People v. Dizon
Annotate this Case
FIRST DIVISION
June 29, 1998
No. 1-96-3767
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
FERDINAND DIZON,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Edward M. Fiala,
Jr.,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
The victim in this case, Daniel Yum, was shot and killed on
April 8, 1994, at approximately 5:15 p.m. On April 27, 1994,
defendant, Ferdinand Dizon, was charged by indictment with first
degree murder for the shooting death of the victim. Defendant
filed pretrial motions to quash arrest and suppress evidence and
to suppress the lineup identifications; the motions were denied.
On June 3, 1996, after a jury trial, defendant was found guilty.
Defendant's motion for a new trial was denied on August 12, 1996.
On August 28, 1996, following a hearing in aggravation and
mitigation, the trial court sentenced defendant to 40 years of
imprisonment. Defendant's motion to reduce sentence was
thereafter denied. Defendant now appeals his conviction and
sentence.
On April 8, 1994, between 4:30 p.m. and 5 p.m., Sanday Som
received a phone call from a friend, Glen Valdez. After speaking
with Valdez, Som went to a mini-mall located at Lawrence and
Kimball in Chicago to help the victim, who had locked his keys in
his car. When Som arrived at the mini-mall he saw Valdez, Danny
Kang and the victim. Valdez got a coat hanger from a nearby
store for Som and then left. While attempting to retrieve the
keys with a coat hanger, Som noticed that five or six young men
were approaching from the west side of Kimball, which was the
street where the victim's car was parked. These five or six
young men were making gang signs and yelling gang slogans
including "Akhro," "RSG," "CB," and "Dragon Killer." Som, a
Cambodian, was not a member of a gang but he had heard gang
terminology around his school. Som believed that "Akhro"
referred to a Filipino gang because he had heard it yelled out by
Filipinos in the past; "RSG" referred to the Red Scorpion gang, a
Filipino gang; and "CB" referred to Crime Busters, a Filipino
gang. When one yells "Dragon Killer" it means he is showing
disrespect for the mainly Vietnamese gang known as the Dragons.
Som knew the slogans to mean that these young men were members of
the Red Scorpion gang. Som did not know whether Kang or the
victim, both Koreans, were members of a gang.
A fight ensued during which Som fought off one boy and Kang
fought off another and then ran. Som and the victim started to
run away when defendant, wearing a black shirt, ran towards them.
Som could see defendant's face because he was only a few feet
away and it was daylight. Som and the victim continued running
into the mini-mall parking lot. Som looked back and saw the
defendant pull out a black gun from his waist and shoot the
victim. Defendant then ran southbound. Later that day, around
10:30 p.m., Som went to the police station, where he identified
defendant in a lineup.
At the time the shooting occurred, Officer Fred Allen was
making a premise check at the nearby CTA station at 3353 W.
Lawrence. He heard what could have been a gunshot outside and he
exited the station. He proceeded to the corner of Lawrence and
Kimball, where he saw two youths running very quickly across the
street headed southbound. When they passed Officer Allen, the
first youth dropped a black gun, which the second youth picked up
and stuck in his waist or pocket. Officer Allen, who had drawn
his gun, yelled at the youths to stop, but they refused. The
first youth was wearing a black blue or dark colored shirt. The
second youth, codefendant in this case, Francis Calvadores, was
wearing a red shirt.
Officer Allen called in a flash message of a man with a gun,
along with identifications of the clothing that the two men were
wearing, and his belief that they were Latino. A few minutes
later, he heard a radio call that a person had been shot at
Lawrence and Kimball and he went to that location. Sometime
after that, Calvadores was brought to him and he identified him
as the youth who had picked up the gun. He also identified the
gun, which had been found on Calvadores, as that which he had
seen picked up by Calvadores.
In between the time Officer Allen first observed the two
youths and the time he identified Calvadores as one of them,
Officers James Valenzano and Steven Schwieger, who were nearby in
an unmarked police car and who had heard the flash message
describing the fleeing youths, drove toward the general area.
They saw two youths fitting the description. When they told them
to stop, Calvadores did, but defendant ran. Officer Valenzano
pursued defendant but was unable to catch him. During the chase,
the defendant looked back several times and Valenzano was able to
observe his face. Immediately after the chase, Valenzano radioed
in a corrected description, noting that defendant was not Latino,
but was instead Oriental.
Meanwhile, Officer Schwieger had searched Calvadores and
found the gun. Calvadores was placed in a cage car. Schwieger
received a flash message from the cage car that Calvadores would
take them to where the shooter could be found. The officers had
also received a flash message that a GEO tracker, license plate
number RASEC 44, had been seen leaving the scene of the crime.
When the officers arrived at the third location to which
Calvadores had taken them, 3349 W. Sunnyside, Officer Valenzano
saw the GEO tracker.
The officers knocked on the door. At first nobody answered,
but officers who were stationed at the rear entrance saw a female
open the curtain. When one of the officers flashed his badge,
she went back inside and did not open the door. The officers
could hear movement in the apartment, but still nobody opened the
door. Finally, after 5 or 10 minutes, the door was opened by a
man with a shotgun. The officers entered the apartment. There
they saw defendant and several other Asian males, all of whom
were arrested.
Eyewitnesses to the crime, Donald Morgan and Steven Csiki,
gave testimony at trial which was corroborative of the above. In
addition, Morgan identified defendant as the shooter.
