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09/06/94 PEOPLE STATE ILLINOIS v. WILLIAM HERNANDEZ

September 6, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM HERNANDEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Robert J. Collins, Judge Presiding. Original Opinion of September 30, 1991,

Rehearing Denied December 2, 1994.

Manning, Buckley, O'Connor, Jr.

The opinion of the court was delivered by: Manning

SUPPLEMENTAL OPINION

JUSTICE MANNING delivered the supplemental opinion of the court:

Defendant William Hernandez, along with codefendant Antonio Silvas, was charged by indictment with murder, two counts of attempted murder, armed violence and aggravated battery. Silvas entered pleas of guilty to murder and attempted murder. Following a jury trial Hernandez was convicted of all charges and was sentenced to 40 years imprisonment for murder to be served consecutively with two 30-year concurrent attempted murder counts. Defendant appealed.

On appeal this court remanded defendant's cause for a Batson hearing, and retained jurisdiction to review the trial court's decision following that hearing and to consider the other issues raised but not decided.

Following remand, the trial court found that defendant had presented a prima facie case of race discrimination in jury selection; however, the court determined that the State presented racially neutral reasons for its use of peremptory challenges. ( People v. Hernandez (1991), 163 Ill. Dec. 307, 220 Ill. App. 3d 715, 581 N.E.2d 258.) Defendant appealed the trial court's remanded finding. We affirmed the trial court's decision in a summary order pursuant to Supreme Court Rule 23 C (5), (8). (134 Ill. 2d R. 23 C (5), (8)). (See Addendum).

This appeal addresses the remaining issues not addressed in the first appeal. A detailed summary of the facts in this case was presented in our original opinion; therefore, we do not repeat them here.

Defendant first argues that the trial court erred in denying his motion to suppress statements. He maintains that his statements were not voluntarily given, that no juvenile officer or adult family member was present at the time he gave the inculpatory statement and that he was physically abused.

A reviewing court cannot disturb a trial court's ruling on a motion to suppress a defendant's statement or confession unless it is against the manifest weight of the evidence ( People v. Brown (1989), 182 Ill. App. 3d 1046, 538 N.E.2d 909, 131 Ill. Dec. 534; People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525, 72 Ill. Dec. 272); or manifestly erroneous. People v. Winters (1983), 97 Ill. 2d 151, 454 N.E.2d 299, 73 Ill. Dec. 439.

The test of whether a confession was admissible at trial is whether the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether defendant's will was overcome when he made the statement. ( People v. Patterson (1992), 189 Ill. App. 3d 104, 546 N.E.2d 293.) In making this determination, the court must look at the totality of the relevant circumstances surrounding the making of the statement, including the existence of any threats, promises, or physical coercion, the length and intensity of the interrogation; and the age, intelligence, experience and physical condition of the defendant. ( People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228, 80 Ill. Dec. 776, cert. denied (1984), 469 U.S. 935, 83 L. Ed.2d 270, 105 S. Ct. 334.) The mere assertion that a confession was obtained by duress does not mandate its exclusion. Rather, the issue becomes one of fact for the trial court to resolve. ( People v. Fickett (1990), 204 Ill. App. 3d 220, 562 N.E.2d 238, 149 Ill. Dec. 774.) Where defendant is a juvenile, the utmost care must be taken to insure that the confession was voluntary and not coerced. In re Shutters (1977), 56 Ill. App. 3d 184, 187, 370 N.E.2d 1225, 13 Ill. Dec. 198.

All officers who testified in this case, including Officer Miller who was the alleged perpetrator, denied that defendant was physically abused or threatened. Further, there is no evidence in the record that defendant suffered any swelling, bruises or injuries. Although the defendant and three other participants in the lineup testified that Officer Miller physically abused him, the court found their testimony incredible.

On a motion to suppress, it is the function of the trial court, not this court, to determine the credibility of the witnesses and the weight to be given their testimony and the inferences to be drawn from the evidence. ( People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) Therefore, we cannot say that the trial court's determination was against the manifest weight of the evidence.

Defendant further argues that because there was no parent or juvenile officer present at the time he was questioned, any incriminatory statements that he made were inadmissible pursuant to the Juvenile Court Act. (705 ILCS 405/2-14 (West 1992)). The statute requires the law enforcement officer who takes a minor into custody, without a warrant, to immediately make a reasonable attempt to notify the parent or other person legally responsible for the minor's care that the minor is in custody, and also to notify the nearest juvenile officer. The State contends that the Act does not apply.

While there is persuasive authority that the Juvenile Court Act applies to the instant case, People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33, 107 Ill. Dec. 369; People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635, 118 Ill. Dec. 965; and People v. Travis (1984), 122 Ill. App. 3d 671, 462 N.E.2d 654, 78 Ill. Dec. 535, a juvenile does not have a per se right in Illinois to consult with a parent before questioning or to have a parent present during questioning. ( People v. Brown (1989), 182 Ill. App. 3d 1046, 538 N.E.2d 909, 131 Ill. Dec. 534; In re S.D.S. (1982), 103 Ill. App. 3d 1008, 431 N.E.2d 759, 59 Ill. Dec. 258; cert. denied (1982), 103 S. Ct. 153.) Further, the presence or absence of a parent is only one factor to be considered in evaluating the voluntariness of a statement or confession. ( Brown, 182 Ill. App. 3d at 1052.) The court must consider the totality of the circumstances surrounding the making of the statement, including the existence of ...


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