Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Hernandez

Court of Appeals of Illinois, First District, Fifth Division

March 31, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
SERGIO HERNANDEZ, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 CR 364 The Honorable Thomas P. Fecarotta, Jr., Judge, presiding.

          GORDON PRESIDING JUSTICE delivered the judgment of the court, with opinion.

          OPINION

          GORDON PRESIDING JUSTICE

         ¶ 1 After a jury trial, defendant Sergio Hernandez was found guilty of the first-degree murder of Rocio Munoz and of personally discharging the firearm that caused her death. 720 ILCS 5/9-1(a)(1) (West 2008) (first-degree murder with intent to kill); 730 ILCS 5/5-8-1 (a)(1)(d)(iii) (West 2006) (25-year sentencing enhancement for personally discharging a firearm causing death). Defendant was sentenced to 30 years for the murder and 25 years as a result of a firearm enhancement, for a total sentence of 55 years with the Illinois Department of Corrections (IDOC).

         ¶ 2 On a prior appeal, this court found that defendant's arrest was illegal, and we vacated defendant's conviction and remanded the case for an attenuation hearing. People v. Hernandez, 2013 IL App (1st) 103447-U, ¶¶ 42, 50 (unpublished order pursuant to Supreme Court Rule 23). Specifically, we remanded the matter to the trial court "with directions to conduct a hearing to determine whether defendant's statements at the police station were sufficiently attenuated from his illegal arrest to render it admissible." Hernandez, 2013 IL App (1st) 103447-U, ¶ 50. We also permitted the parties the opportunity on remand to develop a factual record bearing on defendant's claims of ineffective assistance of trial counsel. Hernandez, 2013 IL App (1st) 103447-U, ¶ 56.

         ¶ 3 After the trial court held the attenuation hearing, we instructed the trial court as follows: "Should the trial court find defendant's confession was sufficiently attenuated from his illegal arrest, we direct the court to reinstate defendant's conviction. In the alternative, if the trial court determines that no such attenuation exists to purge the confession from the taint of defendant's illegal arrest, we direct the trial court to suppress the confession and conduct further proceedings consistent with this opinion." Hernandez, 2013 IL App (1st) 103447-U, ¶ 50.

         ¶ 4 On remand, the trial court held an attenuation hearing and found that defendant's statement to the police at the police station was sufficiently attenuated from his earlier arrest to be admissible at trial; and, following our directions, the trial court reinstated defendant's conviction.

         ¶ 5 Defendant now appeals the trial court's decision, arguing: (1) that the trial court erred in finding attenuation; (2) that his counsel at the attenuation hearing had a conflict of interest, since the appellate court permitted defendant on remand to address his claim that his trial counsel was ineffective for failing to move to suppress his statement as involuntary, and the same trial counsel continued to represent defendant on remand (Hernandez, 2013 IL App (1st) 103447-U, ¶ 56 (permitting the parties " 'an opportunity to develop a factual record' ") (quoting People v. Bew, 228 Ill.2d 122, 135 (2008)); and (3) that this counsel was ineffective for failing to move to suppress defendant's statement as involuntary (Hernandez, 2013 IL App (1st) 103447-U, ¶ 56 ("depending on what is entered into the record on remand, ineffectiveness *** could be addressed on direct appeal").

         ¶ 6 For the following reasons, we reverse defendant's conviction, suppress the statement he made at the police station and remand for further proceedings consistent with this opinion.

         ¶ 7 BACKGROUND

         ¶ 8 In the evening of November 25, 2008, the victim, Rocio Munoz, was found shot in the head while in her vehicle, which was parked on West Irving Park Road in Hanover Park, Illinois. On December 22, 2008, defendant, her former boyfriend, was indicted for her murder.

