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08/24/88 the People of the State of v. Daniel Pena

August 24, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DANIEL PENA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

528 N.E.2d 325, 174 Ill. App. 3d 281, 123 Ill. Dec. 780 1988.IL.1299

Appeal from the Circuit Court of Cook County; the Hon. Kenneth L. Gillis, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Following a trial without a jury, defendant Daniel Pena was convicted of murder, conspiracy to commit murder, and armed violence and was sentenced to an extended term of 50 years on the murder charge. Defendant appeals, contending that his confession was involuntary; that the State failed to prove him guilty beyond a reasonable doubt; and that the sentence was excessive.

On October 6, 1984, Angel Velez was standing on a street corner with several others when a brown car pulled up to the corner. Defendant was allegedly driving while Juan Perez was in the passenger seat. Perez rolled down the window and fatally shot Velez several times in the face and chest.

On January 22, 1986, defendant was arrested on an unrelated drug charge. He subsequently confessed to his participation in murdering Velez. At the hearing on defendant's pretrial motion to suppress the confession, police officers testified that defendant was brought to Area 5 headquarters in Chicago after the drug arrest.

Defendant testified that following his arrest Officers Guevara, McCarthy and Leonard questioned him. He was held in an interrogation room for five or six hours. Guevara repeatedly struck defendant in the face, ribs and on the legs from the groin to his knees with a flashlight. Officer McCarthy hit his face. This continued until the morning of January 23.

Defendant was taken to a holding cell, where he saw Amadoa Rivera, his brother-in-law's cousin, and Daniel Ramirez. Rivera testified that he saw defendant on the evening of January 22, prior to his arrest, and defendant did not appear to be hurt. At about 6 a.m. on January 23, in the holding cell, defendant's nose appeared bruised, red and swollen, and he had a lump on his forehead. Defendant told Rivera that the police had beat him. At about 8 a.m., the police removed defendant from the cell. After Rivera was moved at 10 a.m., he telephoned defendant's sister to report defendant's location.

After two hours, defendant was returned to the interrogation room. He testified that Guevara, Leonard and McCarthy continued to beat him in the face, ribs and legs. He urinated in his pants, and his nose and mouth were bleeding. A fourth man identified himself as a public defender and instructed defendant to agree to everything that was said. After two hours of being beaten, defendant stated he would cooperate.

In regard to his court-reported statement, defendant testified that he answered "yes" to each question after the "public defender" directed him to respond. Defendant only said what they told him to say. He denied answering "no" to the question of whether he gave the statement because of mistreatment. The court reporter wrote the wrong statements down. He denied that the lawyer taking the statement identified himself as an assistant State's Attorney, although the transcript indicated that identification.

Defendant's mother testified at the hearing that Rivera notified them that defendant was at Area 5 headquarters. The police, however, said defendant had been taken to a different station. A few moments later they saw defendant, 100 feet away, on the second-floor glass-enclosed gallery at Area 5 headquarters. Defendant limped, and his face was red and swollen.

Jamie Velez, defendant's brother-in-law, testified that he saw defendant at Area 5 headquarters. Defendant was about 100 feet away, behind glass. He limped, ...


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