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People v. Lozano

September 05, 2000

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE
V.
MARK LOZANO,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 97 CR 27902 The Honorable James B. Linn, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

The defendant, a Chicago police officer, was charged by indictment with armed robbery, attempt (armed robbery) and two counts of official misconduct. The charges were based on an encounter that the defendant and his brother-in-law had with two men outside a restaurant. The defendant searched one of the men at gunpoint while his brother-in-law searched the other man. The defendant found nothing on the man that he searched but his brother-in-law allegedly took money from the wallet of the other man. The defendant made a motion to suppress evidence and quash arrest on the grounds that police officers seized evidence and arrested him after entering his apartment without his consent and without a warrant. The trial judge denied the motion, finding that the defendant had freely given his consent for the officers to enter his apartment, that the evidence seized was in plain view and that the officers had probable cause to make the arrest.

A jury convicted the defendant of armed robbery and the count of official misconduct based upon the armed robbery, but acquitted him of attempt (armed robbery) and the count of official misconduct predicated upon the attempt. The trial court sentenced the defendant to a term of seven years imprisonment for the armed robbery conviction and a concurrent term of two years imprisonment for the official misconduct conviction.

The defendant now appeals, arguing that his convictions must be reversed because: (1) the trial court erroneously denied his motion to suppress evidence and quash arrest; (2) the jury's verdicts were legally inconsistent; and (3) the trial court erroneously allowed the prosecution to elicit on cross-examination both that the defendant's brother-in-law had previously been convicted of a felony and that there was a police department policy against officers associating with known felons.

We affirm.

BACKGROUND

Defendant Mark Lozano, a Chicago police officer, testified that around midday on September 29, 1997, he and his friend Arturo Munoz were going to a local gym. Lozano did not have his service weapon and police identification with him at the time. As they were driving, a car suddenly pulled out in front of them, blocking their way. Immediately thereafter another car pulled out and blocked their way from the rear. Several individuals got out and surrounded Lozano's car while flashing gang signs and yelling slogans. Lozano understood from the slogans that they were members of a local street gang who thought that Lozano and Munoz were members of a rival gang. Lozano and Munoz told them that they were not members of that or any other gang. During the altercation that ensued, one of the men threw a rock through the windshield of Lozano's car. Munoz told the men that Lozano was a police officer and the men scattered. Lozano tried unsuccessfully to catch the person who had thrown the rock.

Lozano testified that he and Munoz then went on to the gym where he called the police. The police operator advised Lozano to return to the scene of the altercation where a squad car would meet them. They waited at the scene for about 10 minutes for the squad car to arrive and when it failed to appear they went to Lozano's apartment to again call the police. This time the police operator told them they could file a report over the phone. Munoz then filed a report. Lozano got ready for his shift which was 3 p.m. to 11 p.m.

When Lozano finished his shift, he went to his brother's house. His brother-in-law Thomas Gonzalez (Thomas) also lived there. Lozano still was wearing his uniform trousers and shoes. Lozano and Thomas left to go to Tito's Hacienda, a nearby restaurant. Outside the restaurant Lozano saw someone resembling one of the gang members who participated in the confrontation earlier that day. That individual, Lehman Benaga, was speaking with another man, José Gonzalez (José). Lozano and Thomas parked the car. As they walked toward the restaurant, Lozano thought he saw Benaga make a motion as if to reach for a weapon. Lozano asked Benaga where he could find some tacos. Benaga directed him to another restaurant. Lozano and Thomas started to walk away and then Lozano drew his service weapon, a chrome-finished 9 millimeter semiautomatic, placing it to Benaga's neck. Lozano then identified himself as a police officer and performed a pat-down search. Seeing out of the corner of his eye that José was approaching, Lozano called out for Thomas to help him. Thomas threw José up against a wall and searched him. Lozano put away his weapon when he found that Benaga was not armed. Benaga did not believe that Lozano was a police officer, so Lozano showed Benaga his badge. After a brief argument with Benaga and José, Lozano and Thomas left.

Lozano went home after dropping off Thomas. He parked his car in an alley near his apartment building and started walking back toward Tito's Hacienda. Soon afterward, two police officers, James Flores and Robert Poremba, pulled up beside him in an unmarked car. Poremba asked Lozano what he was doing. Lozano showed his badge and identification. Lozano asked if they had caught the people who had smashed his windshield. They told him that they did not know anything about that. Lozano said, "This is stupid, I'm going to go home."

Lozano testified that he went home and went to bed. An hour or two later, there was a knock at his door. When he opened the door, about six police officers, led by Police Sergeant William Dunn, entered without asking permission. Some of the officers started searching the apartment. Lozano asked what was going on, but received no answer. Lozano then asked for everybody to leave except Sergeant Dunn. Dunn responded that he was the one in charge and pointed to the sergeant's stripes on his uniform. Dunn then ordered Lozano to come with them to the station. Officers took Lozano's badge, handgun and a pellet gun, all items which were lying on the kitchen table.

José and Benaga testified that, although they were standing near each other outside the restaurant on the night of the robbery, they did not know each other. Lozano and Thomas came up to them and Lozano asked where they could get some tacos. Benaga told them that Tito's was open. Lozano and Thomas started toward the restaurant, but then Lozano spun around, pulled out a chrome-finished handgun and put it to Benaga's neck. He searched Benaga but did not find anything. Thomas threw José up against a wall. Lozano said that he was a police officer and displayed his badge. Thomas took out José's wallet and removed about $70. José asked him "Why are you taking my money?" Lozano started back towards the car and Thomas followed him, counting the money. Thomas went back briefly and gave José a few dollars "for the bus." A bystander, Joel Campos, said "They're not police officers. Write down their plate number." Campos wrote down the number and called the police. Later, José and Benaga went to the police station and identified Lozano in a lineup.

Campos testified that as Thomas and Lozano walked away after giving José the bus money they were laughing and Lozano said "gracias." Campos made a tentative identification of Lozano at the police station, but admitted that he was not positive he was correct.

Officer Poremba testified that he and his partner, Officer Flores, were patrolling in their unmarked car when they received a call about an armed robbery in the area of Tito's Hacienda. A physical description of the suspects was provided, along with a description of their car and the license plate number. According to the report, one of the offenders had claimed to be a police officer. Poremba and Flores noticed Lozano walking near the scene of the robbery and asked him what he was doing. Lozano said he was a police officer and showed ...


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