         ¶ 9 I. Pretrial Motion to Quash Arrest

         ¶ 10 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence on the ground that he was illegally arrested at his home without probable cause or a warrant. After holding a suppression hearing, the trial court concluded that defendant was not arrested at his home. On appeal, this court reversed the decision of the trial court and found that an arrest had occurred. Hernandez, 2013 IL App (1st) 103447-U, ¶ 2. We described the testimony at the suppression hearing in detail in our prior decision, and we will not repeat it here. Hernandez, 2013 IL App (1st) 103447-U, ¶¶ 4-9. In sum, more than 20 police officers, some armed, arrived at defendant's home, handcuffed him and patted him down, and then removed his handcuffs and seated him next to an armed officer in the back of a police vehicle and transported him to another police vehicle, which then transported him to an interrogation room in a police station, where he was questioned from nine at night until almost three in the morning. This court concluded that no reasonable person in defendant's shoes would have thought that he or she was free to leave. Hernandez, 2013 IL App (1st) 103447-U, ¶¶ 42, 46.

         ¶ 11 II. Evidence at Trial

         ¶ 12 Except for a few statements, the testimony at trial was not described in our prior opinion, so we provide a description here.[1]

         ¶ 13 At trial, Jose Munoz[2] testified that his sister Rocio, the victim, had dated defendant for three or four years, until 6 months before she died. Rocio, who had immigrated to the United States in 2005 from Mexico, had known defendant in Mexico. At the time of her death, Rocio was living with her brother Jose and their two brothers, and they had all lived together for three years. For four years, Rocio had worked cutting hair, and during the last six or eight months before her death, she had worked at a salon on Irving Park Road, in Hanover Park.

         ¶ 14 Rafael Delatore Guzman testified that, in November 2008, he was dating Rocio. On November 25, 2008, he met her at 8 p.m. as she was leaving the hair salon where she worked. The salon was in a shopping center on Irving Park Road. The two of them walked to her vehicle, which was parked in the parking lot in front of the salon. While Rocio was removing some bags from the front passenger seat to the back of the vehicle so that Guzman could sit down, Guzman observed a man walking in front of the vehicle. The man was 6 feet tall, 184 pounds, [3] and dressed in a black hooded sweatshirt, with the hood over his head, such that Guzman could not observe his face. After Rocio told Guzman that he could enter the vehicle, Guzman was entering when he heard a shot. After the shot, Guzman testified: "I just saw Rocio move." Guzman then entered a nearby supermarket. However, as Guzman reached the store, he turned around and observed the same man walking on the sidewalk. After entering the store, Guzman asked one of the workers to call the police and an ambulance. When Guzman observed the first police vehicle arrive, he went outside and walked to Rocio's vehicle with a police officer. When Guzman reached her vehicle, he opened the passenger door and observed Rocio lying on the passenger seat, and he grabbed her and lifted her up, and he observed that her face was full of blood. Blood was on her face and the vehicle seat, and on all of her clothes.

         ¶ 15 Detective Hugo Villa, of the Hanover Park Police Department, testified that, on November 25, 2008, he was a police officer and he responded to a call at 8:11 p.m. directing him to a shopping center on Irving Park Road. After arriving there, Villa observed a woman slumped forward in the driver's seat of a silver Ford parked in the parking lot, and she was covered in blood. The driver's side door was closed, and the window was shattered, with a partial hole in the window. After Villa opened the door, he grabbed the woman by her left shoulder and pulled her back, so that she sat up in her seat.[4] Villa observed a gunshot wound behind the woman's left ear and did not observe any signs of life. As Villa called the dispatch officer, he noticed a spent shell casing outside the vehicle, within a foot or two of the driver's side door. However, Villa was not able to determine the caliber of the shell casing. While at the scene, he spoke with Rocio's then current boyfriend, whose name Villa could not recall.

         ¶ 16 Nicholas Rossberg, a paramedic with the Hanover Park Fire Department, testified that, on November 25, 2008, he received a dispatch at 8:12 p.m. And that, when he arrived on the scene, Rocio was not responsive and not breathing, and had no pulse. She was transported to St. Alexius Medical Center.

         ¶ 17 The parties then entered a stipulation that if Dr. Karla Dunston was called to testify, she would testify that on November 25, 2008, she was an emergency room physician at St. Alexius Medical Center in Hoffman Estates, that Rocio arrived at 8:36 p.m. with a gunshot wound to the back of her head behind her left ear and was pronounced dead at 8:44 p.m. The parties also stipulated that, if Dr. Kendall Crowns was called to testify, he would testify that he was a deputy medical examiner for Cook County and that the cause of Rocio's death was a gunshot wound to the head.

