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03/20/96 PEOPLE STATE ILLINOIS v. ROBERT HERNANDEZ

March 20, 1996

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



Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelley, Judge Presiding.

The Honorable Justice Tully delivered the opinion of the court: Rizzi, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

Following a bench trial, defendant, Robert Hernandez, was found guilty of first degree murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9-1 (now 720 ILCS 5/9-1 (West 1994))) and sentenced to 40 years' imprisonment. It is from the judgment of conviction that defendant now appeals to this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 603 (134 Ill. 2d R. 603).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

The following pertinent facts were adduced at trial. On August 4, 1991, at about 4 a.m., Ismael Robles, Lisa Kemic, John Thomas, Connie Velez, Bernadine Strunk and Jose Hernandez were sitting outside an apartment building at 2348 South Washtenaw Avenue in Chicago talking and drinking beer. Two men approached the group from around the corner, followed shortly thereafter by a third. An argument ensued, and one of the men shot and killed Ismael Robles. An autopsy revealed that the cause of death was a gunshot wound to the chest. On September 5, 1991, three Chicago police officers searched defendant's automobile and uncovered a .25 caliber automatic pistol in a secret compartment in the door of the car. Chicago police evidence technicians and a firearms examiner determined that the bullet retrieved from Robles's body had been fired from the recovered handgun.

THE SUPPRESSION HEARINGS

Before trial, the trial court held a hearing on defendant's motion to suppress physical evidence obtained from his automobile on the grounds that defendant did not willingly consent to the warrantless search.

Defendant testified that on September 5, 1991, at about 6 p.m., he was in the bedroom of his apartment, and his wife was in the backyard barbecuing. Three police officers arrived at the back door of his home, entered and began searching the apartment. Defendant recounted that the police did not present a warrant and did not seek his permission to enter or search the apartment. Subsequently, the police took defendant to their patrol car parked in an alley behind defendant's apartment and told him that he had to go to the police station. According to defendant, the police drove him approximately one-half block down the alley; then, they stopped the car and told him to sign a "consent to search" form. Defendant testified that he resisted, but the police told him that he had to sign the form. Defendant further testified that he quickly read the form but did not read it thoroughly nor understand it. Defendant stated that the police kept staring at him and told him that he had to sign it because they had a report that he was selling drugs from his garage. Defendant claimed that the police told him that they were only going to search the trunk of his car. Defendant then signed the form, and the officers then drove back to defendant's garage and began to search both the trunk and the passenger compartment of the vehicle. The police then told defendant that they were taking both him and his automobile to the police station. Defendant further stated that he never gave the police permission to take his automobile off the premises.

Christina Guteirrez, the occupant of the apartment beneath defendant's, and Olga Lopez, defendant's "common law wife", also testified for the defense. Guteirrez testified that she had been a friend of defendant's for about 8 years. Both Guteirrez and Lopez stated that they were in the backyard barbecuing when the police arrived at the apartment. Both witnesses testified that they observed the officers escorting defendant from the apartment to the squad car in the alley. Moreover, both witnesses attested that the police and defendant never stopped while on their way to the alley, and neither witness saw the officers or defendant with any papers or writing instruments. Both witnesses stated that they did not actually observe the police car leave the alley; nevertheless, they knew that the car had left. The officers returned with defendant approximately 5 minutes later. Guteirrez and Lopez then saw defendant open the garage door. Both witnesses also saw police take defendant's car and leave with him in their car.

Detectives James Hanrahan, Jack Boock and Mike Miller, the three officers that allegedly searched defendant's apartment and automobile, testified for the State. Hanrahan testified that when the officers arrived at defendant's apartment, they informed defendant that he was under arrest for murder. Hanrahan then gave defendant Miranda warnings, and defendant stated that he understood. According to Hanrahan, the police escorted defendant into the yard and informed him that they wanted to search his car for evidence related to the murder. The officers asked defendant to sign a "consent to search" form, to which he agreed. Hanrahan explained to defendant that he had the right to deny access to his automobile; however, Hanrahan testified that defendant said it was alright. Hanrahan stated that he instructed defendant to read the first paragraph of the form with him to ensure that defendant understood. Then, Hanrahan allowed defendant to continue reading to himself. Hanrahan denied that the police ever told defendant that they would only search the trunk of his car. After the consent form was signed, defendant opened the garage door. Because the garage was too cluttered to permit an effective search, Hanrahan asked defendant if the vehicle could be moved to police headquarters. According to Hanrahan, defendant consented and gave him the keys to the vehicle. Hanrahan denied ever taking defendant down the alley in the squad car or repeatedly telling defendant to sign the consent form. Furthermore, during his testimony, Hanrahan indicated that the police had received information from Frank Alvarado that defendant had a secret compartment in his car where he would conceal weapons and narcotics.

Boock and Miller also testified at the hearing and corroborated Hanrahan's account of the events. Moreover, Boock and Miller stated that the officers did not search defendant's apartment and that they never told defendant that he was suspected of selling drugs from his garage.

The trial court found that defendant was not in any way forced or threatened to sign the consent form but, rather, voluntarily gave his consent. Moreover, the court determined that defendant voluntarily removed the automobile from the garage. ...


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