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11/15/94 PEOPLE STATE ILLINOIS v. MARCUS GONZALEZ

November 15, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARCUS GONZALEZ, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE MICHAEL B. GETTY, JUDGE PRESIDING.

Released for Publication January 13, 1995.

Scariano, DiVITO, McCORMICK

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

At about 11:30 p.m. on July 4, 1989, Michael Vasquez, a seventeen-year-old reputed gang member, was found fatally shot behind 3134 S. Morgan Street in the north-south alley between 31st Place and 32nd Street in the City of Chicago. An unidentified witness told police Officer James Entress that he saw Richie Maldonado, who was wearing a black cut-off sweatshirt, running from the scene shortly after the shooting. Maldonado, while denying any involvement in the shooting, told police that he had seen Michael Lovering earlier that evening wearing a black cut-off sweatshirt; Lovering is about the same height and weight as Maldonado.

At about 12:30 a.m., Entress and his partner arrived at the three-flat building where Lovering was staying with Wanda Maldonado, Richie Maldonado's sister. Entress testified that from his car in front of the three-flat, he was able to see into a third-floor living room; that he believed that he saw Lovering and two other men at the window; and that the men fled towards the rear of the apartment when they saw the police car. A resident of the apartment allowed the officers inside where they found three young men, including defendant, playing cards at the kitchen table. Defendant, who is about eight inches shorter than Richie Maldonado and Lovering, was not wearing a black cut-off sweatshirt. Entress observed a revolver and a BB gun on the bed in the bedroom about 15 feet from the kitchen. All the men denied that they owned the guns. Entress then arrested the men and two women who were also present in the apartment; the arrest was warrantless.

Defendant was subsequently charged by indictment on two counts of first-degree murder. At the hearing on defendant's motion to quash his arrest and suppress all evidence stemming from it, the court found that Entress' account of the events leading to the arrest lacked credibility, that there was no connection between defendant and the guns, and that defendant was not a suspect in the murder at the time of the arrest. Holding that the police did not have "one whit of probable cause to arrest the defendant," the court granted the motion.

The State then filed an attenuation motion, arguing that certain evidence obtained while defendant was under arrest should be admissible. At the hearing on the motion, Officer Fred McKinley testified that defendant and Maldonado participated in a lineup in the early morning hours of July 5, 1989. After the lineup, defendant was placed in an interview room and Maldonado was returned to a temporary cage. McKinley testified that at about 3 a.m., Maldonado told him that before the lineup defendant had confessed to the shooting.

McKinley then interviewed defendant after first advising him of his Miranda rights. Initially, McKinley testified that he informed defendant in the presence of the other participants that he had been identified in the lineup; later he stated that he did not tell defendant that he had been identified until after he had been brought to the interview room. While detained in the interview room, defendant signed a confession in the presence of an assistant State's Attorney. Upon questioning by the court, McKinley conceded that Maldonado was not known to the police as a reliable informant, and that at the time of the lineup, he was the only suspect in the shooting investigation. However, McKinley asserted that Maldonado knew that he had not been picked out of the lineup and that he was no longer a suspect before he revealed that defendant had confessed to him.

The State argued that the lineup identification of defendant, his conversation with Maldonado, and his subsequent confession were intervening factors which sufficiently purged the taint of the illegal arrest, and therefore, should not be suppressed. However, because there was no direct testimony that defendant had been identified in the lineup and McKinley's testimony was contradictory, the court denied the State's motion for attenuation and ruled that the motion to quash arrest and suppress evidence remained in full effect.

Defendant filed a motion in limine seeking to suppress the testimony of Enrique Hernandez on the ground that the State discovered him through defendant's illegally obtained confession and that it failed to show that it would have discovered Hernandez through independent investigation. The court denied the motion; and although defendant renewed the motion at the commencement of his bench trial, the court again denied it.

At trial, Arthur Julian testified that he was sitting on a neighbor's porch on South Morgan at about 11:30 on the night of July 4, 1989, when he saw the victim walk from a parking lot into the alley that runs between 31st and 32nd Streets [sic ]. He then saw two people enter the alley from 31st Street [sic ] walking south, towards him, as the victim walked away from him, towards 31st Street [sic ]. Julian testified that defendant said something to the victim, at which time the victim raised his arms approximately parallel with his shoulders. Julian recalled that defendant then knelt on his right knee and held an object in his extended right hand; Julian could not identify the object as a gun. He then heard what sounded like fireworks and saw the victim fall. Julian estimated that defendant was about 100 feet from him when he saw him crouch down. Julian testified that at first he did not recognize defendant, but later he recognized him "in a lineup." He stated that although he had never met or spoken with defendant, he had seen him about four times "in the projects," the most recent occasion being one week prior to the shooting.

On cross-examination, Julian admitted that he had told the grand jury that he viewed the shooting from his porch, not a neighbor's porch; nonetheless, he insisted at trial that he witnessed the shooting from his neighbor's porch. Upon further questioning, he indicated that he was not sitting on Morgan Street; rather, he was four houses off Morgan on 32nd Street where he had a view of the alley "from 32nd to 31st" [sic ].

In response to defense counsel's question regarding whether anyone had shown him a picture of defendant before he testified, Julian responded, "just the lineup." Defense counsel then moved to strike Julian's testimony relating to his identification of defendant. The court denied the motion, stating that the photograph and the fact of the lineup were excluded, but that "there is nothing that prohibits the State's Attorney from using that outside the courtroom" in ways he "deems appropriate."

Hernandez testified against defendant, conceding that he had an unrelated murder charge pending against him and that he expected "some consideration" from the State in exchange for his testimony. He stated that at the time of the shooting, he and defendant were members of the Satan Disciples street gang. They and some other young men went to two taverns trying to buy beer, but both were closed. Hernandez recalled that he and defendant subsequently separated from the others and walked towards the alley between 31st and 32nd Streets [sic ]. As they entered the alley, which was in rival gang territory, they saw the victim walking towards them. The victim threw his arms up in a gesture calling for a fight and said, "what's up pussys" [sic ]. Hernandez asked the victim what was "up" and he responded by putting his hands in his waistband and then on his crotch. At this point, Hernandez was about five feet in front of defendant and the victim was about 10 feet away from Hernandez. He then heard a shot and saw the victim fall. Defendant and Hernandez both ran to Wanda Maldonado's apartment where they were later arrested with the other occupants of the apartment. Shortly thereafter, Hernandez was released. He testified that while in the apartment, defendant admitted shooting the victim because "he had something."

Hernandez testified that he was again arrested on July 6 when he gave a statement to the police regarding the shooting and that he testified before the grand jury the next day. Later in his testimony, he stated that he turned himself in on July 6. Officer Garza testified that Hernandez was not under arrest on July 6 when he took him to Area 3 Violent Crimes, but that he was "under investigation for a homicide." However, when defense counsel showed him his supplementary arrest report, Garza conceded that it indicated that Hernandez had been arrested.

Officer Butler testified that he took photographs of the scene on the night of the shooting and that the alley was lighted at each end and at its middle "T" section, making it possible to see from the north end of the alley through to the south end with the center illuminated three houses each way, north and south. Officer Ostrowski also testified that the lighting illuminated the length of the alley. He stated that the victim's body was discovered about 30 feet from the "T" in the alley at 3134 South ...


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