipulated that the automobile in which defendant was riding at the time of his arrest had committed no traffic violations and there were no arrest warrants issued. Following final arguments on the motion to quash arrest, the trial court denied the motion on the following grounds: (1) Rivera was "just a person the police happened to know"; he was not an informant whose reliability must be established; (2) the close time and distance link between defendant's departure from the party and the shootings; and (3) the description of the occupants contained in the police report coupled with Rivera's statement.

Testimony then continued solely as to the motion to suppress defendant's confession. In this regard, Investigator John Konior of the Chicago police department testified that he had interviewed defendant twice at police headquarters on August 10, approximately 3 a.m. and 8 p.m., and again on August 11, approximately 1:30 a.m. Defendant was advised of his rights at every interview, was never threatened, physically abused or promised leniency. Further, defendant never requested a lawyer. At the conclusion of testimony, the trial court denied defendant's motion to suppress on the ground that there had been no evidence of involuntariness. Defense counsel then recommenced arguments on the motion to quash arrest, emphasizing that Rivera was not an ordinary citizen and his information had not been corroborated. In affirming its denial of the motion to quash arrest, the trial court stated:

"[Rivera] was taken to the police station at that time because — well, I don't know the officers' reason, but the facts were that nobody had been arrested. * * * There is really nothing in the evidence to establish that [Rivera] was a person whose reliability had to be established, as would be the case with an informer in the classic sense, so this was not the kind of person giving information whose reliability had to be established or independently corroborated."

At the commencement of trial, outside the presence of the jury, defendant presented two motions in limine: (1) a request that the State be instructed not to refer to gangs, either in statements given by defendant or by witnesses; and (2) a request that the State be barred from cross-examining witnesses as to their gang membership. In response to the first motion, the State argued that limiting reference to gangs would artificially keep probative evidence from the jury because gang affiliation was the motive for the shooting. Further, the State planned to relate the substance of defendant's confession which referred to gang retaliation as motive to the jury during its opening statement. The court ruled that the State could refer to gang affiliation in its opening statement only to the extent that the comments would later be proven by the evidence. However, the State could not "set up or dwell upon" gang superstructure, territories or individual gang membership as the real structure of the case.

Regarding defendant's section motion, the court ruled that the propriety of cross-examination regarding gang membership is better decided as the questions themselves arise. In response, defendant stated that he would have a standing objection to any reference about gangs.

Carmen Santana, a victim of the shootings, then testified that on August 9, 1980, approximately 1 a.m., she, Jose Ortiz and Michael Parades were walking west on Addison, near Sheffield, in Chicago, when a motorcycle drove past them. Although none of the three knew the people on the motorcycle, Michael waved "Hi" in response to their greeting. Immediately after the motorcycle passed, a car pulled up next to them and the front seat passenger started shooting at them. Michael was hit first. Carmen was shot in the arm, twice in the buttocks and once in the back. When she was able to get up, she turned around and saw Jose lying on the ground, holding his neck. She ran toward Jose and stayed with him while Michael left to find help. When the police arrived, they took Carmen and Michael in a squad car to Illinois Masonic Hospital. The following day, the police picked up Carmen and drove her to police headquarters to view a lineup. However, she was unable to identify her assailant.

On cross-examination, Carmen stated that prior to court appearances relevant to this case, she had never seen defendant. During the shooting, the car was stopped for approximately 10 seconds. She noticed that the car was green and that two people were in the front seat.

Next, Michael Parades, a victim of the shooting, testified to substantially the same facts as did Carmen Santana. On cross-examination, Michael stated that he had seen the back end of the dark green vehicle as it was driving away.

Next, Linda Odom testified that on August 8, approximately midnight, her mother awakened her to tell her that Mario Gonzalez had just been knocking at their door. Odom's mother then asked her to go to Gonzalez' apartment immediately and tell him not to come over at midnight anymore. Odom drove the three blocks to Gonzalez' apartment in her 1969 Dodge Polara. When she arrived there, she noticed that a party was in progress in Mario's second floor apartment. She did not go up to the party. Rather, Mario came down to the backyard and asked Odom if he could use her car that night. When she said, "no," he slapped her in the face. She slapped him back, and he slapped her again and took the car keys out of her jacket pocket. She followed him out to her car and saw Gonzalez get into the driver's seat and defendant, who was wearing glasses at the time, get into the front passenger seat. Approximately 20 minutes later, Gonzalez returned to his apartment alone. Odom then got her keys and drove home. On cross-examination, Odom stated that she arrived at Gonzalez' apartment approximately 12:20 a.m.

Next, Dawn Ellis testified that on August 9, 1980, approximately 1 a.m., she and several friends were sitting on the front steps of her house at 3625 North Sheffield, Chicago, when a green car, traveling north on Sheffield, stopped for approximately 20 seconds in front of her house while the front seat passenger looked at Ellis and her friends. The car then drove north one block to Waveland, turned around and proceeded south on Sheffield. Once again, the car stopped in front of Ellis' house and she saw the passenger looking toward them through the driver's window. When he shook his head "no," the car continued south toward Addison and Sheffield, then turned right on Addison, heading west. Within seconds after the car turned the corner, Ellis heard gunshots and ran to the corner of Sheffield and Addison where she saw Carmen, Jose and Michael lying on the ground. After the police took Carmen and Michael to the hospital, Ellis drove to the hospital with a friend to check on Jose's condition. The following day, the police drove Ellis to headquarters to view a lineup from which she identified defendant as the passenger of the automobile used in the shooting. Ellis further stated that she recognized defendant from having seen him driving around the neighborhood on previous occasions.

On cross-examination, Ellis testified that while at the hospital on the morning of August 9, she told the police about the automobile in which defendant had been riding, but could not recall whether she had described defendant to the police. Defense counsel then queried Ellis as to an interview he had had with her on August 19, 1981. Ellis denied having stated at that time that defendant had been driving the ...

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