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08/30/96 PEOPLE STATE ILLINOIS v. AUGUSTINE M.

August 30, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
AUGUSTINE M. TORRES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 94-CF-778. Honorable James T. Teros, Judge, Presiding.

Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable John F. Michela, Justice. Justice Michela delivered the opinion of the court. Holdridge, P.j. and McCUSKEY, J., concur.

The opinion of the court was delivered by: Michela

JUSTICE MICHELA delivered the opinion of the court:

A jury convicted Augustine Torres of aggravated battery (720 ILCS 5/12--4(b)(1) (West 1994)) and first degree murder (720 ILCS 5/9--1(a)(1) (West 1994)). Torres appeals his convictions arguing that (i) the trial court erred when it denied his motion to quash his arrest; (ii) the trial court erred when it denied his motion to suppress his inculpatory statements; (iii) the trial court erred when it interrupted defense counsel during closing argument; (iv) the trial court erred when it denied Torres' request for involuntary manslaughter and aggravated battery jury instructions; (v) that Torres received the ineffective assistance of counsel at trial and, (vi) that the trial court abused its discretion in sentencing Torres to concurrent terms of 40 years incarceration for first degree murder and 5 years incarceration for aggravated battery. We disagree and, for the following reasons, affirm the convictions.

On October 1, 1994, the 16-year-old defendant, Augustine "Augie" Torres and Jamie "Boomer" Lopez and Anthony "Tony" Olvera drove past Chad Van Klavern and Craig Jordan as they crossed 12th Avenue to 26th Street in the city of Moline. Olvera testified that Lopez was provoked when Van Klavern and Jordan gestured at their passing car and that Lopez wanted to scare Van Klavern and Jordan by "jumping" them. Lopez asked the defendant if he wanted to "jump" Van Klavern and Jordan too and, although he did not see the gesture, he agreed. When the car caught up with Van Klavern and Jordan, Lopez instructed Olvera to drive down an alley, park and turn the car's headlights off.

Lopez then grabbed the "club", disassembled it into two pieces and gave the defendant the smaller piece while he kept the larger piece that contained the locking mechanism. Lopez opened the car door, the defendant followed, and Lopez directed him to crouch as they hid by a concrete retaining wall. Jordan and Van Klavern continued walking toward the intersection of 26th Street and 11th Avenue B when Jordan looked to his left and saw two people squatting by a concrete wall who then rushed him and Van Klavern.

The defendant testified that Lopez made the first rush and attempted to strike Jordan but the swing did not connect and Lopez then attacked Van Klavern. The defendant joined the fray using his fists to strike Jordan but testified that he felt sorry for Jordan and stopped beating him. The defendant testified that he then watched Lopez and Van Klavern and saw Lopez bring the "club" down on Van Klavern's head, heard Van Klavern screaming, then moaning, but offering no resistance. The defendant testified that he grew scared of Lopez and the wild and crazy way in which Lopez was acting and he screamed, to no avail, for Lopez to stop. The attack ended when two neighbors yelled and Lopez and the defendant went to the waiting automobile, deposited their portion of the "club" in the automobile and drove away.

Moline police officer Timothy Krakovec was dispatched at 12:38 a.m. on October 2, 1994, to 26th Street and 11th Avenue B. Krakovec summoned medical help and Van Klavern was transported to the Trinity Medical Center trauma unit and placed on life support; however, he died a short time later. Jordan left the scene and went home where his foster mother called an ambulance and Jordan was taken to Trinity Medical Center. Krakovec spoke with Jordan at the hospital and Jordan gave a description of Olvera's car which was broadcast over the Illinois State Police Emergency Response Network.

At 3:30 p.m. on October 2, 1994, an anonymous crime-stoppers tip to the Moline police department regarding the incident led Lieutenant Steven Brockway of the Moline police department to instruct trained juvenile Moline police officers Ricky Hodge and Matt Sottos to bring the defendant in for questioning. Hodge and Sottos arrived at the Torres family residence between 6:00 and 6:15 p.m. where Hodge spoke with the defendant's father. Upon learning that the defendant was home, Hodge requested and received permission to speak with him and examine his room. Hodge knew that Van Klavern had died earlier in the day and that the defendant was a possible suspect in a homicide investigation but did not communicate this fact to the defendant, his parents or to Sottos.

Instead, Hodge told the parents that the police needed to speak with the defendant at the police station about an incident that happened in the early morning hours of October 2, 1994. Mrs. Torres asked if her son had done anything wrong and Hodge replied "no." The parents then asked whether they should accompany the defendant to the police station and Hodge answered that while they could come to the police station, it was not necessary because the police would bring him home when the questioning was completed.

Meanwhile, Sottos was speaking with the defendant and obtained his agreement to come to the police station to discuss an incident which happened in the early morning hours. Mrs. Torres asked to speak with the defendant before he left for the police station and was permitted to do so. Mrs. Torres spoke to her son in Spanish and when she was through he left for the police station. Sottos gave the defendant verbal and written Miranda warnings in the police car but no questioning took place during the 3 to 5 minute ride to the police station. Upon arriving at the police station at approximately 6:40 p.m., the defendant was taken to the second floor and seated in an interview room and given Miranda warnings once more at 7:09 p.m. Defendant indicated that he understood his rights and gave an oral statement which implicated him in the beating and death of Van Klavern and the beating of Jordan. After completing the oral statement, the defendant was told that Van Klavern had died and that he was under arrest and, at 7:50 p.m. he agreed to make a written statement.

The defendant's parents were worried when their son was not returned to them by the police and they went to the police station, arriving at 8:00 p.m. Mrs. Torres stated she wished to speak with her son and eventually Lieutenant Brockway took both parents to a second floor conference room where he told them their son was being interviewed about a beating incident that happened in the early morning hours. Brockway did not tell the parents that their son was being interviewed about a homicide investigation but instead said that when the police "knew [what] the situation [was] with [the defendant]" the police would then be in touch with the parents. Brockway then asked them to wait in the conference room since the police were still in the process of interviewing their son.

After the defendant's oral confession, Hodge left the interview room to tell Brockway that a confession had been obtained. Brockway then instructed Hodge to tell the parents that their son had confessed and the police would be contacting the State's Attorney's Office regarding possible charges. Defendant was charged with two counts of first degree murder (720 ILCS 5/9--1(a)(1) (West 1994)) and two counts of aggravated battery (720 ILCS 5/12--4(b)(1) (West 1994)). Defendant pled not guilty, requested a trial by jury and was subsequently convicted of the first degree murder of Van Klavern and the aggravated battery of Jordan. The defendant appeals both convictions.

Defendant first argues that when he was taken to the police station for questioning he was arrested without probable cause and requests that his arrest be quashed and his confession suppressed as the fruit of an illegal arrest. The State counters this argument by claiming that the defendant was not arrested because he voluntarily consented to accompany the police to the station and agreed to submit to police questioning and was not placed under arrest until he implicated himself with an oral confession. Alternatively, the defendant argues that his consent to accompany the police and submit to police questioning was vitiated by an act of police subterfuge designed to obtain his and his parents' consent. Following a pre-trial hearing on the defendant's motion to quash his arrest and suppress his inculpatory statements, the trial court ruled that he was not under arrest when he agreed to accompany the police to the police station for questioning and that his ...


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