Defendant's first argument on appeal is that the trial court
committed prejudicial error in failing to suppress postarrest
evidence because the police had no probable cause to arrest him.
Regarding this issue, the parties disagree as to the proper
standard of review we must employ. A trial court's ruling on a
motion to suppress will not be reversed on appeal unless it is
manifestly erroneous. People v. Kidd, 175 Ill. 2d 1, 22, 675 N.E.2d 910, 921 (1996). This "manifestly erroneous" test is
proper because suppression motions usually raise mixed questions
of law and fact. People v. Frazier, 248 Ill. App. 3d 6, 12, 617 N.E.2d 826 (1993). It is only when neither the facts nor the
credibility of witnesses is questioned that de novo review is
appropriate. People v. Sweborg, 293 Ill. App. 3d 298, 302, 688 N.E.2d 144, 146 (1997). In the instant case, the defendant
clearly challenges the credibility of the State's witnesses.
Thus, de novo review is inappropriate here. Nevertheless, based
on the facts of this case, our determination regarding probable
cause would be the same even if we were to apply a de novo
standard of review.
"Probable cause to arrest exists where the totality of the
circumstances known to police officers at the time of arrest are
sufficient to warrant a reasonably prudent person to believe that
the suspect has committed a crime." People v. Patterson, 282
Ill. App. 3d 219, 227, 667 N.E.2d 1360, 1366 (1996), citing
People v. Hendricks, 253 Ill. App. 3d 79, 88, 625 N.E.2d 304
(1993). When one considers the totality of the circumstances
present here at the time of arrest, it is manifestly clear that
probable cause to arrest existed. Furthermore, "[w]hen police
officers are working in concert in investigating a crime or
possible crime, probable cause may be established from their
collective knowledge, even if it is not within the personal
knowledge of the arresting officer." People v. Hendricks, 253
Ill. App. 3d 79, 89, 625 N.E.2d 304, 310 (1993).
In denying defendant's motion to quash his arrest and
suppress evidence, the trial court summarized some of the facts
known to the police at the time of the arrest. As the record,
including the tape of the police radio transmissions, indicates,
there was a plethora of information known collectively by the
police at the time of the arrest. We will briefly summarize some
of those factors here to illustrate why it is undeniable that the
totality of the circumstances known to police officers at the
time of arrest were sufficient to warrant a reasonably prudent
person to believe that the defendant had committed a crime.
At the time of arrest, the following facts were known. A
shooting had occurred at a mall located at Lawrence and Kimball.
Several suspects had fled the scene, some in a red and black Geo
Tracker with a license plate number RASEC 44, some southbound on
foot. Officer Allen, who was working a foot beat nearby, at the
time of the crime, heard what could have been a gunshot. He
walked toward Lawrence and Kimball and saw two youths running
quickly, southbound from the scene of the crime. One youth was in
front of the other. He observed a gun drop and the second youth
picked it up and continued to run. He called in a flash message
and described the two youths as Latinos. He also described their
clothing, noting that they were approximately 18 to 19 years of
age, slightly built, one taller, one smaller. Furthermore, he
told the direction in which they were fleeing and that one had a
black shirt and one had a red shirt. Shortly after hearing
Officer Allen's message, Officers Schwieger and Valenzano, who
were on patrol, headed toward the general area. When they got to
the area of St. Louis and Leland, approximately one block west of
the location given by Officer Allen, they saw two subjects who
fit the clothing description in the flash message. The police
identified themselves and the red-shirted individual, codefendant
Francis Calvadores, stopped. The black-shirted individual ran
and was chased by Officer Valenzano, who observed the
individual's face as he looked back during the chase. Officer
Schwieger found a .380 semi-automatic pistol, consistent with the
weapon observed by Officer Allen, in Calvadores' left pants
pocket. Another officer later radioed in that a .380 casing was
found at the scene of the crime. When Officer Schwieger radioed
in, he included a statement that a short male Hispanic was being
chased by his partner. Officer Valenzano was unable to catch the
defendant, but had gotten a better look at him than Officer
Schwieger. Officer Valenzano immediately corrected the radio
description previously given over the air by both Allen and
Schwieger from Hispanic to Oriental. The youth was also
described as of short stature. Calvadores subsequently stated
that he was not the shooter, but knew the shooter and could take
the officers to where the shooter would be. He then took them to
two locations before taking them to the third location, where he
and defendant had been earlier, namely 3349 West Sunnyside,
Chicago, Illinois, particularly the second floor. While
proceeding to that address, the officers monitored a call from
Officer Jaks, who had received information from people at the
scene of the crime that several Asian males were seen running
from the scene and hopping into a red and black Geo Tracker with
a license plate number of RASEC 44. The officers observed the
vehicle when they arrived at the address to which the codefendant
had taken them.[fn1] They knocked on the door to the apartment.
After 5 to 10 minutes of waiting, during which time they heard
movement inside the apartment, the officers were let in. Several
young Asian males were inside the apartment, including defendant.
Defendant was arrested, as were the other young Asian men in the
apartment.
