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12/13/95 PEOPLE STATE ILLINOIS v. KENNETH GARZA

December 13, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH GARZA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Ralph Reyna, Judge Presiding.

Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., And Rizzi, J., Concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Following a jury trial, defendant, Kenneth Garza, was convicted of first-degree murder (720 ILCS 5/9 (West 1992) and sentenced to 25 years' imprisonment. On appeal, he asserts that (1) his motion to suppress evidence was improperly denied; (2) improper opinion and character evidence prejudiced him; (3) the State improperly referred to his post-arrest silence and failure to testify; and (4) the State did not prove him guilty beyond a reasonable doubt. For the reasons that follow, we affirm.

On November 15, 1990, Donald Suarez's body was found in an alley at 9228 S. Brandon Street, Chicago. On April 19, 1991, Steven Mireles was charged with the murder after he confessed to committing the murder with Robert Garza, defendant's brother. Two days later, Chicago police officers searched the Garza brothers' apartment pursuant to the consent of the owner.

The following testimony was heard during the hearing on defendant's motion to suppress evidence. Defendant testified that on April 22, 1991, he and his brother Robert had been living on the second floor at 10011 S. Exchange Avenue, Chicago, for four years pursuant to an oral lease with the owner, Gloria Mendiola. They had not paid rent for three months, but had not received an eviction notice or five-day notice nor had Mendiola told them that she wanted them to move.

Chicago police detective, John McMurray, investigated the murder. After receiving information implicating the Garza brothers in the murder, he tried unsuccessfully to contact them, but did not attempt to get a search warrant for their apartment. On April 22, 1991, Mendiola told McMurray that she rented the apartment to the Garza brothers on a month-to-month basis without any formal lease. She had not received any rent from them since January, but that was not unusual. Neighbors had told Mendiola that the Garza brothers had moved out, but she was unable to gain access to the apartment because they had the only set of keys.

Upon McMurray's request, Mendiola signed a consent to search form and the Garzas' next-door neighbor accompanied him into the Garzas' residence. There were some items on the back porch and curtains on the window and back door obstructed the view into the apartment. McMurray admitted that he forced entry by leaning against the back door and popping it open.

According to McMurray, the apartment looked abandoned despite his seeing quite a few belongings in the kitchen. He claimed that he did not notice the food on top of the refrigerator or stove that were visible in the photographic exhibits. In the living room, McMurray saw a stereo, speakers, VCR, television, box of CDs, toboggan, and clothing. There were a lot of clothes in the bedroom, a .25 caliber handgun on the bedroom dresser, and a bullet hole in the bedroom wall.

Realizing that the apartment was still occupied, McMurray left the apartment. The next day, he returned with a search warrant and recovered several items including the gun, swabs of blood, a .38 caliber bullet from the wall, and photographs.

Defendant's motion to suppress was denied. The trial court found that the police officer acted in good faith in seeking information about the apartment's occupancy and had the right to enter the apartment pursuant to Mendiola's consent.

At trial, the following testimony was heard by the jury. Annie Snead, a 64-year-old woman, testified that she lived at 9224 S. Brandon Street on November 15, 1990. About 6 a.m., she heard six gunshots, then heard a car door slam and a car speed off. A few hours later, she went outside and saw a body in the alley behind the vacant lot next to her house.

Chicago police detective Michael Rowan testified that he began investigating the shooting at 11:30 a.m. on November 15, 1990. Suarez was lying at the side of a large alley. In addition to seeing two holes in Suarez's head, Rowan saw a small amount of blood around his mouth and on his tennis shoes, but saw no blood on the ground near him. Rowan found identification from Michigan and Chicago on the body.

After speaking with several people in the neighborhood, Rowan began looking for a red Toyota pickup truck with a white camper top. He also went to 10011 S. Exchange Avenue to speak with defendant, who was Suarez's cousin. Defendant stated that Suarez had been staying with him since moving from Michigan during the summer. According to defendant, Suarez, who did not have keys to defendant's apartment, left the apartment about 10:30 p.m. the previous evening to see a woman on 92nd Street and did not return.

Rowan learned through a certified copy of the registration that defendant owned a red Toyota pickup truck with a white camper top. In addition, he discovered phone records that indicated that Suarez had called a woman in Michigan from defendant's apartment at 1:57 and 2:27 a.m. on November 15, 1990.

As a result of his investigation, Rowan returned to speak with defendant. When told of the phone calls to Michigan, defendant suggested that Suarez, who had a key to the apartment, may have returned while defendant was asleep. Defendant also told Rowan that he gave Suarez $20 at 10:30 p.m. and that Suarez later returned to borrow another $18 so that he could buy a bus ticket to Michigan. Defendant related that there was talk on the street that a street gang had killed Suarez because he had cheated them in a $1,000 dope deal.

According to Rowan, defendant claimed that he had not seen Robert since he left for Florida a week before the murder and that a friend, Susan Herrera, from Orlando, Florida, had driven defendant's truck to Florida after she picked it up on the Saturday before the murder.

Steven Mireles testified against defendant in exchange for three years' imprisonment for the concealment of a homicide. He stated that he went to the Garza residence around 8 p.m. on November 14, 1990, where he sat drinking beer on the front porch with Robert, Suarez, Tony Barr, Michael Wigsmore, and Joseph Sansone. He had been friends with the Garza brothers for two years and knew their cousin, Suarez, who was living with them. Around 8:30 p.m., everyone but Mireles and Suarez left. Thirty to 45 minutes later, Mireles went home and fell asleep while watching television.

He was awakened around 3:30 a.m. by Robert knocking at his back door. Robert told Mireles that he and defendant had badly beaten Suarez because they caught him stealing from the house and weren't sure what to do with him. After Robert indicated he liked Mireles's suggestion that they ...


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