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People v. Rivera





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


Rehearing denied July 15, 1986.

Pedro Muniz and Edwardo Rivera, defendants-appellants herein, were charged by indictment with the offenses of murder and armed violence. These charges arose from the April 23, 1983, shooting death of William Concepcion at his residence in Chicago. The trial court granted a defense motion to sever the prosecutions, resulting in simultaneous trials before two juries. Both defendants were ultimately convicted of murder, and received 30-year prison terms. These consolidated appeals followed.

The defendants have raised an aggregate of eight issues on appeal. Those common to both defendants are as follows: First, both men assert that they were prejudiced by the introduction of evidence revealing their gang associations. Second, each defendant claims that he was deprived of due process of law when the State was permitted to insinuate certain facts in the cross-examination of a key, exonerating defense witness without evidence to substantiate those claims. The defendants also assert that even assuming the State could substantiate those insinuations, the entire line of inquiry was too remote and speculative to establish bias on the part of that witness. Next, both men claim that the State's closing argument deprived them of a fair trial in a number of particulars. Finally, both defendants challenge the propriety of the 30-year sentences imposed upon them.

In addition to these common issues, Muniz asserts that his arrest was unsupported by probable cause, and that the trial court erred in failing to quash his arrest and suppress the resulting statements elicited from him. Rivera, meanwhile, asserts that error occurred when the trial court permitted the introduction of hearsay testimony which allegedly corroborated his confession. Rivera also claims that his right to confront and cross-examine witnesses was compromised when the State elicited the fact that Muniz had implicated him in the crime, when Muniz never was subject to examination.


Prior to trial, both defendants filed motions in limine to exclude any mention of their purported gang affiliations. The trial court denied those requests. Defendant Muniz, as noted, also moved the court to quash his arrest and suppress his statements. A hearing on that motion was held on July 6, 1984, after which the trial court denied Muniz' request. Evidence relevant to that ruling is incorporated with the trial testimony discussed below. The trial commenced on July 9, 1984.

Evette Reyes testified that she lived at 3225 West Pierce with William Concepcion, the victim. At approximately 6:30 p.m. on April 23, 1983, while at the apartment with Concepcion, Reyes heard a knock at the door. She went into the bedroom with her child, and Concepcion answered the door. While in the bedroom, Reyes heard four gunshots; she ran to the door and found Concepcion slumped against the wall beside the door. Concepcion told Reyes that he had been shot by "two kids," aged about 15 to 17 years of age. Reyes first called her mother-in-law, and then called an ambulance. Her mother-in-law arrived before the ambulance; five minutes later, Emilio Detres arrived at the apartment.

William Concepcion died on April 24, 1983, from two gunshot wounds. The evidence indicated that the shots were fired at close range, and that they were not fired through the door itself. No fingerprints were found at the scene.

Emilio Detres was then called and testified before both juries, over Rivera's hearsay objections. Detres stated that on April 23, 1983, he was at a corner store making a phone call when he saw defendant Muniz. Muniz appeared "a little nervous" to Detres. Muniz was wearing an off-white "middy" or knee-length type sweater. Muniz then asked Detres if he knew that Mirabel Concepcion's brother had been shot. Detres said he did not know, and asked if it was Abraham Concepcion who had been shot. Muniz said no, that it was Billy (William Concepcion), and stated that he had been shot four times. Shortly thereafter, Detres left the store and went to the victim's house. The police and an ambulance were already there when Detres arrived.

At the house, Detres asked his aunt what had happened to Concepcion; his aunt asked how he found out so quickly. He told her about the conversation, then left the apartment. The next day, when he returned to the apartment after Concepcion's death, Detres was questioned by several police detectives investigating the offense. He related the same story, and later at the police station was shown a number of mug shots, including one of Muniz. Detres knew Muniz before the incident. He identified Muniz from the photo as the man he spoke to at the store.

Pablo Colon, who lived across the street from Concepcion, stated that he saw two youths go up to Concepcion's house in the early evening of April 23. As Colon walked toward his car, he heard the gunshots; as he went back to his home, he saw two boys, aged 14-16 and a few inches over five feet tall, running from Concepcion's. Colon was unable to see their faces, although he noted that one of the boys was wearing a light-colored jacket that came down to his knees. The other was attired in light-colored clothing, perhaps gray, but Colon was unable to tell for certain.

