The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Richard Neville, Judge Presiding.
Defendant Edward "Easy" Torres and co-defendants Timothy "Country" Davis, Michael "Red" Quinn, and Edward "White Boy Eddie" Scharringhausen were charged by indictment with the first degree murder of Rolland Stanisclaus, the attempted murder of Charles Mattison, and other offenses. Quinn pled guilty to first degree murder in exchange for a negotiated sentence of 28 years in the Department of Corrections. Davis was tried by a jury while the trial court conducted a simultaneous, severed bench trial of defendant Torres and co-defendant Scharringhausen. The jury acquitted Davis on the first degree murder charge, but found him guilty of attempted first degree murder and aggravated battery with a firearm. The court acquitted Scharringhausen on all charges, but found defendant guilty of the attempted first degree murder of Charles Mattison and the first degree murder of Rolland Stanisclaus on a theory of accountability. The court sentenced defendant to two concurrent 28-year sentences in the Illinois Department of Corrections. On appeal, defendant contends that: (1) the trial court erroneously denied defendant's motion to suppress the use of his statements at trial; and (2) his conviction is inconsistent with the jury's acquittal of co-defendant Timothy Davis on the charge of first degree murder and therefore must be reversed. For the reasons that follow, we affirm.
Defendant first contends that the trial court erroneously denied his motion to suppress his statements. Defendant claims that the arresting and investigating officers ignored his repeated requests for an attorney. The following facts were adduced at the suppression hearing.Judy Peterson testified on behalf of defendant. Peterson testified that on August 16, 1995, she was bartending at Tony and Lee's Lounge at 3900 N. Sheridan. At 7:30 p.m., approximately 10 or 12 police officers entered the bar and ordered all the patrons to put their hands on the bar. Peterson testified that two officers approached defendant, handcuffed him and took him out the front door of the bar with another male customer. As they led defendant out of the bar, Peterson heard defendant say "call my lawyer" and yell out a phone number. She estimated that defendant was approximately six to eight feet away from her at that time.
On cross-examination, Peterson admitted that as defendant yelled out "call my lawyer" and recited the phone number, she could not see his face and did not know whether he was speaking to her. She also stated that she did not know Tony and Lee's Lounge to be a "hangout" for the Latin Eagle street gang. She had known defendant for a "couple of years" but did not know he belonged to the Latin Eagles. She had, however, "heard it mentioned" that defendant used the nickname "Easy."
Sergeant Steven Caluris, from the Chicago police department, testified that on August 16, 1995, at approximately 7:30 p.m., he went into a bar located at 3900 N. Sheridan Road. Caluris went into the bar on other police matters, but upon entering the bar, recognized defendant as an individual wanted for questioning in a homicide investigation. Caluris noticed a black T-shirt with a gang logo on it hanging over the back of defendant's chair. Caluris and his partner, Officer Danielson, arrested defendant and transported him to the 23rd District for questioning. Caluris testified that he did not advise defendant of his rights while at the bar or at the 23rd District station. Caluris stated that defendant did not indicate to him that he wished to speak to an attorney, nor did Caluris hear defendant ask anyone else in the bar to call his attorney. Once at the 23rd District, Caluris telephoned Detective Villardita at Area 3 and then transported defendant to Area 3 headquarters at Belmont and Western. Caluris stated that he never saw defendant become ill nor did defendant ever claim to be ill while at the 23rd District.