         ¶ 18 Edgardo Lopez, a Hanover Park police officer, testified that, on November 25, 2008, he was a member of the Major Case Assistance Team (MCAT), and they went to Aurora to locate defendant who was a suspect. After police had "put out word that [defendant] was being looked for, " defendant called the police. While in Aurora, Lopez, who was fluent in Spanish, spoke on the phone with defendant who provided directions; and the officers then went to an apartment building where defendant was waiting outside. Defendant did not run or resist. Other officers approached defendant and transported him to the Hanover Park police station.

         ¶ 19 David Scot Carlson testified that, on November 25, 2008, starting at 4 p.m., he was working as a bouncer at a bar in Hanover Park, located at Irving Park Road and Jensen Street, approximately 100 yards from the shopping center with the hair salon. Carlson had two prior convictions for theft. Shortly after 4 p.m., he stepped outside for a cigarette and observed a black or blue Ford F150 pick-up truck with "flared out" back wheels parked on Jensen Street. Part of Carlson's job is to patrol the bar's parking lot. Carlson observed the same truck at 8 p.m.[5] and also observed, "in the retention pond an officer with two gentlemen on the ground, possibly at gunpoint." Carlson was not asked to explain what a retention pond was or to describe it, but he did state that the pond was "on the other side of the truck." Carlson returned to the bar, and thus did not observe what happened to the two men. The next day, when Carlson returned to work, he noticed a picture of the truck behind the bar. Carlson then called the Hanover Park Police Department and Hanover police came to Carlson's home on December 2, 2008. Carlson then went with the police to the Hanover Park police station, where he observed the same truck parked in the police parking lot. The police did not point the truck out to him; he just noticed it.

         ¶ 20 Lisa Koenen, an evidence technician with the Village of Hoffman Estates, testified that, on November 25, 2008, she went to St. Alexius Medical Center to photograph the victim's body. In addition to observing a gunshot entrance wound on the side of the victim's head, Koenen also observed four pieces of glass fragments in the victim's hair. Koenen was also present during the subsequent autopsy at the Cook County Medical Examiner's Office and she took custody of the "fragmented projectiles"[6] removed by the medical examiner from the victim's head which had lodged behind the victim's right eye. On November 26, 2008, at 8:30 p.m., Koenen also photographed the exterior of the apartment building where defendant resided and where he had been located earlier that day. There was a truck parked by the side of the building that Koenen photographed. When she looked through the truck's windows, Koenen observed a black plastic gun holster underneath the front passenger seat.

         ¶ 21 The parties then stipulated that, if Ernie Dannenberger were called to testify, he would testify that he is the Director of the Vehicle Services Department for the Illinois Secretary of State and that a 1999 Ford F150 with a certain license plate number was registered to Jose M. Hernandez in Aurora, Illinois.

         ¶ 22 The parties further stipulated that if Jose Hernandez[7] were called to testify he would testify that he helped defendant, who is his nephew, purchase a dark blue Ford F150 truck and that, as a result, Jose is listed as the owner. Although Jose was listed as the owner, he never used or drove the truck which belonged to defendant. In the early morning hours of November 27, 2008, when Hanover Park police officers came to his home, Jose signed a consent form allowing them to search the truck.

         ¶ 23 Thomas Todd, a forensic technician with the Schaumburg police department, testified that, on November 28, 2008, he processed the blue Ford F150 truck and recovered (1) a black plastic gun holster and a pair of white women's panties from the center console hump on the front-seat floor, and (2) multiple small broken-glass fragments from the driver's side front-seat floor mat.[8] Based on the shape of the holster and the lack of an area for a cylinder, the holster appeared to be a holster for an automatic weapon.

