APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
524 N.E.2d 1054, 170 Ill. App. 3d 1070, 121 Ill. Dec. 6 1988.IL.770
Appeal from the Circuit Court of Cook County; the Hon. James A. Zafiratos, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Raul Robles, Jesus Carrenza and defendant, Samuel Calvillo, were indicted for the murder of Mario Arteaga in the circuit court of Cook County. The cause against Carrenza was severed and Robles and defendant waived a jury trial. After directing a verdict for Robles, the trial court convicted defendant and sentenced him to 20 years in the Illinois Department of Corrections.
John Bax was the only occurrence witness for the State. At approximately 1 a.m. on November 10, 1983, he left a friend's apartment at 3302 South Kenilworth in Berwyn, Illinois, and took the elevator to the first floor. There he encountered three men, one of whom he recognized as Mario Arteaga, a building resident. Arteaga was just inside the inner security door to the building and was holding it open while talking to two men on the other side of the door in the outer vestibule. One of the men, who was the taller of the two, was very close to the security door and the other was "back" in a small niche to the left of the door. While the lighting on both sides of the security door was dim, Bax was able to see the faces of all three men. As Bax stepped through the security entrance, Arteaga asked him if he would give the two men directions to 26th and Ashland. Bax agreed to do so and spoke to the taller of the two men face to face. After determining that there was a language barrier between himself and the taller man, Bax drew a diagram of directions to 26th and Ashland. While he did so, the second man remained in the niche to the left of the security door and behind Bax. When the two men still did not understand his directions, Bax told Arteaga to tell them that he was going to Chicago and would show them the way from his vehicle if they followed him. Bax spent a total of two or three minutes with the men. After waiting a few minutes for the two men in his vehicle, which was parked "[almost] across the street" from the building, Bax heard a door slam, a gunshot, screaming and a man yell for help. The two men he had seen in the vestibule then came out of the building, looked both ways down the street and walked south down Kenilworth.
On November 13, Bax went to the Berwyn police station and looked at a group of six photographs or "mugshots." Three of these photographs were black and white, three were color, five were wallet size and the sixth, a color photograph of defendant, was twice as large as the others. Bax identified the defendant's photograph as the shorter of the two men in the vestibule on November 10. On November 16, Bax returned to the Berwyn police station to view a lineup and, out of the men in the lineup, identified defendant. Bax also identified Robles out of a lineup held at the Cook County jail on November 23.
On cross-examination by Robles' counsel, Bax denied that he had also tentatively identified Jesus Carrenza and Joacquin Gonzales out of the lineup of November 23. On cross-examination by defendant's counsel, Bax denied telling the Berwyn police on November 10 that his friend had not let him into her apartment that night and claimed he had been in the apartment for an hour before leaving. Bax admitted that he had much less contact with the shorter of the two men in the vestibule than he had with Arteaga and the taller man. Bax denied having described the two men in the vestibule with Arteaga as 5 feet 10 inches and 5 feet 6 inches in height and claimed he described them as approximately his height, 5 feet 11 inches, and shorter. Bax claimed that a composite sketch drawn with his assistance on November 10 was of the shorter of the two men in the vestibule with Arteaga but admitted that he had told the police at that time that he could only identify the taller of the two men if he saw him again. Bax further admitted that he did not tell the police that either man had a moustache, beard or facial hair and conceded that defendant had a moustache in the photograph which he identified and a moustache and goatee in the lineup out of which he identified defendant.
Mark Van Cura, an assistant State's Attorney at the time of the murder investigation, also testified for the State. He interviewed defendant on November 16 at the Berwyn police station. At that time, he asked defendant if he was familiar with the Miranda warnings and defendant responded, "Yes, I am." Van Cura then gave defendant a Miranda rights waiver form and asked defendant to read it back to him, which defendant did. Van Cura then read the Miranda warnings to defendant and asked him if he understood each one, to which defendant responded that he did. Van Cura then had Berwyn Detective Roger Montoro ask defendant to read the waiver form back in Spanish, which defendant did. Montoro then read the Miranda warnings to defendant in Spanish. Van Cura then asked defendant to sign the waiver form, which defendant did, and also asked whether defendant wanted to talk to Van Cura about the incident on November 10, to which defendant responded, "Yes, I do."
