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12/23/88 the People of the State of v. Jose Berrios

December 23, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSE BERRIOS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

533 N.E.2d 64, 178 Ill. App. 3d 241, 127 Ill. Dec. 446 1988.IL.1868

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

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Following a jury trial, defendant, Jose Berrios, was convicted of the murder of Reynaldo Reyes and sentenced to 25 years' imprisonment, from which the defendant appeals. The sole issue on appeal is whether the trial court erred in denying defendant's motion to quash his arrest and suppress the evidence derived therefrom.

The testimony presented at the hearing on the defendant's motion to quash his arrest and suppress the evidence follows.

Defendant, Jose Berrios, testified that on July 13, 1983, between 2:30 p.m. and 3 p.m., he was approached by three plainclothes police officers at 1553 North Bell Street in Chicago. The officers asked the defendant for identification, and the defendant gave the officers his driver's license. The officers asked the defendant if he was known by the nickname "Casper" and defendant replied that he was not. The officers did not inform the defendant that a person known by the name "Casper" was involved in a shooting on June 30, 1983, or that they wanted to discuss with the defendant a shooting that took place on that date. One of the officers told the defendant that they were investigating an armed robbery and directed defendant to accompany them around the corner. The defendant did so, and around the corner, one of the officers questioned a small boy, who shook his head indicating that he did not know the defendant. Defendant testified that while he was in the police car with two of the officers, the officers did not tell him that he could leave the car. The officers told the defendant that they were going to take him to the police station because they were investigating a case and they wanted to take a picture of the defendant. The officers never told the defendant that he had a right to refuse to go with them to the police station and the defendant went with them.

When they arrived at the police station, defendant was taken to an interrogation room where an officer took his picture. Before taking the defendant's picture, the officers did not tell the defendant that he had the right to an attorney. One of the officers began questioning the defendant "while the other . . . ran out with the picture." The defendant was taken by the officers to an office, in which he remained for two hours. The defendant still was not told that he had a right to an attorney.

At about 6 p.m., the officers took the defendant to another police station. The officers handcuffed the defendant before transporting him there. At this point in defendant's testimony, the State stipulated that defendant was in police custody when he was taken from the first police station to the second police station.

The next witness called by the defendant was police officer Joseph Frugloi. Frugloi testified that on July 31, 1983, two Chicago police detectives, Ciangi and Healy, asked him if he knew or could locate a man named "Ortiz." Detectives Ciangi and Healy located Ortiz and took him to the police station, where Ciangi and Healy talked to him. After talking to Ortiz, Detectives Ciangi and Healy asked Officer Frugloi to go with them to North Avenue and Western Avenue to locate a man nicknamed "Casper." Ortiz had described Casper as Hispanic, white, with fair skin, light brown hair, about 5 feet 3 inches tall and weighing about 110 pounds. Officer Frugloi stated that they went looking for "Casper" because Ortiz had informed the officers that "Casper" was involved in a shooting. The officers knew that this information, which Ortiz gave the officers, was not based on Ortiz' firsthand knowledge.

At about 3 p.m. on July 13, 1983, Officers Frugloi, Ciangi and Healy located a man fitting Ortiz' description of "Casper" at 1555 North Bell Street. Officer Frugloi identified the defendant in court as the man they located. Officer Frugloi stated that Healy asked the defendant for identification and whether he was known by the nickname "Casper." The defendant showed his identification to the officers and told them that he was not known by the name "Casper." Officer Healy asked the defendant if he knew anyone named "Casper" who fit the description the officers had of "Casper." Defendant told Officer Frugloi that his nickname was not "Casper" and that nobody else in the neighborhood looked like him. Officer Frugloi testified further that Officer Healy asked the defendant if he would go with the officers to the police station to determine if defendant was "Casper" and that the defendant agreed to go. The defendant was taken to the station.

When they arrived at the police station, Ortiz identified defendant as "Casper." Officers Ciangi and Healy interrogated defendant out of Frugloi's presence. About 20 minutes later, Officer Frugloi learned that the defendant's picture had been taken.

Officers Frugloi, Healy and Ciangi went to the area of the service station where the victim had been shot. Officer Frugloi stated that they showed the defendant's picture and the pictures of four other men to Nina Perea, whom they located near the service station, and that Nina Perea identified the defendant's picture to the officers as the picture of a man she had seen running from the service station into an alley after ...


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