         ¶ 24 Sergeant Kevin Conway testified that he worked for the Hanover Police Department and that, on November 29, 2008, he traveled to defendant's building and, near the rear garage door, he observed some burnt black clothing[9]with a partial zipper. The pile also included a scale. In December 2008, Conway transported David Carlson from Carlson's home to the police station, and then to the bar where Carlson worked. Conway then parked his unmarked police vehicle in the location where the truck had been parked on the night of the murder, and photographed the area. The location was less than a block from the shopping center.

         ¶ 25 The parties stipulated that, if Monica Ramirez were called to testify, she would testify that she is fluent in both English and Spanish, that she accurately translated the videotaped interview of defendant on November 27, 2008, from Spanish into English, and that her transcript was used to create English subtitles for a video of approximately the last hour of the interview.

         ¶ 26 In a sidebar, the parties agreed that, although there was an English translation and transcript of the entire six-hour interview, the jury was not going to receive that transcript. Instead, the jurors were going to watch a video of approximately the last hour of the interview with English subtitles. With respect to the written transcript, the trial court stated: "You can put it into evidence. It's just not going to the jury." The trial court later stated, and the parties agreed, that People's Exhibit #61, which was the entire transcript, was "not in evidence."

         ¶ 27 Alvaro Fernandez, a police officer with the Village of Hoffman Estates, testified that, on November 26, 2008, at 9 p.m., he met defendant in an interview room at the Hanover Park police station. Fernandez is from Cuba and fluent in Spanish. Defendant indicated that he spoke only a little English and was more comfortable with Spanish, so Fernandez spoke to him in Spanish, first advising defendant of his Miranda rights. The interview lasted from 9 p.m. until 2:45 a.m. At first, Detective Ralph Griewosz was also in the interview room but, since Griewosz did not speak Spanish, Griewosz left between 10:30 and 11 p.m. and was replaced by Detective Juan Miranda who spoke Spanish.

         ¶ 28 The jury then viewed a video of only the last 57 minutes of the interview with defendant. While the interview was in Spanish, the video contained simultaneous English subtitles. The video, which the jury viewed, also contained information which was not otherwise introduced into evidence at trial. Thus the jury viewed: (1) the police suggesting that Rocio's boyfriend had already identified defendant from a photo array;[10] (2) the police telling defendant that individuals named "Alejandro" and "Alfredo"[11] had separately informed them that defendant had left his home before 7 p.m. on the night of the murder wearing a black hooded sweatshirt and that the two men knew it was before 7 p.m. because their soap operas had not yet started; (3) the police telling defendant that they had discovered a receipt in defendant's room which proved that defendant was at a market at 6:14 p.m. on the night of the murder and then showing defendant the receipt; and (4) the police performing a gunshot residue test on defendant's hands and telling defendant that the result was positive for the presence of gunshot residue.

         ¶ 29 However, none of these alleged facts were substantiated at trial. First, although the jury viewed the police seeming to indicate that Rocio's boyfriend had positively identified defendant, Guzman testified at trial that he did not view the shooter's face. Second, although the jury viewed the police telling defendant that "Alejandro" and "Alfredo" had informed them that defendant had left his home before 7 p.m. wearing a black hooded sweatshirt, no one by either name testified at trial. Third, although the jury viewed the police informing defendant that they had discovered a receipt in his room showing that defendant was at a market at 6:14 p.m., no such receipt was introduced at trial. Fourth, although the jury viewed the police ostensibly performing a gunshot residue test on defendant's hands and informing defendant of the positive result, the jury was never informed that this was a bogus or fake test, as later described in the subsequent post-appeal attenuation hearing.

         ¶ 30 In the video that the jury watched, the officers asked defendant if they had his "permission" to "check" his hands for gunshot residue, and defendant asked "what are my rights?" One of the officers replied: "I'm asking you. If you don't want we won't do it[.]" After defendant explained that he had shot a "BB gun" a week ago, the officer indicated that would not affect the test.

         ¶ 31 In the video, the officer stressed that gunshot powder would stay on a person's hands for months and that washing and scrubbing would not remove it. When the officers then asked if defendant wanted the gunshot residue test, he replied: "Do it."

         ¶ 32 The officers then offered defendant the opportunity to take a lie detector test, and defendant replied "[d]o it" and stated repeatedly that he would pass it. However, no lie detector test was given.