At the hearing on the motion to quash arrest, Office
Schwieger testified that when he and his partner, Officer
Valenzano, entered the apartment and saw the defendant, Valenzano
indicated to Schwieger that defendant was the individual that
Valenzano had been chasing in the alley. At trial, Officer
Valenzano testified that he recognized the defendant as the
person he saw fleeing from him, but that he did not say anything
to his partner; he instead did say "that's him, let's just take
them out of here." The discrepancy between whether Valenzano
spoke directly to his partner or generally out loud is not
critical - both officers testified that Valenzano identified
defendant at the time of the arrest. Although the standard for
determining whether probable cause existed for a warrantless
arrest requires more than mere suspicion on the part of the
police officers, it does not require the arresting officers to
have in their hands evidence sufficient to convict the defendant.
People v. Kidd, 175 Ill. 2d 1, 22, 675 N.E.2d 910, 921 (1996);
People v. Moody, 94 Ill. 2d 1, 445 N.E.2d 275 (1983). We
conclude that the trial court correctly determined that probable
cause to arrest existed and properly denied defendant's motion to
quash arrest and suppress evidence.
The next argument raised by defendant is that the evidence
was not sufficient to prove him guilty of murder beyond a
reasonable doubt. When considering such a challenge, a reviewing
court views the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a
reasonable doubt. People v. Young, 128 Ill. 2d 1, 538 N.E.2d 461
(1989).
Defendant alleges that compelling evidence of his
misidentification mandates conviction vacation. The jury here
heard the evidence regarding the offense, heard about the
witnesses' opportunities to view the defendant, including Officer
Valenzano's opportunity to view him during the foot chase. The
jury also heard testimony regarding the lineup and photo
identifications of the defendant just hours after the offense.
Determining the credibility of witnesses and the weight to be
given to their testimony is a function reserved for the trier of
fact (People v. Locascio, 106 Ill. 2d 529, 478 N.E.2d 1358
(1985)) and a reviewing court must not substitute its judgment
for that of the trier of fact, who heard the evidence presented
and had the opportunity to observe the demeanor of the witnesses.
People v. Novotny, 41 Ill. 2d 401, 412, 244 N.E.2d 182 (1968).
Moreover, it is well settled that even a single witness'
testimony is sufficient to sustain a conviction if the witness
viewed the accused under conditions permitting a positive
identification to be made. People v. Slim, 127 Ill. 2d 302, 307,
537 N.E.2d 317, 319 (1989).
In assessing identification testimony, Illinois courts have
generally used the steps set out by the United States Supreme
Court in the case of Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972) (see, e.g., People v. Simpson, 172 Ill. 2d 117, 141, 665 N.E.2d 1228, 1240 (1996)). In that case, the
court held that the circumstances to be considered in evaluating
an identification include: (1) the opportunity the victim had to
view the criminal at the time of the crime; (2) the witness'
degree of attention; (3) the accuracy of the witness' prior
description of the criminal; (4) the level of certainty
demonstrated by the victim at the identification confrontation;
and (5) the length of time between the crime and the
identification confrontation. Neil v. Biggers, 409 U.S. at 199-
200, 93 S. Ct. at 382, 34 L. Ed. 2d at 411.
Here, all five factors are met with respect to the
identification of the defendant as the person who committed the
crime by at least two of the State's witnesses, Sandy Som and
Donald Morgan. Sandy Som had an adequate opportunity to view the
defendant. It was daylight, defendant threw a punch at him, and
Som struck back. Defendant was only 30 away from Som when he saw
defendant shoot the victim. Donald Morgan, who was driving by
the scene of the crime at the time it occurred, also had an
adequate opportunity to view the defendant. He was 10 feet away
and observed the crime taking place for approximately two minutes
including the beating, the shooting and the defendant fleeing the
scene with another individual. Both witnesses had a high degree
of attention and were able to provide additional consistent
information regarding the crime, both had given accurate and
consistent descriptions of the defendant prior to trial, and
there was no uncertainty whatsoever in their descriptions.
Finally, the identifications of defendant by Som and Morgan were
made shortly after the crime, five hours and seven hours later,
respectively. Moreover, these identifications were made despite
the fact that defendant had changed clothes.
In addition to these witnesses, Officer Valenzano's
identification testimony was credible. He had an adequate
opportunity to view the defendant as he chased him because
defendant looked back several times while he was fleeing.
Officer Valenzano, immediately after the chase, was able to
correct the radio description of the defendant, previously given
as Latino, to Oriental.
Defendant offers as additional compelling evidence of his
misidentification the fact that Officer Valenzano did not include
any information as to facial or other physical characteristics in
his initial description of the individual that he chased. We
first note that our supreme court has stated that any "omissions
as to facial and other physical characteristics are not fatal,
but simply affect the weight to be given the identification
testimony." Slim, 127 Ill. 2d at 308, 537 N.E.2d at 319. And
while it is true that Officer Valenzano did not include any
description as to facial characteristics in his corrected
description of the defendant,"[i]t has consistently been held
that a witness is not expected or required to distinguish
individual and separate features of a suspect in making an
identification. Instead, a witness' positive identification can
be sufficient even though the witness gives only a general
description based on the total impression the accused's
appearance made." People v. Slim, 127 Ill. 2d at 308-09, 537 N.E.2d at 320. While defendant has not identified any unique or
distinguishable facial characteristics which should or even could
have been included in Officer Valenzano's description, such as
the presence of facial hair, tattoos, scars, other marks, braces,
missing teeth, etc., he boldly contends that Officer Valenzano
lied about seeing his face because no facial characteristics were
included in Officer Valenzano's description. Defendant has
failed to support this specific argument with any relevant case
law. Nevertheless, this court's independent research has
disclosed two cases that addressed this issue. These cases have
noted that this lack of detail in a description is particularly
insignificant, where, as here, the defendant has no abnormal or
distinguishing features. People v. Harrell, 104 Ill. App. 3d
138, 432 N.E.2d 1163 (1982); People v. Hemphill, 62 Ill. App. 3d
977, 379 N.E.2d 1284 (1978).