Defendant told Van Cura that on the evening of November 10 he had been drinking when he met a man named Jessie, who asked defendant to give him a ride in his car. When the two men got in defendant's car, Jessie displayed a .38 caliber blue-steel revolver with a wooden handle and told defendant that he wanted to kill someone. Defendant told Jessie, "I'll take you somewhere, but I don't want to do anything." The two men picked up a third man named Rudy, and the three drove to Connie's restaurant in Berwyn but did not go in. They then drove to Kenilworth and Windsor in Berwyn. While seated in defendant's car, they saw a man drive by whom defendant pointed out as Mario. Jessie and Rudy then got out of the car and walked toward an apartment building across the street, some distance from the car. Defendant did not see anyone enter the building but he heard a gunshot and then saw Jessie and Rudy run out of the building. Van Cura asked defendant if he knew who had shot Mario and defendant responded, "Don't tell Jessie what I saw. I was in the vestibule. Jessie shot Mario." At this point, defendant indicated that he did not want to talk further with Van Cura.
Berwyn Detective Roger Montoro also testified for the State. In the course of investigating Arteaga's murder, he learned that Arteaga had worked at Connie's restaurant in Berwyn. Montoro interviewed defendant on November 16, after his arrest, at the Berwyn police station before Van Cura's arrival. Montoro read the Miranda warnings to defendant at this time and defendant responded "yes" after each one. Defendant then stated that he knew Arteaga had been shot and that he had lived with him at one time at the apartment building at 3302 South Kenilworth. Defendant also stated that he had worked at Connie's restaurant in Berwyn. Defendant then gave Montoro the same account of the events surrounding Arteaga's murder as he later gave Van Cura. Montoro further testified that the "Jessie" and "Rudy" whom defendant had been with on November 10 were Jesus Carrenza and Raul Robles.
Montoro further stated that when he interviewed Robles on November 17, 1983, after his arrest, Robles stated that he had gone to the apartment building at 3302 South Kenilworth with Carrenza and that while they were talking with Arteaga, a white man had appeared and that Carrenza had done the shooting. After defendant's arrest on the 16th, he told Montoro that he did not do the shooting but he knew who did. Finally, Montoro claimed neither he nor Assistant State's Attorney Van Cura had a language problem with defendant.
Defendant testified, through an interpreter, on his own behalf to the following. He had gone for a ride in his car on the evening of November 9, 1983, when he met Jesus Carrenza, with whom he was previously acquainted and who invited him to go for a beer. After they had gone to a bar, Robles arrived and played pool with defendant and Carrenza. Carrenza asked defendant if he would give him a ride and told defendant he would tell him where he wanted to go later. Defendant agreed and the three men left the bar about 90 minutes later. Defendant asked Carrenza where he was going and Carrenza told him "on the other side of Cicero" and then started laughing. When defendant asked why he was laughing, Carrenza told him because he was going to see a friend and kill him but did not tell defendant the friend's name. Defendant asked Carrenza if he was serious and Carrenza said yes. Defendant then told Carrenza he could not take him and Carrenza said that he had to take him and that, if he did not, he would blow defendant's brains out. Carrenza then showed defendant a gun and defendant told him he could take his car. Carrenza refused, stating that defendant had to be the driver and that he, Carrenza, was not stupid. Defendant then agreed to take Carrenza. After driving to Robles' home for a jacket for Robles, defendant drove the car where Carrenza told him to go and then parked it. Carrenza, who had the gun he displayed earlier, and Robles then left the car and walked toward a building. Defendant attempted to start his car to leave but it failed to start and he had to walk home.
The next day, defendant met Carrenza on the street and asked him to go with him to get his car because defendant was not sure where it was. After going for Robles and while en route to his car, defendant asked Carrenza what had happened. Carrenza eventually told defendant he had killed a friend. When defendant asked him why, Carrenza said it was none of his business. Carrenza then warned defendant not to tell anyone or the same thing would happen to him and especially to Robles.
Defendant denied that after his arrest Detective Montoro spoke to him in Spanish and claimed that at that time he did not understand English except for a few words. The next day, the officers questioned defendant in English and, as far as he understood by their hand gestures, asked him about someone's death, the driving of a car, whether defendant killed "him" and whether he knew anything about a gun, to which defendant responded negatively. Defendant also told the police that Jessie had shot Arteaga. Defendant denied that he had gone into the apartment building or that he had planned to kill Arteaga. Defendant further stated that he had not understood the questions put to him by Assistant State's Attorney Van Cura. He also testified that when he signed the Miranda warnings waiver form it was ...