         ¶ 33 The video depicts the officers asking defendant repeatedly what would happen if he did not pass the lie detector test, and defendant replying each time: "I'll pass it." Finally, in exasperation, the officer stated, "[t]hat's not the question, " and defendant replied: "If I don't pass it that means I'm guilty." After more questions by the officers, in which they kept asking defendant why defendant was lying to them, a third person entered the interrogation room carrying a kit and defendant said: "Let's shut up and do the test."

         ¶ 34 Immediately before the officers performed the bogus gunshot residue test, one of the officers asked the apparent technician if he was ready and he replied that he was. The technician explained in English how the test worked, while one of the officers translated his words into Spanish. The technician stated that, if defendant had fired a gun in the last 24 or 48 hours, "[t]his test will tell me whether or not you did it. This test will say if you did it or not." The technician explained that he was going to apply a chemical to defendant's hands and that the chemical would turn pink if defendant had shot a gun.

         ¶ 35 However, before performing the test on defendant, the technician stated that he was first going to perform the test on one of the officers. The technician asked defendant "sound fair?" and defendant said yes. Defendant then watched as the technician, who was wearing rubber gloves, rubbed a piece of cloth or paper on the officer's right hand, and then dipped it into a solution, waited a moment and then announced "no pink."

         ¶ 36 The technician then rubbed a piece of paper or cloth against each of defendant's hands, then dipped it into a solution, waited a moment and then showed it to defendant, asking "[w]hat color is that?" Defendant answered "[p]ink."

         ¶ 37 The technician asked defendant "what do you think pink means, " and defendant replied "I don't know." One of the officers then asked the technician if the test would turn pink from a BB gun, and the technician answered no, that it would turn pink only from gunpowder. The technician then packed up his kit and exited the room.

         ¶ 38 The officer asked defendant: "Were you trying to scare her? Was it an accident?" After defendant replied that he had "nothing to say, " the officer asked if defendant wanted the officer to think he was "a monster" and that defendant had "killed her like a dog." That is when defendant said, echoing what the officer had said before, "[i]t was an accident."

         ¶ 39 When asked how it happened, defendant stated that he did not know about guns, that he wanted to speak with Rocio, that he was nervous, that he turned so that she would not look at him and that he then "kind of pulled the trigger." When asked where the gun was, defendant stated that he threw it in a river in Aurora and that it was "all mashed up." When asked where he obtained the gun, defendant replied "from some black guy." Defendant did not know either the type of gun or the type of bullet.

         ¶ 40 Both the subtitles and the typed transcript state repeatedly that defendant "brunt" his clothes. Although "brunt" is a word, this court presumes that "brunt" is a typographical error, and that the translator meant "burnt." In the video, defendant stated that he burnt his clothes on the cement outside his house and then threw the ashes in the river.

         ¶ 41 Defendant stated: "It was an accident that's all I know. I myself killed her but honestly I wasn't going to shoot her. I didn't want to shoot her. It was an accident. The gun was very vulnerable." The officers asked what he did when he saw Rocio walking toward her vehicle, and he replied: "I like tried talking to her. But for her to open the door I was like let's see if she opens it to speak with her or if she'll let me get in the car." Defendant stated that Rocio did not open the vehicle.[12]

         ¶ 42 When asked about the holster found in his vehicle, defendant stated that he did not know about the hostler, that he did not know where the hostler came from and that it was not his. About the gun, defendant stated: "I was trembling because I've never had a weapon."

         ¶ 43 After the jury watched the video, Detective Fernandez resumed his testimony. Fernandez testified that defendant informed him that defendant had broken the gun into pieces and thrown them into a river. On November 27, 2008, Fernandez and 20 other officers drove with defendant to Aurora to search for the gun. Defendant first indicated that he had thrown pieces of the gun off a pedestrian bridge and also from a park along the Fox River. When Fernandez accused defendant of lying, defendant said that he had thrown the whole gun out his vehicle's window into a grassy lot in Aurora. After a search of the lot, no gun was found.

