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People v. Caballero





Appeal from the Circuit Court of Cook County, the Hon. James M. Bailey, Judge, presiding.


Rehearing denied June 4, 1984.

Defendants, Juan Caballero and Luis Ruiz, were charged by information filed in the circuit court of Cook County with the murders of three teenage males, Michael Salcido, Arthur Salcido, and Frank Mussa. Additionally, charges of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10-3(a)) regarding each victim were filed against the defendants. Pursuant to a severance, the two defendants were tried before one judge supervising two separate juries. Both defendants were convicted on all counts. Separate sentencing hearings were held for each of the defendants at which the imposition of the death penalty was requested. Both defendants were sentenced to death. Both sentences were stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court under Rule 603 (87 Ill.2d R. 603). We have previously considered and affirmed the conviction and sentence of death for Luis Ruiz. (People v. Ruiz (1982), 94 Ill.2d 245.) In this opinion, we consider only the convictions and death sentence of Juan Caballero. We affirm both the murder convictions and the sentence of death.

One of the victims, Michael Salcido, was a Chicago resident. Following a visit to Princeton, Illinois, to see his brother Arthur, the two brothers and a friend, Frank Mussa, drove from Princeton to Chicago on February 24, 1979, in order to return Michael to his home. The three youths arrived in Chicago around midnight, visited with Michael's mother at her apartment, and then proceeded to a neighborhood restaurant at about 1 a.m.

At the restaurant, the three encountered the defendant and Luis Ruiz, Placedo LaBoy, and Nelson Aviles. Although they were strangers to each other, Michael approached Ruiz and asked if he knew where he could buy some marijuana. Ruiz professed ignorance as to a possible source. Michael sought to establish a relationship with the strangers by asserting that he knew a Jose Cortez, a member of a gang known as the Latin Eagles. Ruiz responded by asking Michael if he was an Eagle. Michael answered yes and went on to boast that he had assisted Cortez in killing members of a rival gang, the Latin Kings. Unbeknownst to Michael, Ruiz was actually a member of the Latin Kings and not the Latin Eagles. Ruiz, however, did not reveal this to Michael, Arthur, and Frank. Instead, Ruiz said that he, Caballero, Aviles, and LaBoy were Eagles like Michael. Ruiz then said that he could take them to buy marijuana.

According to a confession signed by Caballero, all seven youths then entered the car which Michael and his friends were using. Michael, Arthur, and Frank occupied the front seat while Caballero, Ruiz, LaBoy, and Aviles occupied the back seat. Pursuant to Ruiz' instructions, the car was driven into an alley and parked. The occupants of the back seat then alighted and instructed Michael, alone, to bring money and follow them around a corner. After the corner was turned, Ruiz explained the deception to Michael and expressed his anger at Michael for helping to kill his friends. This was followed by the four Kings beating Michael until they were "satisfied." Ruiz and LaBoy then returned to the car, took control of the wheel, and drove around the corner to pick up Michael, Aviles, and Caballero. After everyone was in the car, the four Kings began to talk in Spanish so the other boys would not understand. The subject of the conversation was that Michael and his friends should be killed because they had seen their faces and could identify them. They then drove into a second alley.

After parking in the alley, Caballero and LaBoy took Michael and Frank out of the car, down the alley, and into a gangway where LaBoy stood guard over them with a gun. Caballero then returned to the car where he saw Aviles stabbing Arthur and heard him gasping for breath and the gurgling of blood as it came out of his throat. LaBoy then brought Frank from the gangway to the car. At this point, Caballero was offered the opportunity to stab Frank; however, he stated that he would prefer to shoot him. Ultimately, Caballero encouraged LaBoy to cut Frank's throat, which was accomplished, and Caballero went to retrieve Michael. Caballero returned with Michael, who was told to lie in the back seat of the car. As Michael began to enter the car, he evidently observed the bodies of his friends in the front seat as Caballero related that he had to push Michael headfirst into the car. Caballero then pulled Michael's head back, slit his throat, and then stabbed Michael in the chest several times. Following the murders, the four men rummaged through Michael's suitcase. Socks from the suitcase were used in an unsuccessful attempt to wipe the car clean of fingerprints so, as defendant stated, "we wouldn't get caught." They then left the scene. Caballero and Ruiz were arrested and charged on March 3, 1979, after the police matched Ruiz' fingerprints to a fingerprint found on the car.

