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08/18/89 the People of the State of v. Jose Rivera

August 18, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSE RIVERA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

543 N.E.2d 840, 187 Ill. App. 3d 813, 135 Ill. Dec. 272 1989.IL.1275

Appeal from the Circuit Court of Cook County; the Hon. Michael P. Toomin, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. EGAN, P.J., and LaPORTA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Following a jury trial, defendant, Jose Rivera, was convicted of murder and five counts of armed robbery and was sentenced to concurrent prison terms of 75 years for murder and 30 years for each armed robbery conviction. Defendant appeals, contending that he was denied a fair trial by the prosecutor's references to his alleged gang affiliation and to his other crimes, and that the trial court erred in denying his motion to suppress his confessions.

Dixie Cramer testified for the State that on April 8, 1984, she and James Montesi were at a tavern with some of their friends. At approximately 2 a.m., three men wearing ski masks and carrying guns entered the tavern. One of the men was defendant. He positioned himself in front of the door. The patrons were instructed to put their hands on the bar. Defendant, who was about two feet from Cramer, took her wallet. Defendant was holding a gun. Montesi began to approach defendant. Defendant then fatally shot Montesi and threatened to kill "anybody." After the shooting, one of the other men had the tavern owner open the register. The patrons and owner were herded to the washroom. They emerged from the washroom when the bar was quiet. Defendant and the other two men were gone. On April 26, Cramer identified defendant in a lineup and again at trial.

Bozena Proscanski, owner of the tavern, testified she was talking on the telephone in the bar when a man in a ski mask took the telephone from her and hung it up. She could see his face through the mask. (She identified the man as Armando Ochoa, a co-defendant who was tried simultaneously with defendant, using separate juries.) Ochoa had her open the register at gunpoint and took approximately $300. Thomas Tamkin, Russell Cramer and Carl Schlotfeldt also were in the tavern. Each testified to essentially the same set of facts as did Proscanski and Dixie Cramer. Only Dixie Cramer was able to identify defendant.

Defendant was arrested by Sergeant John Farrell on April 24, 1984. He was taken to the police station and, after questioning, made several statements implicating himself in the events of the evening of April 8, 1984.

The statements were introduced into evidence at trial. Defendant indicated that he, Ochoa, and a third individual had decided to make some money. They had guns and ski masks with them. They drove by the tavern and decided to rob it. Defendant stayed in front of the tavern to keep anyone from leaving or entering the tavern. They each had their guns out and had everyone line up so that they could search them one by one for their money. Defendant indicated that the third individual shot the patron who was not cooperating and then placed all the patrons in the washroom. The third individual stated, "e're bad and we'll kill anybody." They split the money and Ochoa burned the ski masks.

We shall first consider defendant's contention that the trial court erred in denying his motion to suppress the confessions.

At the suppression hearing, Farrell testified that he was assigned to investigate the Montesi homicide. On April 24, 1984, Farrell located defendant in a parked car. Farrell placed defendant under arrest, handcuffed him, and brought him to an interview room at the police station, Area 5 headquarters. Farrell advised defendant of his Miranda rights while in the car and defendant acknowledged that he understood each right. Farrell stated that he did not have a machine gun, that he did not threaten defendant or make promises to him, and that he did not beat defendant.

Officer Wayne Lipsey testified that he was present when Farrell arrested defendant. Lipsey followed Farrell to Area 5 headquarters. Farrell arrived at Area 5 and took defendant to the interrogation room. Farrell uncuffed defendant, and both officers left, locking the door behind them. Neither he nor Farrell struck defendant or showed him a machine gun.

Officer William Wagner testified that he and his partners interviewed defendant at Area 5. Defendant was not handcuffed and had no marks, bruises, or footprints on him. Defendant did not tell Wagner that Farrell or any other officer had threatened him. Wagner heard Officer Lawrence Poli read defendant his rights and heard defendant acknowledge that he understood those rights. Wagner also heard defendant ask Poli to contact Assistant State's Attorney Chris Cronson. Defendant did not ask to see his own lawyer.

Detective Jose Rodriquez testified that he saw defendant at headquarters that morning. Defendant was not handcuffed. Neither Rodriquez nor his partners threatened or beat defendant, nor did they make any promises to him. Rodriquez heard Poli read defendant his rights and heard defendant acknowledge that he understood them. Rodriquez further testified that when defendant was asked if he wanted to see a lawyer, defendant asked to see Assistant State's Attorney Cronson.

Poli testified that he saw defendant around 2 a.m. on April 25, 1984, at Area 5. Defendant was not bruised, nor was he handcuffed to the wall. Poli read defendant his rights, and defendant acknowledged that he understood each right. Neither Poli nor anyone in his presence beat defendant. Defendant asked Poli to contact Cronson because defendant previously had testified for Cronson. Defendant did not ask to call his ...


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