The opinion of the court was delivered by: Justice Reid
Appeal from the Circuit Court of Cook County. Honorable James M. Schreier, Judge Presiding.
Following a bench trial, Ulises Arroyo was convicted of first degree murder (720 ILCS 5/9-1)(West 1996)) in the shooting death of Rudy Dellatorre just after midnight on June 14, 1997, during the street "celebration" which occurred after the Chicago Bulls won the NBA championship. He was sentenced to 35 years. On appeal, the defendant asserts that the trial court committed reversible error by not allowing the inculpatory statement of a non-testifying third person into evidence. Defendant also argues judicial error in denying his motion to suppress statements, and in limiting testimony regarding incidents of past violent acts committed by members of the street gang which had initially instigated violence. Defendant further argues his guilt was not proved beyond a reasonable doubt and his sentence was excessive. For the following reasons, we affirm the conviction and sentence.
Arroyo, a member of the Milwaukee Kings street gang, watched the championship game on television at his girlfriend's house. He is not a member of the Reese Park Imperial Kings. After the game, he went to meet another friend at the Apple Pantry near Fullerton and Marmora in Chicago. He had previously been told that, even though he was not an official member of the Reese Park Imperial Kings, he would be working security at the Apple Pantry in case anything happened. While this was transpiring, members of the Pachucos street gang were throwing bricks and bottles at cars passing through their territory. The Pachucos hit a car driven by Pedro Villalobos, a member of the rival Imperial Gangsters street gang. To help him retaliate, Villalobos recruited Imperial Gangsters as well as some of the Reese Park Imperial Kings. Villalobos went to the Apple Pantry and told everyone there, including Arroyo, what had happened to him. Several Imperial Gangsters and Reese Park Imperial Kings left the Apple Pantry, walking East on Fullerton toward Long where the bricks had been thrown. Once there, violence ensued.
Arroyo claimed he heard gunshots and someone's voice saying "they are bursting!" He claims he was told to shoot. Arroyo pulled his gun and shot in a northerly direction, up and over the heads of the crowd. He then left the scene to put the gun back in the Kings' hiding spot. Arroyo claims he did not aim at anyone specific and did not know anyone had been shot. When the shots were fired, Rudy Dellatorre was standing in the middle of a group of 20-25 people, waving a Mexican flag. Dellatorre was shot during the gunfire. He died the next day at Illinois Masonic Hospital.
While those events were transpiring, another group led by Oscar Molina and Luis Villalobos drove in a van painted a dark color to Fullerton and Long and opened fire on the Pachucos standing on the corner. On June 15, 1997, Molina and Villalobos were arrested. Molina confessed that he thought he hit someone while shooting his .9mm handgun. Villalobos' statement corroborated Molina's statement. After Molina gave his statement, he fled the jurisdiction and was a fugitive at the time of Arroyo's trial.
Also, on June 15, 1997, at approximately noon, Arroyo was taken into custody by the police and brought to Area 5. Arroyo made a statement to the police in which he confessed to the crime orally and in a signed, handwritten statement.
During pre-trial discovery, Arroyo filed a motion to suppress his statement. Arroyo claimed that the police had violated his fifth amendment rights because he was physically and psychologically coerced into confessing. At the time of the interrogation, Arroyo had no attorney present and no one from his family had been notified of his arrest. He was not arrested pursuant to a warrant and was not being interrogated by the arresting officers.
At the hearing on the motion to suppress, Arroyo testified that the police never informed him of the charges against him and refused upon request to allow him contact with an attorney. When Arroyo showed the police his attorney's business card, he claimed they tore it up and began slapping him. After a full day of interrogation which he claimed lasted 30 hours, Arroyo claims he succumbed to the pressure and signed the five-page statement written by an Assistant State's Attorney. The claim that Arroyo was interrogated for 30 hours is disputed by the State. The arrest report shows that he was arrested June 15, 1997 at 8:30 p.m. The handwritten statement states it was created June 16, 1997 at 12 p.m. Both of these documents are contained in the common law record. By the State's calculation, Arroyo was interrogated for only 16 hours.
During the motion to suppress, the defense called Arroyo, his mother Yolanda Sharon, and his girlfriend Lindora Cox. Arroyo testified he was threatened, coerced and hit in the head during the interrogation process. He also accused the police of preventing him access to his attorney by tearing up the attorney's card, which Arroyo carried. Arroyo's mother and girlfriend testified they had been looking for him the entire time he was being interrogated. The girlfriend testified that the police denied having Arroyo in their custody, even though he had been there for quite some time. The mother and girlfriend claimed they knew the police were lying because they saw Arroyo's car in the parking lot.
The investigation was conducted by Detectives Engel and Sofrenovic. At the motion to suppress, the State called Engel, who testified that he conducted a brief interview shortly after Arroyo arrived at the Area 5 station wherein he did not ask Arroyo about Dellatorre's death and did not mentally or physically coerce him in any way. He also denies that Arroyo requested his attorney or that the police contact Arroyo's family members.
Sofrenovic testified that he interviewed Arroyo at approximately 12:30 a.m. on June 16, 1997. He claims Arroyo was not cuffed at the time. Reading from a printed form, Sofrenovic informed Arroyo of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Sofrenovic testified that Arroyo indicated he understood his rights and agreed to speak. The interview continued from 12:30 a.m. to approximately 4 a.m. At that point, Sofrenovic testified he read the Miranda rights a second time. Sofrenovic allegedly told Arroyo that his story did not wash because two witnesses placed defendant at the shooting and that the police had recovered a gun.
Arroyo's statement was memorialized at approximately noon on the second day. At that point, Assistant State's Attorney Gallagher again read Arroyo his Miranda rights and took the statement. The statement was written by Gallagher, allegedly based on things Arroyo told him. Portions of the statement were read aloud in front of Arroyo, who made corrections which were initialed. Arroyo, Gallagher and Sofrenovic signed the statement once the corrections were made. The statement is nearly 5 ...