Defendant also contends that discrepancies existed in the
testimony that would raise a reasonable doubt as to his guilt.
Nonetheless, "when the determination of a defendant's guilt or
innocence depends upon the credibility of the witnesses and the
weight to be given their testimony, it is for the trier of fact
to resolve any conflicts in the evidence." People v. Rush, 294
Ill. App. 3d 334, 337, 689 N.E.2d 669, 672 (1998).
Prior to trial, defendant filed a motion in limine seeking
to preclude the State from introducing any evidence regarding
gang affiliation. The motion was denied by the court, which
determined that the evidence was relevant and that its probative
value outweighed any prejudice to the defendant. We agree.
"Evidence of gang membership, like other evidence, is
admissible if relevant to an issue in dispute, and its probative
value is not substantially outweighed by its prejudicial impact."
People v. Rodriguez, 291 Ill. App. 3d 55, 64-65, 684 N.E.2d 128,
134 (1997), citing People v. Johnson, 159 Ill. 2d 97, 118, 636 N.E.2d 485 (1994). In the instant case, there was no evidence
that defendant and the Korean victim had any prior relationship.
Immediately prior to the fight, however, defendant, a member of a
Filipino street gang, yelled "RSG" and "Dragon Killer" at the
victim. These were references to a Korean gang. Thus, the
evidence of gang affiliation was relevant to explain the motive
for the murder, which was gang rivalry. The additional evidence
regarding the cigarette burn marks on the hands of the defense
witnesses was also relevant in that it illustrated the common
bound between the witnesses and the defendant, who were all
members of the Filipino street gang "Red Scorpions," and was
relevant to show the defense witnesses' motive to testify as they
did.
With respect to defendant's argument that the State injected
a race issue into the case to inflame juror passions, we
disagree. True, the State commented on the Filipino nationality
and the fact that it is comprised of a combination of Oriental
and Latino influences. The argument, however, was proper. It
was invited in response to defense counsel's closing argument,
which emphasized the discrepancy between the initial
characterization of the offenders as Latino and the later
characterization as Oriental. As such, we find inapposite those
cases cited by defendant that dealt with racially biased
arguments, appeals to racial passion or "gratuitous" references
to race, where race had nothing to do with the issues. None of
these situations was present in the instant case.
Finally, defendant contends that his 40-year sentence was
excessive in light of his young age, his lack of criminal history
and his potential for rehabilitation. The imposition of a
sentence is a matter of the trial court's discretion. See People
v. Jones, 168 Ill. 2d 367, 659 N.E.2d 130 (1995). Absent a trial
court's abuse of discretion, this court will not vacate or reduce
a sentence if it falls within the statutory limit. Jones, 168 Ill. 2d at 373, 659 N.E.2d at 1308. This is so, because the
weight that the trial judge accords each factor in aggravation
and mitigation, and the resulting balance that is struck among
them, depends on the circumstances of the case. People v.
Grisset, 288 Ill. App. 3d 620, 635-36, 681 N.E.2d 1010, 1021
(1997).
Although Supreme Court Rule 615(b)(4) gives reviewing courts
the power to reduce a sentence, the trial court's decision is
nevertheless given deference because of the trial court's unique
ability to consider the many factors from which an appropriate
sentence can be derived which is superior to the cold record on
appeal. People v. Perruquet, 68 Ill. 2d 149, 153, 368 N.E.2d 882,
884 (1977). Here, the trial court explained that it had
considered the arguments of very able counsel in both mitigation
and aggravation, the testimony of the defendant, all 16 letters
in mitigation submitted on behalf of the defendant, the testimony
of the defendant's mother, the victim impact statements, the
testimony of the victim's sister, and the presentence
investigation report. The court indicated that it was well aware
of defendant's age and his lack of prior criminality. The court
considered defendant's potential for rehabilitation. The court
found defendant to be a particularly intelligent young man who
has enjoyed the benefit of a caring and loving family. The court
also considered the evidence in this case very well and was aware
of defendant's gang activity. The sentence imposed by the trial
court incorporated and was predicated upon all of those factors,
but particularly the defendant's potential for rehabilitation.
Furthermore, in imposing the sentence, the trial judge noted that
this case clearly demonstrated that it was another illustration
of senseless gang violence. Nevertheless, the court also stated
that the sentence would give the defendant the opportunity to
pursue his education while incarcerated so that those were not
wasted years. We conclude that defendant's 40-year sentence was
within the statutory sentencing range of 20 to 60 years for
first-degree murder and was not an abuse of discretion.
For the foregoing reasons, we affirm the defendant's
conviction of first degree murder and the 40-year sentence
imposed by the trial court.
Affirmed.
BUCKLEY, P.J. and O'BRIEN, J. concur.
[fn1]Defendant's characterization of the subsequent
warrantless arrest and search of the premises as an
"investigatory sweep" is totally devoid of merit rendering
irrelevant his citation to cases involving such sweeps.
