APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
516 N.E.2d 372, 162 Ill. App. 3d 990, 114 Ill. Dec. 217 1987.IL.1529
Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Judge, presiding.
PRESIDING JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Defendant-appellant Rodolfo Carreon was tried before a jury and found guilty of the murder of Jose Casillas and Emilio Sanchez, as well as one count of armed robbery. A death penalty hearing was subsequently held before the trial Judge sitting without a jury, at the Conclusion of which the court sentenced Carreon to life imprisonment for the murder and a consecutive extended term of 60 years for the armed robbery. On appeal, Carreon presents the following issues for review: (1) whether the trial court erred by refusing to give an accomplice witness instruction; (2) whether the trial court erred in denying Carreon's motion to quash his arrest and suppress certain evidence; (3) whether Carreon was denied a fair trial due to the death qualification of the jury; (4) whether the trial court erred in imposing a consecutive extended-term sentence for the armed robbery conviction. We reverse and remand for a new trial.
A review of the record discloses that on November 27, 1983, at approximately 2:30 a.m., the victims' bodies were found in the front seat of their car, which had crashed into a parked station wagon near 2700 North Point Street in Chicago. Both men had been shot in the head at close range. The defendant was arrested approximately 24 hours later at his apartment, was interrogated by the police, and was charged with the offenses of murder and armed robbery. Ignacio Amaya, Carreon's neighbor at the time of the incident, and who thereafter returned to his native Mexico, testified at Carreon's subsequent trial that he was present when the defendant allegedly shot the two victims.
Amaya related that on the night of the murders he went to the Saloon de Mexico with defendant and watched him play pool with the victim Casillas for approximately 1 1/2 hours. After the pool game, Casillas asked Carreon how much money he had, to which Carreon replied "$400." After Casillas suggested that they play cards, Carreon agreed and the two men went into a back room. A short time later, Amaya saw Carreon come out of the back room and leave the bar. He later returned to the bar, told Amaya that he had lost all his money, and directed him to wait outside.
Amaya further testified that while he waited outside, he saw Casillas and Sanchez leave the bar and get into a blue car parked across the street. Shortly thereafter, Carreon also exited the establishment and went over to the blue car, asked the victims for a ride, and yelled to Amaya to join him. Amaya got into the backseat of the car with the defendant, despite the fact that he lived just across the street and said that he intended to go home. Amaya testified that after the group drove a few blocks, he heard a gunshot. He turned and saw Carreon with a gun, and then watched as Carreon shot the other victim. Both victims slumped over as the car crashed into a parked car. Amaya then got out of the car, walked about 10 to 15 meters away, and watched as Carreon went through the slain men's pockets, recovering the money he had lost gambling.
Amaya claimed that he then accompanied Carreon to the barbershop that the latter apparently owned and operated, where he waited while Carreon hid the gun "under the bathroom." He recalled that Carreon was full of blood, and that the gambling money he had recovered was bloody. After trying to clean the money under a faucet, Carreon gave Amaya $260 and told him to go home. Amaya thereupon took the money and went to his apartment. He did not call the police because of his alleged fear of Carreon.
The following day the police officers investigating the offense questioned numerous men who were at the Saloon de Mexico the previous evening or who saw the victims' car crash. From the information thus obtained, they suspected that Amaya must have had some knowledge about the shootings. Accordingly, they went to Amaya's apartment, placed him under arrest, and took him to the police station for interrogation. Amaya initially claimed that he did not know anything about the crime; however, when the police showed him the bloodstained money they had found in his wallet at the time of his arrest, Amaya implicated Carreon in the shootings. He subsequently testified to the events described above before a grand jury, and was sent to Dallas, Texas, where his rent was paid by the State. While awaiting Carreon's trial, the State did not bring Amaya's presence in the United States to the attention of the immigration officials, despite his status here as an illegal alien.
The first issue Carreon presents to this court in this appeal is whether the trial court erred by refusing to give a cautionary accomplice witness instruction with regard to Amaya's testimony. At the instruction conference, Carreon tendered Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981), which states:
"An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case."
Carreon argues on appeal that the trial Judge's refusal to give this instruction to the jury warrants remanding the ...