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People v. Dizon

June 29, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FERDINAND DIZON, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Gallagher

Appeal from the Circuit Court of Cook County

Honorable Edward M. Fiala, Jr., judge Presiding.

The victim in this case, Daniel Yum, was shot and killed on April 8, 1994, at approximately 5:15 p.m. On April 27, 1994, defendant, Ferdinand Dizon, was charged by indictment with first degree murder for the shooting death of the victim. Defendant filed pretrial motions to quash arrest and suppress evidence and to suppress the lineup identifications; the motions were denied. On June 3, 1996, after a jury trial, defendant was found guilty. Defendant's motion for a new trial was denied on August 12, 1996. On August 28, 1996, following a hearing in aggravation and mitigation, the trial court sentenced defendant to 40 years of imprisonment. Defendant's motion to reduce sentence was thereafter denied. Defendant now appeals his conviction and sentence.

On April 8, 1994, between 4:30 p.m. and 5 p.m., Sanday Som received a phone call from a friend, Glen Valdez. After speaking with Valdez, Som went to a mini-mall located at Lawrence and Kimball in Chicago to help the victim, who had locked his keys in his car. When Som arrived at the mini-mall he saw Valdez, Danny Kang and the victim. Valdez got a coat hanger from a nearby store for Som and then left. While attempting to retrieve the keys with a coat hanger, Som noticed that five or six young men were approaching from the west side of Kimball, which was the street where the victim's car was parked. These five or six young men were making gang signs and yelling gang slogans including "Akhro," "RSG," "CB," and "Dragon Killer." Som, a Cambodian, was not a member of a gang but he had heard gang terminology around his school. Som believed that "Akhro" referred to a Filipino gang because he had heard it yelled out by Filipinos in the past; "RSG" referred to the Red Scorpion gang, a Filipino gang; and "CB" referred to Crime Busters, a Filipino gang. When one yells "Dragon Killer" it means he is showing disrespect for the mainly Vietnamese gang known as the Dragons. Som knew the slogans to mean that these young men were members of the Red Scorpion gang. Som did not know whether Kang or the victim, both Koreans, were members of a gang.

A fight ensued during which Som fought off one boy and Kang fought off another and then ran. Som and the victim started to run away when defendant, wearing a black shirt, ran towards them. Som could see defendant's face because he was only a few feet away and it was daylight. Som and the victim continued running into the mini-mall parking lot. Som looked back and saw the defendant pull out a black gun from his waist and shoot the victim. Defendant then ran southbound. Later that day, around 10:30 p.m., Som went to the police station, where he identified defendant in a lineup.

At the time the shooting occurred, Officer Fred Allen was making a premise check at the nearby CTA station at 3353 W. Lawrence. He heard what could have been a gunshot outside and he exited the station. He proceeded to the corner of Lawrence and Kimball, where he saw two youths running very quickly across the street headed southbound. When they passed Officer Allen, the first youth dropped a black gun, which the second youth picked up and stuck in his waist or pocket. Officer Allen, who had drawn his gun, yelled at the youths to stop, but they refused. The first youth was wearing a black blue or dark colored shirt. The second youth, co-defendant in this case, Francis Calvadores, was wearing a red shirt.

Officer Allen called in a flash message of a man with a gun, along with identifications of the clothing that the two men were wearing, and his belief that they were Latino. A few minutes later, he heard a radio call that a person had been shot at Lawrence and Kimball and he went to that location. Sometime after that, Calvadores was brought to him and he identified him as the youth who had picked up the gun. He also identified the gun, which had been found on Calvadores, as that which he had seen picked up by Calvadores.

In between the time Officer Allen first observed the two youths and the time he identified Calvadores as one of them, Officers James Valenzano and Steven Schwieger, who were nearby in an unmarked police car and who had heard the flash message describing the fleeing youths, drove toward the general area. They saw two youths fitting the description. When they told them to stop, Calvadores did, but defendant ran. Officer Valenzano pursued defendant but was unable to catch him. During the chase, the defendant looked back several times and Valenzano was able to observe his face. Immediately after the chase, Valenzano radioed in a corrected description, noting that defendant was not Latino, but was instead Oriental.

Meanwhile, Officer Schwieger had searched Calvadores and found the gun. Calvadores was placed in a cage car. Schwieger received a flash message from the cage car that Calvadores would take them to where the shooter could be found. The officers had also received a flash message that a GEO tracker, license plate number RASEC 44, had been seen leaving the scene of the crime. When the officers arrived at the third location to which Calvadores had taken them, 3349 W. Sunnyside, Officer Valenzano saw the GEO tracker.

The officers knocked on the door. At first nobody answered, but officers who were stationed at the rear entrance saw a female open the curtain. When one of the officers flashed his badge, she went back inside and did not open the door. The officers could hear movement in the apartment, but still nobody opened the door. Finally, after 5 or 10 minutes, the door was opened by a man with a shotgun. The officers entered the apartment. There they saw defendant and several other Asian males, all of whom were arrested.

Eyewitnesses to the crime, Donald Morgan and Steven Csiki, gave testimony at trial which was corroborative of the above. In addition, Morgan identified defendant as the shooter.

Defendant's first argument on appeal is that the trial court committed prejudicial error in failing to suppress post-arrest evidence because the police had no probable cause to arrest him. Regarding this issue, the parties disagree as to the proper standard of review we must employ. A trial court's ruling on a motion to suppress will not be reversed on appeal unless it is manifestly erroneous. People v. Kidd, 175 Ill. 2d 1, 22, 675 N.E.2d 910, 921 (1996). This "manifestly erroneous" test is proper because suppression motions usually raise mixed questions of law and fact. People v. Frazier, 248 Ill. App. 3d 6, 12, 617 N.E.2d 826 (1993). It is only when neither the facts nor the credibility of witnesses is questioned that de novo review is appropriate. People v. Sweborg, 293 Ill. App. 3d 298, 302, 688 N.E.2d 144, 146 (1997). In the instant case, the defendant clearly challenges the credibility of the State's witnesses. Thus, de novo review is inappropriate here. Nevertheless, based on the facts of this case, our determination regarding probable cause would be the same even if we were to apply a de novo standard of review.

"Probable cause to arrest exists where the totality of the circumstances known to police officers at the time of arrest are sufficient to warrant a reasonably prudent person to believe that the suspect has committed a crime." People v. Patterson, 282 Ill. App. 3d 219, 227, 667 N.E.2d 1360, 1366 (1996), citing People v. Hendricks, 253 Ill. App. 3d 79, 88, 625 N.E.2d 304 (1993). When one considers the totality of the circumstances present here at the time of arrest, it is manifestly clear that probable cause to arrest existed. Furthermore, "[w]hen police officers are working in concert in investigating a crime or possible crime, probable cause may be established from their collective knowledge, even if it is not within the personal knowledge of the arresting officer." People v. Hendricks, 253 Ill. App. 3d 79, 89, 625 N.E.2d 304, 310 (1993).

In denying defendant's motion to quash his arrest and suppress evidence, the trial court summarized some of the facts known to the police at the time of the arrest. As the record, including the tape of the police radio transmissions, indicates, there was a plethora of information known collectively by the police at the time of the arrest. We will briefly summarize some of those factors here to illustrate why it is undeniable that the totality of the circumstances known to police officers at ...


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