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06/22/95 PEOPLE STATE ILLINOIS v. ANGELO RIVERA

June 22, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ANGELO RIVERA, APPELLANT.



The Honorable Justice Harrison delivered the opinion of the court:

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

Following a second trial in the circuit court of Cook County, convicted defendant, Angelo Rivera, of the first degree murder of Zelia Simmons. Defendant was subsequently sentenced to an extended term of 80 years' imprisonment. The appellate court affirmed the circuit court's judgment (No. 1-92-1613 (unpublished order under Supreme Court Rule 23)), and we allowed defendant's petition for leave to appeal (145 Ill. 2d R. 315). Defendant now raises three issues for our review: (1) whether the uncorroborated testimony of an accomplice was sufficient to prove defendant guilty beyond areasonable doubt; (2) whether the trial court erred in failing to admonish the jury that the accomplice jury instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (3d ed. 1992) (hereinafter IPI Criminal 3d No. 3.17)) applies only to the State's witness and not to the defendant's witness; and (3) whether the defendant's sentence was unconstitutionally increased following his second trial from 60 to 80 years' imprisonment, based on aggravating factors occurring between the two trials. For the reasons which follow, we affirm.

This case has an extensive history. Originally, defendant was convicted of murder following a bench trial and sentenced to 60 years in prison. On direct appeal, the appellate court affirmed defendant's conviction. (165 Ill. App. 3d 1158 (unpublished order under Supreme Court Rule 23).) However, defendant's first degree murder conviction and 60-year sentence were reversed by the Federal court of appeals, which granted defendant habeas corpus relief and remanded the cause for a new trial. Rivera v. Director, Department of Corrections (7th Cir. 1990), 915 F.2d 280.

At the second trial, the evidence showed that during the early morning hours of February 10, 1985, the victim's body was discovered by Chicago Police Officers Scott Alberts and Paul La Rosa in an alley in Chicago. The officers observed a trail of blood leading from the victim's body and followed this trail to the apartment of codefendant Richard Norman. The officers further observed a large amount of blood at the entry of the apartment, peered in and noticed that the living area was in disarray and covered in blood.

At this time, outside Norman's apartment, a neighbor, Beverly Besser, told one of the officers that she had seen Norman helping a woman who had fallen in the snow around 3 a.m. The police then arrested Norman, and he confessed that same evening. In his confession, Norman stated that he alone had beaten the victim in his apartment the previous evening.

During the course of their investigation, the police discovered that defendant and Jeff Meger were also present in the apartment with Norman during some portion of the night. On the evening Norman confessed, Meger gave a court-reported statement in which he told the police he saw Norman hit the victim with his fists. Meger did not implicate defendant. In addition, Meger testified before a grand jury, naming only Norman. Norman was eventually convicted and sentenced to a term of natural life imprisonment.

Two days after his grand jury appearance, Meger implicated defendant in the murder. Meger informed the police that he saw defendant pick up a headless hammer and hit the victim with it. After speaking with Meger, the police brought defendant to the police station for questioning. Detective Thezan and his partner read defendant his Miranda rights and began questioning him concerning the murder. At defendant's trial, Thezan testified that during the course of their interview, defendant indicated that on the night in question, he and Meger were at Norman's basement apartment when Norman arrived with the victim. During the questioning, defendant informed Thezan that Norman suggested that they have sexual relations with the victim, but he declined. Defendant mentioned that later, he entered the apartment bedroom area and saw Norman in bed with the victim.

After questioning defendant, Thezan took Meger into defendant's interview room where Meger gave his account of the events leading to the murder, including defendant's participation in the murder, in the presence of defendant. Detective Thezan testified that thereafter, defendant gave a different version of the events. In his second version, defendant claimed that he heard athumping sound coming from the bedroom and when he went to check on what it was, he saw Norman standing above the woman hitting her with a two-by-four. According to defendant, he and Meger then left the apartment separately, and later ran into each other at the Golden Nugget Restaurant. Shortly after speaking with the police, defendant was arrested.

By the time defendant's second trial occurred, Meger had died, and his testimony at defendant's first trial was presented by a reading of the trial transcript to the jury. Meger, a twice-convicted felon, stated in relevant part that he, defendant, and Norman were drinking at Norman's apartment on the night of the murder. Meger testified that when they ran out of beer, defendant and Norman went to Shirley's Bar to get more beer. Meger stated that defendant returned first, carrying the beer, followed by Norman, who was accompanied by the victim. According to Meger, the victim sat on a bed in the basement and Norman sat on one side of her while defendant sat on her other side. Meger further testified that the victim appeared to be "high" and began to partially disrobe with Norman assisting her. At this point, Meger claimed that defendant said something to the effect that he was going to engage in sex with the victim. Meger also recalled that Norman tried to get on top of the victim, but she pushed him away. According to Meger, after the victim resisted, Norman hit the woman several times with his fists, and then with a board.

Meger claimed that he grabbed Norman, pulling him away, only to see defendant strike the victim two or three times on the head with a hammer handle. Meger asserted that he also stopped the defendant, but then told him that "he was gone" and left for approximately 20 minutes. When Meger returned, he saw the victim's body and noted that there was a lot of blood on the mattressand pillow. Meger recalled that both defendant and Norman were still in the basement, and Norman dragged the body out of the basement towards the gangway.

Meger stated that he and defendant then went to the Golden Nugget Restaurant. Meger maintained that on the way to the restaurant, defendant told him that if he said anything about what happened something would happen to him. Meger interpreted this warning to mean that he might be killed. Meger testified that when he spoke to the police the day after the murder, he revealed nothing about defendant's involvement due to the threats defendant made against him. It was only after defendant was in custody that Meger implicated him for the murder, in his presence at the police station.

In contrast to Meger's testimony, at defendant's second trial, Norman claimed that he acted alone in the murder of the victim. Norman testified that on the night in question, when the men ran out of beer, he went to Shirley's and was told by the bartender that he could have more beer for free if he would remove the highly intoxicated victim from the bar. Norman indicated that he agreed to this proposition, and dragged the victim to his apartment. Norman stated that the victim took off her blouse while sitting on a bed. Norman recalled that defendant and Meger then went into the kitchen. According to Norman, defendant came back out and stated that he was leaving and shortly thereafter Meger came out of the kitchen to inform Norman that defendant had left.

Norman recounted that at some point he just "snapped" and began hitting the victim in the head with a hammer. Norman claimed that Meger came into the room, grabbed the hammer and threw it, so Norman began striking the victim with a crowbar. According to Norman, Meger also grabbed the crowbar and threw itdown, so Norman began striking the woman with another object. At this point, Norman claimed that the victim was dead, and he and Meger wrapped her in carpet and took her out to a ...


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