June 29, 1998
No. 1-96-3767
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
FERDINAND DIZON,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Edward M. Fiala,
Jr.,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
The victim in this case, Daniel Yum, was shot and killed on
April 8, 1994, at approximately 5:15 p.m. On April 27, 1994,
defendant, Ferdinand Dizon, was charged by indictment with first
degree murder for the shooting death of the victim. Defendant
filed pretrial motions to quash arrest and suppress evidence and
to suppress the lineup identifications; the motions were denied.
On June 3, 1996, after a jury trial, defendant was found guilty.
Defendant's motion for a new trial was denied on August 12, 1996.
On August 28, 1996, following a hearing in aggravation and
mitigation, the trial court sentenced defendant to 40 years of
imprisonment. Defendant's motion to reduce sentence was
thereafter denied. Defendant now appeals his conviction and
sentence.
On April 8, 1994, between 4:30 p.m. and 5 p.m., Sanday Som
received a phone call from a friend, Glen Valdez. After speaking
with Valdez, Som went to a mini-mall located at Lawrence and
Kimball in Chicago to help the victim, who had locked his keys in
his car. When Som arrived at the mini-mall he saw Valdez, Danny
Kang and the victim. Valdez got a coat hanger from a nearby
store for Som and then left. While attempting to retrieve the
keys with a coat hanger, Som noticed that five or six young men
were approaching from the west side of Kimball, which was the
street where the victim's car was parked. These five or six
young men were making gang signs and yelling gang slogans
including "Akhro," "RSG," "CB," and "Dragon Killer." Som, a
Cambodian, was not a member of a gang but he had heard gang
terminology around his school. Som believed that "Akhro"
referred to a Filipino gang because he had heard it yelled out by
Filipinos in the past; "RSG" referred to the Red Scorpion gang, a
Filipino gang; and "CB" referred to Crime Busters, a Filipino
gang. When one yells "Dragon Killer" it means he is showing
disrespect for the mainly Vietnamese gang known as the Dragons.
Som knew the slogans to mean that these young men were members of
the Red Scorpion gang. Som did not know whether Kang or the
victim, both Koreans, were members of a gang.
A fight ensued during which Som fought off one boy and Kang
fought off another and then ran. Som and the victim started to
run away when defendant, wearing a black shirt, ran towards them.
Som could see defendant's face because he was only a few feet
away and it was daylight. Som and the victim continued running
into the mini-mall parking lot. Som looked back and saw the
defendant pull out a black gun from his waist and shoot the
victim. Defendant then ran southbound. Later that day, around
10:30 p.m., Som went to the police station, where he identified
defendant in a lineup.
At the time the shooting occurred, Officer Fred Allen was
making a premise check at the nearby CTA station at 3353 W.
Lawrence. He heard what could have been a gunshot outside and he
exited the station. He proceeded to the corner of Lawrence and
Kimball, where he saw two youths running very quickly across the
street headed southbound. When they passed Officer Allen, the
first youth dropped a black gun, which the second youth picked up
and stuck in his waist or pocket. Officer Allen, who had drawn
his gun, yelled at the youths to stop, but they refused. The
first youth was wearing a black blue or dark colored shirt. The
second youth, codefendant in this case, Francis Calvadores, was
wearing a red shirt.
Officer Allen called in a flash message of a man with a gun,
along with identifications of the clothing that the two men were
wearing, and his belief that they were Latino. A few minutes
later, he heard a radio call that a person had been shot at
Lawrence and Kimball and he went to that location. Sometime
after that, Calvadores was brought to him and he identified him
as the youth who had picked up the gun. He also identified the
gun, which had been found on Calvadores, as that which he had
seen picked up by Calvadores.
In between the time Officer Allen first observed the two
youths and the time he identified Calvadores as one of them,
Officers James Valenzano and Steven Schwieger, who were nearby in
an unmarked police car and who had heard the flash message
describing the fleeing youths, drove toward the general area.
They saw two youths fitting the description. When they told them
to stop, Calvadores did, but defendant ran. Officer Valenzano
pursued defendant but was unable to catch him. During the chase,
the defendant looked back several times and Valenzano was able to
observe his face. Immediately after the chase, Valenzano radioed
in a corrected description, noting that defendant was not Latino,
but was instead Oriental.
Meanwhile, Officer Schwieger had searched Calvadores and
found the gun. Calvadores was placed in a cage car. Schwieger
received a flash message from the cage car that Calvadores would
take them to where the shooter could be found. The officers had
also received a flash message that a GEO tracker, license plate
number RASEC 44, had been seen leaving the scene of the crime.
When the officers arrived at the third location to which
Calvadores had taken them, 3349 W. Sunnyside, Officer Valenzano
saw the GEO tracker.
The officers knocked on the door. At first nobody answered,
but officers who were stationed at the rear entrance saw a female
open the curtain. When one of the officers flashed his badge,
she went back inside and did not open the door. The officers
could hear movement in the apartment, but still nobody opened the
door. Finally, after 5 or 10 minutes, the door was opened by a
man with a shotgun. The officers entered the apartment. There
they saw defendant and several other Asian males, all of whom
were arrested.
Eyewitnesses to the crime, Donald Morgan and Steven Csiki,
gave testimony at trial which was corroborative of the above. In
addition, Morgan identified defendant as the shooter.
