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People v. Ocasio





Appeal from the Circuit Court of Cook County; the Hon. Maurice D. Pompey, Judge, presiding. JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 14, 1986.

Following a bench trial, defendant, Juan Ocasio, Jr., was convicted of two counts of murder and sentenced to 25 years in the Illinois Department of Corrections. Defendant appeals his convictions, contending that the trial court erred in denying his motion to quash the arrest and suppress evidence, and in denying his motion to suppress his out-of-court statements. Defendant's motions alleged that he was arrested and his subsequent statements taken in violation of his Federal and State constitutional rights. A full hearing was conducted on defendant's motions.

Defendant was arrested by the Chicago police on January 15, 1982, as the result of an investigation into the deaths of Tina Anderson and Neryda Cruz. The women's bodies had been found at approximately 2:30 a.m. that day in Anderson's first-floor apartment at 1623 North Talman Avenue in Chicago. Both women died as the result of multiple stab wounds.

Detectives Mudry and Storck of the Chicago police department were assigned to the investigation. On the morning of January 15, after having consulted with the initial investigators in the case, the detectives interviewed Wanda Castillo, who is defendant's sister and who resided in the second-floor apartment at 1623 North Talman Avenue. The detectives interviewed Castillo at 1625 North Talman Avenue, the home of defendant and his parents. Castillo informed the officers that she neither saw nor heard anything unusual during the late evening hours of January 14 and early morning hours of January 15. She stated that she had been with her boyfriend, Ramon Quinones, and Maria Echevarria during that time.

The officers then proceeded to the home of Ramon Quinones. They interviewed him in their squad car. Mudry testified that Quinones told them that he had seen defendant on January 15 and that defendant told Quinones that he participated in the slayings of Anderson and Cruz. After the interview, Quinones was transferred to another squad car and taken to the Area Five police headquarters for further questioning.

Officers Mudry and Storck then drove around the Humboldt Park area for approximately one-half hour to forty-five minutes. At 2 p.m. they returned to the Ocasio home. They had no arrest or search warrant. After gaining entry into the home, the officers arrested defendant. They also took with them Wanda Castillo and Maria Echevarria, who were in the Ocasio home at that time and who had been in the Castillo apartment the prior evening. On the way to police headquarters, the detectives also stopped at a grocery store where Edgardo Ventura, a co-defendant, was employed. They picked up Ventura and took him to police headquarters as well.

Defendant was interviewed at headquarters by various police officers and by an assistant State's Attorney. After having been apprised of his Miranda rights several times, defendant gave a statement regarding his involvement in the slayings. Defendant was subsequently charged under a 10-count indictment with murder, rape, home invasion, and armed violence.

Defendant moved to quash his arrest and suppress evidence and to suppress his out-of-court statements. Based on the evidence presented at the pretrial hearing, the trial court denied the motions. The decision was based upon the totality of the evidence and the credibility of the witnesses. The trial court found that the officers had probable cause to believe that defendant participated in the slayings of Tina Anderson and Neryda Cruz. The court further found defendant's warrantless arrest reasonable, based on the existence of exigent circumstances. In denying defendant's motion to suppress his out-of-court statements, the court found that the State met its burden of proof that none of defendant's statements were the result of mental coercion or threats of bodily harm. The court determined that defendant was properly advised of his Miranda rights, that he knowingly, intelligently and voluntarily waived those rights, and that his statements, therefore, were voluntarily made.

• 1 The State initially contends that defendant waived the issues presented on review because he failed to file a written post-trial motion for a new trial, as required by section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 116-1). Contentions of error raised by a defendant, other than those relating to the sufficiency of evidence and errors not generally included in post-trial motions, are ordinarily waived on appeal if the defendant did not file a post-trial motion. (People v. Wright (1980), 80 Ill. App.3d 927, 930, 400 N.E.2d 731.) The waiver rule, however, does not require that a defendant file a post-trial motion where he is tried before the court and has raised the issues at the trial level. (People v. Turner (1984), 122 Ill. App.3d 81, 83, 460 N.E.2d 797, cert. denied (1984), 469 U.S. 866, 83 L.Ed.2d 141, 105 S.Ct. 210; People v. Wright (1980), 80 Ill. App.3d 927, 400 N.E.2d 731; People v. Kelly (1979), 76 Ill. App.3d 80, 83-84, 394 N.E.2d 739.) In the instant case, the issues on appeal stem from the trial court's denial of pretrial motions to quash arrest and suppress evidence as well as to suppress statements. Defendant was tried by the court and does not raise issues regarding trial errors in his appeal. Therefore, we find no necessity for a post-trial motion.

• 2 Defendant first contends that his fourth amendment rights were violated because there was no probable cause to justify his arrest. For the purposes of arrest, probable cause exists where the facts and circumstances known to the arresting officer are sufficient to warrant a man of reasonable caution to believe that an offense has been committed and that the offense was committed by the person arrested. (People v. Lippert (1982), 89 Ill.2d 171, 178, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L.Ed.2d 85, 103 S.Ct. 92; People v. Gholston (1984), 124 Ill. App.3d 873, 882, 464 N.E.2d 1179.) A trial court's finding of probable cause will not be disturbed on appeal unless it is manifestly erroneous. People v. Clay (1973), 55 Ill.2d 501, 505, 304 N.E.2d 280; People v. Thomas (1984), 123 Ill. App.3d 857, 863, 463 N.E.2d 832; People v. Jones (1983), 119 Ill. App.3d 615, 623, 456 N.E.2d 926.