         ¶ 44 When the assistant State's Attorney (ASA) asked "this story about it being an accident, who was the first one that used the word accident and suggested accident during this interview, " Detective Fernandez replied: "That was me, sir." When asked. "[i]t was not the defendant that first said that this was an accident, is that correct?" Fernandez replied: "No. It was part of my theme." Fernandez further testified:

"ASA: And it was you that first said 'maybe this was an accident, ' is that right?
FERNANDEZ: That's correct.
ASA: And basically, he said 'yeah, that's it. It was an accident, ' right?
FERNANDEZ: After I brought that theme out several times, yes."

         ¶ 45 Both parties rested. During closing arguments, the ASA argued, repeatedly and without objection that Rocio had been shot with a 9-millimeter semiautomatic handgun. However, the gun was not recovered, and none of the witnesses testified that the shell casing found on the scene or the fragments removed from the victim's head were fired from a 9-millimeter semiautomatic handgun.[13] The defense attorney argued that Rocio's death was an accident and asked the jury to find defendant guilty of involuntary manslaughter. During the jury instructions, the trial court told the jury: "The tape and not the subtitles is the evidence. If you perceive a conflict between the tape and the subtitles, the tape controls." After listening to the court's instructions, the jury found defendant guilty of both first degree murder and personally firing the firearm which caused Rocio's death.

         ¶ 46 III. Posttrial Motions, Sentencing and First Appeal

         ¶ 47 On August 23, 2010, the trial court denied defendant's posttrial motion for a new trial which argued, among other things, that the court erred in denying defendant's motion to quash his arrest and suppress evidence. At sentencing, the trial court listened to factors in mitigation and aggravation, including the fact that the 25-year old defendant had no prior contact with the law in the United States or in his native Mexico. The minimum possible sentence was 20 years for first-degree murder and an additional 25 years to life for personally discharging the firearm which caused the death, for a total minimum sentence of 45 years with IDOC. After considering factors in mitigation and aggravation, the trial court sentenced defendant to 30 years for the murder and 25 years for the firearm enhancement, for a total of 55 years with IDOC.

         ¶ 48 On November 10, 2010, the trial court denied defendant's motion to reconsider the sentence, and defendant's first appeal followed. As we already indicated, this court found that defendant's arrest was illegal, and we vacated defendant's conviction and remanded the case for an attenuation hearing. Hernandez, 2013 IL App (1st) 103447-U, ¶¶ 42, 50 (unpublished order pursuant to Supreme Court Rule 23). We directed the trial court "to conduct a hearing to determine whether defendant's statements at the police station were sufficiently attenuated from his illegal arrest to render it admissible." Hernandez, 2013 IL App (1st) 103447-U, ¶ 50. We also permitted the parties the opportunity on remand to develop a factual record bearing on defendant's claims of ineffective assistance of trial counsel. Hernandez, 2013 IL App (1st) 103447-U, ¶ 56.

         ¶ 49 III. Request for New Counsel On Remand

         ¶ 50 After the case had been remanded, but before the attenuation hearing occurred, the parties appeared before the trial court on April 3, 2014, and defendant asked for new counsel. On this appeal, defendant claims that he should have received new counsel for the attenuation hearing because his trial counsel had a conflict of interest.

         ¶ 51 On April 3, 2014, the following colloquy occurred, through a translator, between defendant and the trial court on the subject of new counsel:

"DEFENDANT: I want to ask this honorable Court, or the Judge, the appointment for a moritas (phonetic) force. THE COURT: For what?
ASSISTANT PUBLIC DEFENDER (APD): Judge, I believe what he's trying to say is murder task force. THE COURT: Okay.
DEFENDANT: Murder task force. And the reason for which I ask this is because my attorney on the last court date, in front of several people, told me that she didn't want to do my case, and if it were up to her, she would not have taken my case. I have been speaking with her, and she doesn't want to bring [to] the Judge's attention some important points or issues that I believe is for my defense. And I have the name of the witnesses that heard her say that.
THE COURT: Okay. [Defendant], please put that document away. All right. Here. You're entitled to the representation of the Public Defender's Office, okay? This is up today for a hearing on what we call attenuation, all right? I don't know if [the APD] explained it to you, but I'm sure she did.
What I'm going to do is I'm going to hold that hearing pursuant to the mandate, or pursuant to the direction of the appellate court on remand, okay? And there will be - the Court will hear evidence, and you will be present. You will be represented by [the APD].
You can't pick and choose which [APD] to get."