Detective Villardita testified that on August 16, 1995, he was working in the Area 3 violent crimes unit of the Chicago police department when Sergeant Caluris contacted him by telephone. Caluris informed him that he had detained defendant at the 23rd District. Villardita asked Caluris to bring defendant to Area 3 headquarters. When defendant arrived at Area 3 headquarters at approximately 8:30 or 9 p.m., Villardita testified that he advised him of his Miranda rights from a Fraternal Order of Police book. Defendant indicated that he understood his rights after each was read to him. The two then discussed the murder of Rolland Stanisclaus in the presence of Villardita's partner, Detective Kaminski. At approximately midnight, an assistant State's Attorney, Laura Morask, arrived and advised defendant of his rights a second time. During the course of Morask's interview with defendant, defendant indicated that he would no longer speak without an attorney present. At that point, Morask terminated the interview and defendant used the telephone. Villardita testified that defendant never told him that he was feeling ill, nor did he appear to be ill. On cross-examination, Villardita admitted that defendant did not sign a written waiver of his rights, nor was his statement recorded.
Defendant testified that on August 16, 1995, he went to Tony and Lee's Lounge located at 3900 North Sheridan at 5:30 p.m. He testified that Judy Peterson was bartending that evening and there were approximately 15 or 20 other patrons in the bar at that time. Later, "around 10" police officers arrived and ordered everyone to place their hands up on the bar. Defendant identified Sergeant Caluris as the officer who approached him and placed him in handcuffs. Defendant testified that as Sergeant Caluris led him out of the bar, he "turned around and asked the bartender, I tried to direct it to the bartender, to please call my lawyer and I repeated his phone number."
The officers then put defendant into a "paddy wagon" where he told the driver that he felt ill. He stated that he was taken to the gang tactical unit at Addison and Halsted, where he was kept handcuffed for an hour and a half with nothing to eat or drink. He asked Caluris if he could speak to his lawyer but Caluris merely told him to "shut up." Defendant testified that he vomited into a garbage can in front of Caluris, who then asked him if he had "swallowed any drugs or anything." In the police car on the way to Area 3, he again asked to speak to a lawyer but Caluris again told him to "shut up." Defendant testified that once he arrived at Belmont and Western, he asked Villardita for medical attention. Villardita responded by saying, "We will get to you in a little while. You don't look sick." Defendant stated that Villardita read him his rights, after which defendant repeated his request to speak to an attorney. Villardita responded by saying, "soon as you answer a couple questions for me." Later, an assistant State's Attorney arrived. Defendant stated that she did not advise him of his rights and ignored his request to speak to an attorney. She proceeded to ask him questions regarding the homicide. He was not able to make contact with an attorney until the next day.
The State called Assistant State's Attorney Laura Morask as a rebuttal witness. Morask testified that on August 16, 1995, she met with Detective Villardita and defendant at Area 3 between 11:30 p.m. and midnight. She introduced herself to defendant and advised him of his rights. She then had a conversation with defendant which lasted for approximately 35 minutes. When Morask confronted defendant with inconsistencies in his story, he stated that he no longer wanted to talk to her without an attorney present. At that time, Morask terminated the interview and defendant used the telephone. Defendant did not become sick in her presence, nor did he tell her he did not feel well. On cross-examination, Morask stated that she did not present defendant with a written waiver of rights form.
Edwardo Jiminez, defendant's last witness, testified with the assistance of a Spanish interpreter. Jiminez testified that he was at the bar when "around six" police officers arrived. The police put the customers up against the wall, searched them and asked them for their names. The police handcuffed defendant. Moments before taking him out to the street, Jiminez heard defendant say, in English, that he wanted an attorney.
After closing argument by both sides, the court denied defendant's motion to suppress. The court found that the totality of the circumstances indicated that defendant both heard and understood his constitutional rights. The court found that defendant attempted to ask Peterson to call his lawyer, but that the evidence did not indicate that he ever directed such a request to the police. The court also found credible the officers' claims that they never heard defendant request an attorney. The court resolved the credibility issues in favor of the State and denied the motion.
At trial, the State called Jeremy Delk, a former Latin Eagle gang member, as its first witness. Delk testified that in the summer of 1995, the Latin Eagle street gang went to "war" with the "GDs," otherwise known as the Gangster Disciples street gang. At that time, the Latin Eagles had approximately 25 members and defendant served as ...