Defendant's first argument on appeal is that the trial court
committed prejudicial error in failing to suppress postarrest
evidence because the police had no probable cause to arrest him.
Regarding this issue, the parties disagree as to the proper
standard of review we must employ. A trial court's ruling on a
motion to suppress will not be reversed on appeal unless it is
manifestly erroneous. People v. Kidd, 175 Ill. 2d 1, 22, 675 N.E.2d 910, 921 (1996). This "manifestly erroneous" test is
proper because suppression motions usually raise mixed questions
of law and fact. People v. Frazier, 248 Ill. App. 3d 6, 12, 617 N.E.2d 826 (1993). It is only when neither the facts nor the
credibility of witnesses is questioned that de novo review is
appropriate. People v. Sweborg, 293 Ill. App. 3d 298, 302, 688 N.E.2d 144, 146 (1997). In the instant case, the defendant
clearly challenges the credibility of the State's witnesses.
Thus, de novo review is inappropriate here. Nevertheless, based
on the facts of this case, our determination regarding probable
cause would be the same even if we were to apply a de novo
standard of review.
"Probable cause to arrest exists where the totality of the
circumstances known to police officers at the time of arrest are
sufficient to warrant a reasonably prudent person to believe that
the suspect has committed a crime." People v. Patterson, 282
Ill. App. 3d 219, 227, 667 N.E.2d 1360, 1366 (1996), citing
People v. Hendricks, 253 Ill. App. 3d 79, 88, 625 N.E.2d 304
(1993). When one considers the totality of the circumstances
present here at the time of arrest, it is manifestly clear that
probable cause to arrest existed. Furthermore, "[w]hen police
officers are working in concert in investigating a crime or
possible crime, probable cause may be established from their
collective knowledge, even if it is not within the personal
knowledge of the arresting officer." People v. Hendricks, 253
Ill. App. 3d 79, 89, 625 N.E.2d 304, 310 (1993).
In denying defendant's motion to quash his arrest and
suppress evidence, the trial court summarized some of the facts
known to the police at the time of the arrest. As the record,
including the tape of the police radio transmissions, indicates,
there was a plethora of information known collectively by the
police at the time of the arrest. We will briefly summarize some
of those factors here to illustrate why it is undeniable that the
totality of the circumstances known to police officers at the
time of arrest were sufficient to warrant a reasonably prudent
person to believe that the defendant had committed a crime.
At the time of arrest, the following facts were known. A
shooting had occurred at a mall located at Lawrence and Kimball.
Several suspects had fled the scene, some in a red and black Geo
Tracker with a license plate number RASEC 44, some southbound on
foot. Officer Allen, who was working a foot beat nearby, at the
time of the crime, heard what could have been a gunshot. He
walked toward Lawrence and Kimball and saw two youths running
quickly, southbound from the scene of the crime. One youth was in
front of the other. He observed a gun drop and the second youth
picked it up and continued to run. He called in a flash message
and described the two youths as Latinos. He also described their
clothing, noting that they were approximately 18 to 19 years of
age, slightly built, one taller, one smaller. Furthermore, he
told the direction in which they were fleeing and that one had a
black shirt and one had a red shirt. Shortly after hearing
Officer Allen's message, Officers Schwieger and Valenzano, who
were on patrol, headed toward the general area. When they got to
the area of St. Louis and Leland, approximately one block west of
the location given by Officer Allen, they saw two subjects who
fit the clothing description in the flash message. The police
identified themselves and the red-shirted individual, codefendant
Francis Calvadores, stopped. The black-shirted individual ran
and was chased by Officer Valenzano, who observed the
individual's face as he looked back during the chase. Officer
Schwieger found a .380 semi-automatic pistol, consistent with the
weapon observed by Officer Allen, in Calvadores' left pants
pocket. Another officer later radioed in that a .380 casing was
found at the scene of the crime. When Officer Schwieger radioed
in, he included a statement that a short male Hispanic was being
chased by his partner. Officer Valenzano was unable to catch the
defendant, but had gotten a better look at him than Officer
Schwieger. Officer Valenzano immediately corrected the radio
description previously given over the air by both Allen and
Schwieger from Hispanic to Oriental. The youth was also
described as of short stature. Calvadores subsequently stated
that he was not the shooter, but knew the shooter and could take
the officers to where the shooter would be. He then took them to
two locations before taking them to the third location, where he
and defendant had been earlier, namely 3349 West Sunnyside,
Chicago, Illinois, particularly the second floor. While
proceeding to that address, the officers monitored a call from
Officer Jaks, who had received information from people at the
scene of the crime that several Asian males were seen running
from the scene and hopping into a red and black Geo Tracker with
a license plate number of RASEC 44. The officers observed the
vehicle when they arrived at the address to which the codefendant
had taken them.[fn1] They knocked on the door to the apartment.
After 5 to 10 minutes of waiting, during which time they heard
movement inside the apartment, the officers were let in. Several
young Asian males were inside the apartment, including defendant.
Defendant was arrested, as were the other young Asian men in the
apartment.