Officer Zaccardo spoke to both Colon and Dorothy Anderson, another area resident, after the shooting. He was unable to recall Colon's description; his report, however, included a composite description. One of the boys was described as a white hispanic 15-16 years of age, five feet six inches tall, wearing a jogging suit with a blue stripe on the pants. The other boy was also described as hispanic, 15-16 years of age, five feet six inches tall, who was wearing blue jeans and a white tee-shirt. Zaccardo broadcast these descriptions immediately.

Detective Richard Schak stated that he spoke to Colon on April 23, and received the following description: two hispanic males, 15-16 years of age, one in blue jeans and a white tee-shirt, one in a gray jogging suit with a blue stripe on the pants. It was also stipulated that Investigator William Schwartz would state that on April 26 Colon described one boy as 14-15 years old, five feet tall, wearing a white or light beige jacket.

Detective John Howe was the officer who spoke to Detres the day after the shooting. Howe was introduced to Detres by Mirabel, the victim's sister. Detres told Howe that Muniz was attired in a white, knee-length knit sweater; this latter point was not included in Howe's report.

Muniz was not home when Howe went there on April 24. Howe left his card with Muniz' mother, and requested that she have Muniz contact him. Muniz never did so. Howe testified that he believed Muniz met the description of the assailant, because he took the white tee-shirt in that description to be the off-white sweater Muniz wore when he spoke to Detres.

On April 27, Howe saw Muniz on the street with another man, later identified as Douglas Rodriguez. Howe told Muniz that he wanted to talk with him regarding the murder; according to Howe, Muniz stated he did not want to talk in front of others who were on the street. Muniz got in the back seat of the car, and Howe told him they could go to the station if Muniz wanted. Muniz said that was fine, because he wanted to get out of the neighborhood. Howe added that he felt that Muniz was free to leave, although he could not say whether he would have arrested Muniz had he left. Howe also stated that he had been looking for Muniz for three days, and he intended to take him to the station.

There was no mention in Howe's report about Muniz not wanting to talk on the street. Howe stated that he "arrested" Muniz while on the street, at about 8 p.m. Muniz was then taken to the police station and placed in an interrogation room; there was no conversation on the drive to the station.

Muniz stated that he was on the street with Rodriguez, and that the police came up to him and told him to get in the car. One of the officers grabbed him and threw him in the back seat. Muniz did not talk to the officers on the street, and did not feel that he had a choice about going with the officers; rather, he felt that he had to accompany them.

After arriving at the station, Muniz was interrogated on four separate occasions by Detectives Curley and O'Shea. These officers arrived at the station at about 8:30 p.m. on April 27 and spoke to Howe and his partner, Officer O'Brien, before confronting Muniz. Muniz remained in custody in the interrogation room for 14 1/2 hours, from 8:30 p.m. until 11 a.m. the following morning, at which time a written confession was obtained. During this detention, Muniz was not provided with a cot or bed to sleep on, although Curley stated that Muniz did appear to sleep during this period.

At 9:30 p.m. on the night of the arrest, Curley first spoke to Muniz. After advising Muniz of his rights, Curley informed him that the police had information indicating that Muniz had knowledge of Concepcion's murder. Muniz stated that he met Rivera on the night of the shooting at 6:50 p.m., and Rivera told him about Concepcion's slaying. Muniz also stated, when asked to recount his activities on April 23, that he had been with Rodriguez at a girlfriend's house the afternoon prior to the incident, and that he left there and went to his wife's home, arriving there at 6 p.m. and remaining there until approximately 1 a.m. The detectives then ended the first interrogation, and reviewed their files and Muniz' statement.

An hour and a half later, the officers confronted Muniz with alleged discrepancies in his statement. They then left Muniz alone again while they conferred with Officers Howe and O'Brien. At 11:20, they again confronted Muniz, this time telling him that they knew he was at the scene. Muniz then asserted that Rivera and an individual known as "Chico" shot the victim. Muniz claimed that these two had told him about the incident at 7:30, while they were on the streets. Curley and O'Shea again left the room to confer with Officers Howe and ...

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