Further evidence against the defendant included the testimony of Julio Lopez, also a Latin King, which was that he saw the four Kings together on the night of the murder in the vicinity of the crime. Dr. Robert Kirschner, a pathologist, also testified regarding the stab wounds on the victims. His description of the wounds found on Michael's body corroborated Caballero's version of how Michael had been killed. Following the defense presentation, Raymond Wesolowski testified in rebuttal for the State that he was arrested and placed in the cell next to Caballero's. Wesolowski testified that they shared a cigarette. He asked defendant what he was "in for." Caballero related that he had been charged with murder. Caballero asked Wesolowski if he had read about the three Latin Eagles that had been killed. When Caballero was asked if he had killed them, he said that he had.

We will first comment on a deficiency in this record which has been occurring in other criminal appeals with increasing frequency. No post-trial motion has been filed in this case specifying the grounds upon which defendant relies for reversal. The Code of Criminal Procedure of 1963 requires that a written motion for a new trial specifying the grounds therefor shall be filed by the defendant within 30 days following the return of the verdict. (Ill. Rev. Stat. 1979, ch. 38, par. 116-1.) The general rule followed by this court is that the failure to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a grounds for reversal on review. (People v. Pickett (1973), 54 Ill.2d 280, 282.) Failure to raise issues in the trial court denies that court the opportunity to grant a new trial, if warranted. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance. In this case, for instance, 18 issues have been raised on appeal, some of which were obviously considered insignificant by trial counsel.

Counsel has an obligation to this court to comply with the statute, and trial counsel for the prosecution has an obligation to object to general oral statements made by defense counsel that may be viewed as an oral motion for a new trial. If prescribed procedures are followed, needless time spent in briefing, arguing and considering countless superficial errors can be saved. In this case there was a general discussion, not about a motion for a new trial, but by way of an objection to a proposed judgment and execution order, in which a general attack on the constitutionality of the death penalty statute was made, and a statement was made to the effect that the jury was improperly impaneled for the purpose of seeking the death penalty. For those reasons, "and many more reasons on which I do not care to elaborate at this point in time," defense counsel objected to the judgment and execution order. The prosecution made no objection to this oral statement. Nor is it clear whether it was intended that this be considered as an oral motion for a new trial. The defense counsel thereafter requested that the defendant be allowed to file a motion for a new trial, and the court stated that defense counsel could file the motion. None was filed.

Since this is a death penalty case, which under our constitution is automatically reviewed by this court (Ill. Const. 1970, art. VI, sec. 4(b)), we must review the case whether or not a written motion for a new trial has been filed. Otherwise, the constitutional provision for an automatic appeal would be meaningless. We wish to restate, however, that, regardless of this court's duty to review death penalty cases, trial counsel has an obligation to see that the statute is complied with so that the review will be limited to issues of some significance.

The defendant first contends that the trial court erred in refusing to suppress oral and written confessions which he made following his arrest. The defendant's argument is that the confessions were involuntary and therefore inadmissible. It is, of course, true that it is the State's burden to establish by the preponderance of the evidence that the confessions were voluntary. (Ill. Rev. Stat. 1979, ch. 38, par. 114-11(d); Lego v. Twomey (1972), 404 U.S. 477, 489, 30 L.Ed.2d 618, 627, 92 S.Ct. 619, 627; People v. Harper (1967), 36 Ill.2d 398, 402.) It is also true that the trial court's findings will not be reversed unless they are against the manifest weight of the evidence. People v. Holloway (1981), 86 Ill.2d 78, 91.

A preliminary issue raised by the defendant concerns the breadth of the evidence which a court of review may consider in determining if the trial court committed reversible error in denying the motion to suppress. It is defendant's position that his testimony that Officer Epplen and Officer Flood had beaten him prior to his confession has not been rebutted. He argues that the State therefore has not proved that his confession was voluntarily made. At the suppression hearing prior to trial, Epplen denied that he had beaten defendant. Although Flood testified at the suppression hearing, the defendant argues that Flood was not asked whether he had beaten the defendant. The court ruled that the confession was admissible. At the trial it was introduced into evidence. The defendant then testified in his own behalf charging that the two officers had beaten him prior to the confession. On rebuttal, Flood testified that he never struck the defendant. Thus the record contains a denial of defendant's charges by both Epplen and Flood; however Flood's denial was made at the trial after the confession had been admitted into evidence.

The defendant, citing People v. Braden (1966), 34 Ill.2d 516, argues that a court of review is limited to considering evidence presented at the suppression hearing and to evidence introduced at trial prior to the admission of the allegedly illegally obtained confession. The State's position is that an appellate court may consider all evidence presented at trial in addition to the evidence from the suppression hearing.