At the hearing on the motion to quash arrest, Office
Schwieger testified that when he and his partner, Officer
Valenzano, entered the apartment and saw the defendant, Valenzano
indicated to Schwieger that defendant was the individual that
Valenzano had been chasing in the alley. At trial, Officer
Valenzano testified that he recognized the defendant as the
person he saw fleeing from him, but that he did not say anything
to his partner; he instead did say "that's him, let's just take
them out of here." The discrepancy between whether Valenzano
spoke directly to his partner or generally out loud is not
critical - both officers testified that Valenzano identified
defendant at the time of the arrest. Although the standard for
determining whether probable cause existed for a warrantless
arrest requires more than mere suspicion on the part of the
police officers, it does not require the arresting officers to
have in their hands evidence sufficient to convict the defendant.
People v. Kidd, 175 Ill. 2d 1, 22, 675 N.E.2d 910, 921 (1996);
People v. Moody, 94 Ill. 2d 1, 445 N.E.2d 275 (1983). We
conclude that the trial court correctly determined that probable
cause to arrest existed and properly denied defendant's motion to
quash arrest and suppress evidence.
The next argument raised by defendant is that the evidence
was not sufficient to prove him guilty of murder beyond a
reasonable doubt. When considering such a challenge, a reviewing
court views the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a
reasonable doubt. People v. Young, 128 Ill. 2d 1, 538 N.E.2d 461
(1989).
Defendant alleges that compelling evidence of his
misidentification mandates conviction vacation. The jury here
heard the evidence regarding the offense, heard about the
witnesses' opportunities to view the defendant, including Officer
Valenzano's opportunity to view him during the foot chase. The
jury also heard testimony regarding the lineup and photo
identifications of the defendant just hours after the offense.
Determining the credibility of witnesses and the weight to be
given to their testimony is a function reserved for the trier of
fact (People v. Locascio, 106 Ill. 2d 529, 478 N.E.2d 1358
(1985)) and a reviewing court must not substitute its judgment
for that of the trier of fact, who heard the evidence presented
and had the opportunity to observe the demeanor of the witnesses.
People v. Novotny, 41 Ill. 2d 401, 412, 244 N.E.2d 182 (1968).
Moreover, it is well settled that even a single witness'
testimony is sufficient to sustain a conviction if the witness
viewed the accused under conditions permitting a positive
identification to be made. People v. Slim, 127 Ill. 2d 302, 307,
537 N.E.2d 317, 319 (1989).
In assessing identification testimony, Illinois courts have
generally used the steps set out by the United States Supreme
Court in the case of Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972) (see, e.g., People v. Simpson, 172 Ill. 2d 117, 141, 665 N.E.2d 1228, 1240 (1996)). In that case, the
court held that the circumstances to be considered in evaluating
an identification include: (1) the opportunity the victim had to
view the criminal at the time of the crime; (2) the witness'
degree of attention; (3) the accuracy of the witness' prior
description of the criminal; (4) the level of certainty
demonstrated by the victim at the identification confrontation;
and (5) the length of time between the crime and the
identification confrontation. Neil v. Biggers, 409 U.S. at 199-
200, 93 S. Ct. at 382, 34 L. Ed. 2d at 411.
Here, all five factors are met with respect to the
identification of the defendant as the person who committed the
crime by at least two of the State's witnesses, Sandy Som and
Donald Morgan. Sandy Som had an adequate opportunity to view the
defendant. It was daylight, defendant threw a punch at him, and
Som struck back. Defendant was only 30 away from Som when he saw
defendant shoot the victim. Donald Morgan, who was driving by
the scene of the crime at the time it occurred, also had an
adequate opportunity to view the defendant. He was 10 feet away
and observed the crime taking place for approximately two minutes
including the beating, the shooting and the defendant fleeing the
scene with another individual. Both witnesses had a high degree
of attention and were able to provide additional consistent
information regarding the crime, both had given accurate and
consistent descriptions of the defendant prior to trial, and
there was no uncertainty whatsoever in their descriptions.
Finally, the identifications of defendant by Som and Morgan were
made shortly after the crime, five hours and seven hours later,
respectively. Moreover, these identifications were made despite
the fact that defendant had changed clothes.
In addition to these witnesses, Officer Valenzano's
identification testimony was credible. He had an adequate
opportunity to view the defendant as he chased him because
defendant looked back several times while he was fleeing.
Officer Valenzano, immediately after the chase, was able to
correct the radio description of the defendant, previously given
as Latino, to Oriental.
Defendant offers as additional compelling evidence of his
misidentification the fact that Officer Valenzano did not include
any information as to facial or other physical characteristics in
his initial description of the individual that he chased. We
first note that our supreme court has stated that any "omissions
as to facial and other physical characteristics are not fatal,
but simply affect the weight to be given the identification
testimony." Slim, 127 Ill. 2d at 308, 537 N.E.2d at 319. And
while it is true that Officer Valenzano did not include any
description as to facial characteristics in his corrected
description of the defendant,"[i]t has consistently been held
that a witness is not expected or required to distinguish
individual and separate features of a suspect in making an
identification. Instead, a witness' positive identification can
be sufficient even though the witness gives only a general
description based on the total impression the accused's
appearance made." People v. Slim, 127 Ill. 2d at 308-09, 537 N.E.2d at 320. While defendant has not identified any unique or
distinguishable facial characteristics which should or even could
have been included in Officer Valenzano's description, such as
the presence of facial hair, tattoos, scars, other marks, braces,
missing teeth, etc., he boldly contends that Officer Valenzano
lied about seeing his face because no facial characteristics were
included in Officer Valenzano's description. Defendant has
failed to support this specific argument with any relevant case
law. Nevertheless, this court's independent research has
disclosed two cases that addressed this issue. These cases have
noted that this lack of detail in a description is particularly
insignificant, where, as here, the defendant has no abnormal or
distinguishing features. People v. Harrell, 104 Ill. App. 3d
138, 432 N.E.2d 1163 (1982); People v. Hemphill, 62 Ill. App. 3d
977, 379 N.E.2d 1284 (1978).