During the hearing on defendant's motion to quash arrest and suppress evidence, Mudry testified that, after his interview with Wanda Castillo on the morning of January 15, he and Storck went to the home of Ramon Quinones, and they interviewed him in their squad car. Quinones testified that he informed the detectives that he had been 53 miles away in Carpentersville on the prior evening. However, according to Mudry, Quinones told him that he had been in a van parked in front of the victims' apartment drinking rum with Pedro Miranda, the owner of the van, Edgardo Ventura, and the defendant. Mudry stated that Quinones informed him that, during this time, Miranda told the others that "he was going to take care of Tina because she burned him." He further stated that Quinones said that he began to feel ill and went up to Castillo's apartment and that defendant and Ventura later came to the apartment. Mudry testified that Quinones said that defendant informed those present in the apartment that Anderson and Cruz were dead, that Miranda had stabbed Anderson, and that he, Miranda, and Ventura had stabbed Cruz. Quinones also told them that Miranda had ordered defendant and Ventura to "keep their mouth shut" and that he would burn the knives used in the slayings at the foundry where he worked. In contrast, Quinones testified that, prior to arriving at police headquarters, he provided the police with no information which would have led them to defendant.

• 3 Defendant, relying on Quinones' statement that he gave no information to the police before arriving at Area Five headquarters, argues that the police could not therefore have had probable cause to arrest him at approximately 2 p.m. on January 15. We disagree with defendant's contention. Although Quinones claimed to have given the officers no information prior to his arrival at police headquarters, there also was testimony that information given by Quinones prior to that time led the detectives directly to defendant as a suspected participant in the double homicide. Where there is conflicting testimony-between witnesses, such testimony affects only the weight it is to be given, and the trier of fact may accept or reject all or part of a witness' testimony. (People v. Lutz (1982), 103 Ill. App.3d 976, 980-81, 431 N.E.2d 753; People v. Thompson (1981), 93 Ill. App.3d 995, 1009-10, 418 N.E.2d 112, cert. denied (1982), 458 U.S. 1109, 73 L.Ed.2d 1371, 102 S.Ct. 3490.) It is up to the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. A court of review will not substitute its judgment where the evidence is merely conflicting. (People v. Castro (1982), 109 Ill. App.3d 561, 565-66, 440 N.E.2d 1008, citing People v. Scarpelli (1980), 82 Ill. App.3d 689, 698, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L.Ed.2d 340, 101 S.Ct. 1357.) We do not find the trial court's determination regarding the conflicting testimony to be against the manifest weight of the evidence and, therefore, its decision must stand.

A determination of probable cause must be based upon the totality of facts and circumstances present in each case. (Illinois v. Gates (1983), 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317; People v. Tisler (1984), 103 Ill.2d 226, 469 N.E.2d 147.) We find that the Gates standard was met in this case and disagree with defendant that the information provided by Quinones was insufficient to establish probable cause. The trial court's finding of probable cause was not manifestly erroneous and will not be disturbed.

• 4 Defendant further argues that his fourth amendment rights were violated when the officers entered his home to arrest him without an arrest or search warrant. He maintains that there existed no exigent circumstances to justify such an arrest. In determining whether exigent circumstances exist, each case should be decided on the basis of the facts presented, with the guiding principle being reasonableness. (People v. Yates (1983), 98 Ill.2d 502, 515, 456 N.E.2d 1369, cert. denied (1984), 466 U.S. 981, 80 L.Ed.2d 836, 104 S.Ct. 2364; People v. Abney (1980), 81 Ill.2d 159, 173, 407 N.E.2d 543; People v. Johnson (1984), 121 Ill. App.3d 358, 363, 459 N.E.2d 1000.) A number of factors have been found useful in determining whether an exigency exists. These factors include whether: (1) there is a need for prompt police action; (2) there is no deliberate or unjustified delay during which the officers could have obtained a warrant; (3) a grave offense is involved, particularly a crime of violence; (4) the suspect is reasonably believed to be armed; (5) there exists a clear showing of probable cause; (6) there is strong reason to believe that the suspect is in the premises; (7) there is a likelihood the suspect will escape if not swiftly apprehended, and (8) the nonconsensual police entry into the premises is peaceful. (Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385, 392-93 (en banc); People v. Yates (1983), 98 Ill.2d 502, 515-16, 456 N.E.2d 1369, cert. denied (1984), 466 U.S. 981, 80 L.Ed.2d 836, 104 S.Ct. 2364; People v. Johnson (1984), 121 Ill. App.3d 358, 363-64, 459 N.E.2d 1000.) These factors, however, are to be considered only as guidelines in determining the reasonableness of a warrantless arrest. (People v. Yates (1983), 98 Ill.2d 502, 456 N.E.2d 1369.) Each factor need not be present in every case in order to find the presence of exigent circumstances but, rather, need only to be satisfied upon balance. (People v. Cobb (1983), 97 Ill.2d 465, 484, 455 N.E.2d 31; People v. Thompson (1981), 93 Ill. App.3d 995, 1005, 418 N.E.2d 112, cert. ...

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