         ¶ 52 The trial court then asked the APD to respond to defendant's allegations:

"THE COURT: [APD], would you please - I'm concerned about what he said. Could you please respond to his allegation that you - did you tell him that you don't want to-
APD: No, Judge. What happened is [defendant] expressed displeasure with me. I told him that if he didn't want me representing him, I wouldn't want to have to represent him. However, I am assigned to his case. I would not want to represent someone that did not want me to represent him.
THE COURT: This matter is here for an attenuation hearing, and that's what it's here for, and that's what's going to happen.
So we'll see you on May 20th, 2014, because you have a right to be present for that hearing, okay? See you then.
APD: Judge, in addition, I told him that he had the option of hiring private counsel if he chose.
DEFENDANT: Your Honor-
THE COURT: I said that's the order. Thank you."

         ¶ 53 On May 20, 2014, the APD informed the trial court that she was not ready to proceed with the attenuation hearing because she "received a 27-page document written by [her] client indicating things he wanted [her] to address" and she had not yet had to time to read it." In response, the trial court rescheduled the hearing for June 30, 2014.

         ¶ 54 IV. The Attenuation Hearing

         ¶ 55 During the State's opening statement at the hearing, the ASA argued, among other things that, even though the gunshot residue test was false, it still served as an intervening circumstance between the illegal arrest and defendant's subsequent confession.

         ¶ 56 At the hearing, Detective William Kirby testified that he was employed by the Village of Arlington Heights and assigned to MCAT and that, during the afternoon of November 26, 2008, he traveled to the home of defendant's uncle, Jose Hernandez, in Aurora and asked Jose to have defendant call Kirby. Kirby told Jose, who spoke perfect English, that Kirby wanted to talk to defendant about defendant's ex-girlfriend. At 7:15 p.m. that day, defendant called.

         ¶ 57 Kirby testified that defendant spoke some English but not well. During the call, Kirby told defendant that Kirby wanted to speak with him about his ex-girlfriend and defendant said that he would talk to Kirby. Defendant asked Kirby to "come pick him up" and Kirby agreed. Kirby did not speak Spanish and he had to ask Ed Lopez, a Spanish-speaking officer, to call defendant back because Kirby did not understand defendant sufficiently to understand the street address which defendant provided.

         ¶ 58 Kirby testified that he contacted his commander, and that his commander contacted the Aurora Police Department. At 8:30 p.m. Kirby, Lopez and other officers arrived at defendant's location in Aurora. The officers at the location included David Warnes, Kirby's commander; Ed Lopez from the Hanover Police Department; and "a bunch of uniform[ed] officers [from] Aurora" whom Kirby did not know. There were approximately 20 officers present. When Kirby first arrived, defendant, as well as five or six other Hispanic males, were already in handcuffs. Kirby did not observe any guns drawn. However, other officers had already been there approximately 20 minutes and Kirby did not know whether guns had been drawn prior to Kirby's arrival. When Kirby first observed defendant, defendant was handcuffed with his hands behind his back[14]and walking toward Kirby's vehicle in the company of two or three officers, with one officer walking next to defendant and one or two officers walking behind.

         ¶ 59 Kirby testified that, after defendant was walked to Kirby's unmarked vehicle, Kirby asked a uniformed Aurora officer who accompanied defendant to remove defendant's handcuffs which he did. Kirby asked defendant: "Are you coming with me to the police station?" Defendant replied yes, and entered the backseat. Kirby's partner, Gary Mitchell sat next to defendant. Both Kirby and Mitchell wore guns, but Kirby did not believe that his gun was visible. Kirby explained that there was little conversation as he drove because defendant's "English is not good and my Spanish is not good." However, Kirby testified that he "explained to [defendant] that [Kirby] was driving him to the Hanover Park Police Station." Kirby testified that, after the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.