The opinion of the court was delivered by: Justice Wolfson
Appeal from the Circuit Court of Cook County.
Honorables James B. Linn, and Themis N. Karnezis Judges Presiding.
On May 12, 1995, Haberto Mendez sat through a hearing on his motions to suppress 998.9 grams of cocaine and an oral statement about the cocaine. The next day he watched as his jury was selected and the first day of trial testimony was completed. Then he left for parts unknown. The trial went on without him. The jury convicted Mendez of possession of a controlled substance with intent to deliver and the trial judge sentenced him in absentia to 20 years in prison. Four years later, in October of 1999, the defendant was arrested and brought before the trial judge. Another sentencing hearing was held. The sentence was reduced to 18 years.
On appeal, defendant contends: (1) the trial court erred in denying his motion to suppress the physical evidence; (2) the trial court erred in denying the motion to suppress his oral statement; and (3) the trial court abused its discretion by proceeding when defendant did not appear on the second day of trial.
On April 1, 1995, defendant was driving a car in Chicago when he was stopped by two police officers for failing to use a turn signal before turning at an intersection. According to the arresting officers, defendant could not produce a valid driver's license. When the officers searched the car, they found what they suspected to be a brick of cocaine. Defendant and his passenger were arrested. During a subsequent search of the car, the officers found two pagers and a cell phone.
While he was at the police station, defendant gave a short oral statement to an assistant State's Attorney. Defendant's attorney filed a pre-trial motion to suppress both the physical evidence obtained from the search of the car and defendant's oral statement.
At the hearing on the motions to suppress, Chicago police Sergeant Ricardo Pavon testified on April 1, 1995, at around 10:00 p.m., he was in an unmarked car with police officer Kenneth Stoppa. Officer Stoppa was driving. The officers' vehicle was directly behind defendant's, without any cars between them. Sergeant Pavon testified the officers stopped defendant after he failed to use a turn signal when he made a right turn at an intersection.
Sergeant Pavon identified defendant as the driver of the vehicle they pulled over. He approached the passenger's side of the car while Officer Stoppa approached the driver's side. When he approached the passenger's side, he shined his flashlight into the car. When he did, he saw a large white object that "looked like a white brick" on the floor of the car, close to the passenger's seat. The officer testified his experience as a police officer led him to believe the object might be cocaine.
Sergeant Pavon testified he asked the passenger to step to the rear of the car. Defendant had already been asked to exit the car by Officer Stoppa. Sergeant Pavon went back to the passenger side of the car, and retrieved the object he saw on the floor. Both men were placed under arrest and were advised of their rights.
Sergeant Pavon was not asked whether defendant affirmatively invoked his right to silence or if he attempted to question defendant after reading him his rights. The officer simply testified defendant said nothing after he read him his rights:
"Q: Did he say anything else to you?
A: After I read him his rights, no."
The men were taken to the police station where they were interviewed by an assistant State's Attorney. Sergeant Pavon remembered being present for one of the interviews because he had to act as an interpreter for the man in custody, who spoke only Spanish. The officer could not remember whether the interview was with defendant or the passenger of the car.
Officer Stoppa testified he was driving an unmarked squad car at around 10:00 p.m. on April 1, 1995. His partner that day was Sergeant Pavon. Officer Stoppa said he had been driving behind a car for less than a minute when the driver of the vehicle made a right turn without signaling.
Officer Stoppa turned on his lights and signal and stopped the car. The officer testified defendant was the driver of the car. As Officer Stoppa approached the car, he saw defendant hand a "white brick" to the passenger of the car.
Officer Stoppa asked defendant for his driver's license. Defendant said he did not have a license. At that point, Officer Stoppa asked defendant to get out of the car. Officer Stoppa said he searched defendant after he got out, then asked him to step to the rear of the car. Sergeant Pavon asked the passenger to step to the rear of the car, too, and then went back to the passenger's side and retrieved an object. Sergeant Pavon placed both men under arrest and advised them of their rights. Officer Stoppa said he issued two tickets to defendant, for failure to use a turn signal and no driver's license. Officer Stoppa testified defendant appeared to speak and understand English without difficulty. Again, Officer Stoppa was not asked whether defendant affirmatively invoked his right to silence:
"Q: And, officer, after he read them the Miranda rights from a pre-printed card, did Mr. Mendez make any statement?
A: He had nothing to say.
Q: Did he say anything that you can recollect?
Assistant State's Attorney Maureen McGee testified she spoke to defendant at the police station at around midnight on April 2, 1995. Chicago police officer Pritt was present. McGee said she began her conversation with defendant by asking him if he spoke English. When defendant said he did, McGee told him she was an attorney, but was not his attorney. He said he understood. McGee then advised him of his rights. Defendant indicated he understood each of his rights, but still wanted to speak with McGee.
McGee also remembered having interviewed the passenger in defendant's car. She said Sergeant Pavon translated during that interview because the man did not speak English.
Defendant testified on April 1, 1995, he was driving his sister's car when the police pulled him over after he made a right turn. Defendant said he signaled before turning. He said he never was asked for his driver's license. Defendant said Sergeant Pavon walked up to his side of the car and told him to get out of the car and place his hands on the trunk.
The trial court denied defendant's motion to suppress the physical evidence and his motion to suppress his oral statement.
Officer Stoppa testified again at defendant's jury trial. His trial testimony concerning the manner in which defendant was arrested and the car searched was substantially the same as his testimony at the hearing on the motions to suppress.
Francis Kent Manieson, a forensic scientist for the Chicago crime lab, testified he performed several tests on the white substance in the clear plastic package found in defendant's car. Manieson testified these tests revealed the bag contained 998.9 grams of cocaine.
Assistant State's Attorney McGee also testified at the trial. McGee again said defendant agreed to speak with her after she advised him of his rights. During that interview, defendant told McGee "some guy told him to drop the [package] off." Defendant told McGee he didn't know whose car he was in and said the passenger was his friend. At that point, defendant told McGee he didn't want to speak to her any more and McGee left the room. McGee testified defendant did not appear to have any trouble understanding her during their conversation.
McGee was the last witness to testify on the first day of trial. After she finished, the trial judge asked the jurors to be back at 9:15 the following morning. Before he left the bench, the judge told the parties he ...