In Braden, the testimony at trial had been given before the introduction of the questioned evidence. This court framed the issue in that case as "whether the additional testimony at the trial prior to the introduction of the evidence obtained by the search cures the error of the trial court in denying the preliminary motion to suppress." (34 Ill.2d 516, 520.) The court concluded that such evidence could be considered. In support of this conclusion, the court quoted from the opinion in Commonwealth v. Young (1965), 349 Mass. 175, 206 N.E.2d 694, which upheld appellate consideration of evidence introduced at trial. The Young court was quoted for its comment that "any error [in denying the motion to suppress] was not prejudicial, for probable cause appeared before the confession was admitted in evidence." (349 Mass. 175, 178, 206 N.E.2d 694, 696.) Following that quotation, this court said that "[w]e conclude that since the evidence at the trial established the legality of the arrest and the search in this case, defendant cannot avail himself of any error on the motion to suppress." People v. Braden (1966), 34 Ill.2d 516, 520.

The Braden court's holding does not explicitly refer to only evidence introduced at trial prior to admission of the allegedly illegal evidence. Nonetheless, some appellate court opinions, evidently in reliance upon the framing of the issue and the previously mentioned language quoted from Young, reflect a belief that the defendant is correct in arguing that Braden limits a reviewing court to considering only trial evidence which was introduced prior to the admission of the allegedly illegally obtained evidence. See, e.g., People v. Griswold (1977), 54 Ill. App.3d 246, 250; People v. Meacham (1977), 53 Ill. App.3d 762, 766; People v. Glanton (1975), 33 Ill. App.3d 124, 137-38. But see People v. Sledge (1981), 92 Ill. App.3d 1051, 1056-57.

This court has cited Braden for the proposition that "it is also permissible for the reviewing court to consider those findings of fact which are drawn from the testimony elicited at trial." (People v. Conner (1979), 78 Ill.2d 525, 532.) In Conner this court did not limit the evidence that may be considered to that produced before the questioned material was introduced.

We note that Braden involved a motion to suppress illegally seized evidence. Under the statute (Ill. Rev. Stat. 1979, ch. 38, par. 114-12(b)), the burden is on the defendant to prove that the search was unlawful. We noted above that the statute places the burden on the State to prove that a confession is voluntary. Braden does not discuss the burden-of-proof question, but appears to consider the burden as being on the State, which it would be if the defendant has made a prima facie showing of an illegal search and seizure. People v. Clark (1977), 55 Ill. App.3d 379, 385.

For the following reasons, we find that Braden did not announce the rule which some of the panels of the appellate court perceive and for which the defendant argues. As the Braden court pointed out, the defendant is required to make a pretrial motion to suppress simply to avoid extended collateral inquiries at trial. (People v. Castree (1924), 311 Ill. 392, 397.) Additionally, as this court noted in Braden, the pretrial ruling on suppression is not final and may be changed or reversed at any time prior to final judgment. (People v. Braden (1977), 34 Ill.2d 516, 520; see also People v. Fox (1925), 319 Ill. 606, 609.) Therefore, the rule is procedural rather than substantive. Accordingly, there does not seem to be any special sanctity to the evidence introduced prior to the admission of the allegedly illegal evidence which should preclude a court of review from reviewing the trial evidence introduced after that admission.

Although the court in Braden did not discuss People v. La Bostrie (1958), 14 Ill.2d 617, that decision specifically holds that a court, on review, may consider trial evidence in determining whether the trial court's decision denying a motion to suppress was correct. The court stated:

"We find it unnecessary to consider whether the evidence at the hearing on the motion, standing alone, was sufficient, for if the evidence at the trial was sufficient to sustain the introduction of the narcotics in evidence, it is immaterial that there might have been inadequacy of evidence at the hearing on the motion. [Citation.] We shall, therefore, consider all of the evidence, both at the hearing on the motion and at the trial, to determine whether the trial court properly admitted in evidence the narcotics which were found on defendant's person at the time of his arrest." (14 Ill.2d 617, 620-21.)

For the reasons we have stated above, we reaffirm the holding of La Bostrie.

Even if the testimony at trial is not considered, we find that the testimony given at the pretrial hearing supports the denial of the motion to suppress. The defendant testified at the hearing that his confessions were given only after he was twice taken to the washroom where he was beaten by Epplen and Flood. The defendant asserts that his testimony was never rebutted by the State. At the suppression hearing, Epplen testified that he did take the defendant to the washroom. However, he denied going into the washroom because it is not large enough to accommodate two people. Flood testified that he did not remember ever taking the defendant to the washroom. The defendant, citing Haynes v. Washington (1963), 373 U.S. 503, ...

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