Defendant also contends that discrepancies existed in the
testimony that would raise a reasonable doubt as to his guilt.
Nonetheless, "when the determination of a defendant's guilt or
innocence depends upon the credibility of the witnesses and the
weight to be given their testimony, it is for the trier of fact
to resolve any conflicts in the evidence." People v. Rush, 294
Ill. App. 3d 334, 337, 689 N.E.2d 669, 672 (1998).
Prior to trial, defendant filed a motion in limine seeking
to preclude the State from introducing any evidence regarding
gang affiliation. The motion was denied by the court, which
determined that the evidence was relevant and that its probative
value outweighed any prejudice to the defendant. We agree.
"Evidence of gang membership, like other evidence, is
admissible if relevant to an issue in dispute, and its probative
value is not substantially outweighed by its prejudicial impact."
People v. Rodriguez, 291 Ill. App. 3d 55, 64-65, 684 N.E.2d 128,
134 (1997), citing People v. Johnson, 159 Ill. 2d 97, 118, 636 N.E.2d 485 (1994). In the instant case, there was no evidence
that defendant and the Korean victim had any prior relationship.
Immediately prior to the fight, however, defendant, a member of a
Filipino street gang, yelled "RSG" and "Dragon Killer" at the
victim. These were references to a Korean gang. Thus, the
evidence of gang affiliation was relevant to explain the motive
for the murder, which was gang rivalry. The additional evidence
regarding the cigarette burn marks on the hands of the defense
witnesses was also relevant in that it illustrated the common
bound between the witnesses and the defendant, who were all
members of the Filipino street gang "Red Scorpions," and was
relevant to show the defense witnesses' motive to testify as they
did.
With respect to defendant's argument that the State injected
a race issue into the case to inflame juror passions, we
disagree. True, the State commented on the Filipino nationality
and the fact that it is comprised of a combination of Oriental
and Latino influences. The argument, however, was proper. It
was invited in response to defense counsel's closing argument,
which emphasized the discrepancy between the initial
characterization of the offenders as Latino and the later
characterization as Oriental. As such, we find inapposite those
cases cited by defendant that dealt with racially biased
arguments, appeals to racial passion or "gratuitous" references
to race, where race had nothing to do with the issues. None of
these situations was present in the instant case.
Finally, defendant contends that his 40-year sentence was
excessive in light of his young age, his lack of criminal history
and his potential for rehabilitation. The imposition of a
sentence is a matter of the trial court's discretion. See People
v. Jones, 168 Ill. 2d 367, 659 N.E.2d 130 (1995). Absent a trial
court's abuse of discretion, this court will not vacate or reduce
a sentence if it falls within the statutory limit. Jones, 168 Ill. 2d at 373, 659 N.E.2d at 1308. This is so, because the
weight that the trial judge accords each factor in aggravation
and mitigation, and the resulting balance that is struck among
them, depends on the circumstances of the case. People v.
Grisset, 288 Ill. App. 3d 620, 635-36, 681 N.E.2d 1010, 1021
(1997).
Although Supreme Court Rule 615(b)(4) gives reviewing courts
the power to reduce a sentence, the trial court's decision is
nevertheless given deference because of the trial court's unique
ability to consider the many factors from which an appropriate
sentence can be derived which is superior to the cold record on
appeal. People v. Perruquet, 68 Ill. 2d 149, 153, 368 N.E.2d 882,
884 (1977). Here, the trial court explained that it had
considered the arguments of very able counsel in both mitigation
and aggravation, the testimony of the defendant, all 16 letters
in mitigation submitted on behalf of the defendant, the testimony
of the defendant's mother, the victim impact statements, the
testimony of the victim's sister, and the presentence
investigation report. The court indicated that it was well aware
of defendant's age and his lack of prior criminality. The court
considered defendant's potential for rehabilitation. The court
found defendant to be a particularly intelligent young man who
has enjoyed the benefit of a caring and loving family. The court
also considered the evidence in this case very well and was aware
of defendant's gang activity. The sentence imposed by the trial
court incorporated and was predicated upon all of those factors,
but particularly the defendant's potential for rehabilitation.
Furthermore, in imposing the sentence, the trial judge noted that
this case clearly demonstrated that it was another illustration
of senseless gang violence. Nevertheless, the court also stated
that the sentence would give the defendant the opportunity to
pursue his education while incarcerated so that those were not
wasted years. We conclude that defendant's 40-year sentence was
within the statutory sentencing range of 20 to 60 years for
first-degree murder and was not an abuse of discretion.
For the foregoing reasons, we affirm the defendant's
conviction of first degree murder and the 40-year sentence
imposed by the trial court.
Affirmed.
BUCKLEY, P.J. and O'BRIEN, J. concur.
[fn1]Defendant's characterization of the subsequent
warrantless arrest and search of the premises as an
"investigatory sweep" is totally devoid of merit rendering
irrelevant his citation to cases involving such sweeps.
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