People v. Govea
Annotate this Case
THIRD DIVISION
September 16, 1998
(NUNC PRO TUNC AS OF AUGUST 26, 1998)
No. 1--96--3245
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
GASTON GOVEA, ) Honorable
) Fred G. Suria,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Following a jury trial, defendant Gaston Govea was found guilty of first
degree murder and sentenced to 34 years' imprisonment. On appeal, defendant
argues that: (1) the trial court committed reversible error in admitting as
substantive evidence the written statement and grand jury testimony of a witness
because both were obtained in violation of the witness' right to due process
under the fourteenth amendment and, since they were admitted into evidence,
defendant's right to due process was violated; (2) the statement and grand jury
testimony were not inconsistent with the witness' trial testimony and therefore
should not have been admitted; (3) the trial court erroneously denied defendant's
motion to suppress his oral and written statements because they were obtained in
violation of his fifth and fourteen amendment rights under the United States
Constitution against self-incrimination; (4) defendant was denied a fair trial
and the effective assistance of counsel because his counsel failed to move to
suppress the illegal arrest and subsequent statement of a witness, which led to
defendant's implication in the murder and his subsequent statement as fruit of
the poisonous tree; and (5) the trial court committed reversible error in
sentencing defendant to 34 years' imprisonment. For the reasons set forth below,
we affirm.
Defendant was charged with first degree murder in the shooting of Fillamon
Ibarra-Saucedo (Saucedo). Prior to defendant's trial, defendant filed a motion
to suppress his oral and written statements. At the hearing on his motion,
Detective Karen Hansen of the Chicago Police Department testified that she
investigated Saucedo's shooting which occurred at the LaAlondra tavern in Chicago
on October 3, 1994. On October 5, Hansen and Detective Dennis Walsh arrested
defendant at his place of employment. Hansen advised defendant of his Miranda
rights in the police car in the presence of Walsh.
Detective Hansen further testified that defendant was transported to Area
4 where he was put into an interview room at around 1 p.m. At 4:15 a.m.,
defendant participated in a lineup. At approximately 5 a.m., Hansen and Walsh
interviewed defendant for 10 minutes after informing defendant of his Miranda
rights. At 8 a.m., defendant was again read his Miranda rights, and Hansen and
Walsh had another brief interview with defendant in the presence of Assistant
State's Attorney Gregory Vaci (Vaci). Hansen and Vaci next spoke with defendant
at 11:25 a.m. in the presence of a court reporter. After defendant received
another Miranda warning and had indicated he understood his rights, defendant and
Vaci had a conversation about defendant's knowledge of Saucedo's shooting.
During this series of conversations, defendant implicated himself in the shooting
of Saucedo. Detective Hansen testified that defendant never stated that he was
threatened during police custody, nor did he ever request an attorney or a
cessation of the interview. Defendant was offered food and was allowed to use
the bathroom when requested. Hansen also stated that no one harmed defendant at
Area 4 or promised him that he could go home after giving a statement.
Defendant testified at the hearing that while he was at work, Detectives
Hansen and Walsh arrested him and placed him in a police car where they gave him
Miranda rights. During the ride, the officers "got smart" with defendant and
told him how his "action was bad." Defendant arrived at the police station and
he was placed in a room where he sat on the floor. Defendant was handcuffed at
the time. Defendant further stated that when the officers came in to talk to
him, he told them he did not want to talk and that he wanted to make a phone call
to his family and to contact his attorney. Hansen responded that it was "too
late," and the officers kept questioning him. Defendant also stated that Officer
Bribiesca hit him two or three times. Prior to defendant's court reported
statement, Hansen allegedly told defendant that she "already knew what happened"
and that defendant "might as well just go along with it" if he wanted to go home.
Hansen also told him that Saucedo was an "asshole" and "deserved" being shot.
Defendant also testified that he was only offered food after he made a statement.
Defendant further testifed that when Vaci came into the room prior to taking his
statement, he asked defendant if defendant wanted food, to which defendant
responded that he had already eaten two sandwiches. Defendant also stated that
the officers gave him Miranda rights before he gave his transcribed statement,
and he told the officer that he understood those rights and that he, in fact,
understood them. At the conclusion of the hearing, the trial court denied
defendant's motion to suppress, finding that defendant's statement itself denied
almost all the allegations he made at the hearing, and that, "by defendant's own
words," he admitted to having received Miranda warnings and agreed that he was
not mistreated by the police. The court further found that under all the
circumstances, the State had satisfactorily shown that defendant freely and
voluntarily made the statement, especially because defendant was 19 years old and
had prior experience with "the system."
At defendant's trial, Gabriela Garcia, defendant's sister, testified that
she had known Saucedo for a year and one-half, and that she lived with him for
approximately "half a year." On October 3, 1994, Garcia was working at the
"Alondra" tavern. When Saucedo arrived at the bar, Garcia left the bar, made a
phone call to defendant and then returned to the bar. Defendant subsequently
entered the bar with three other men. Defendant was holding "a stick" in his
hands, and was the first of the four men to walk into the bar. Garcia further
stated that Saucedo was mad when the four men entered the bar, and he threatened
her and defendant. Garcia saw Saucedo pick up a bottle from the bar and throw
it at defendant, but she did not see if the bottle actually hit defendant.
Garcia then "laid down" and covered her face with her hands, at which point she
heard gunshots. Garcia looked up and saw defendant and the other three men leave
the bar. Garcia also stated that she answered the questions the police asked her
when they arrived at the tavern, but she did not identify the four men because
the police "didn't ask [her]."
Garcia further testified that the police came to her house the following
day to tell her Saucedo was dead. Garcia was taken to the police station where
she identified defendant, but the police never informed her of the purpose of the
identification. When asked whether she was questioned by an assistant State's
Attorney, Garcia said that she was not. However, when questioned about the
written statement that she gave to Assistant State's Attorney Vaci, Garcia stated
that Vaci had taken her statement and that she read the Miranda warnings
contained in her statement out loud before signing the statement. Garcia
admitted that she told Vaci that she left the bar to call defendant when Saucedo
arrived, that defendant and three other men subsequently arrived at the bar, and
that defendant carried a "brown stick about two foot long." Upon further
questioning regarding her statement to Vaci, Garcia denied telling Vaci that:
defendant started beating Saucedo with the stick; Saucedo threw a bottle at
defendant after Saucedo was "getting beaten"; there was enough light in the bar
that she could see what was happening; and she saw defendant and the three other
men get into defendant's car and drive off. Garcia also stated that after Vaci
wrote her statement, she and Vaci read "some of it" together out loud, including
the Miranda warning section, and then she signed it.
The State then questioned Garcia about testimony she gave before a grand
jury on October 6, 1994. Garcia denied making the following statements to the
grand jury that: defendant and his friends "went after" Saucedo; defendant hit
Saucedo with a stick; Saucedo threw a bottle at defendant; the four men who went
into a car were her brother, cousin and their friends; her brother was driving
the car; and the four men "just went and jumped [Saucedo]." Garcia admitted that
she stated to the grand jury that the police did not harm her or threaten her in
any way for her testimony. Garcia also stated that the detective at the police
station said "a lot of bad things," including threats to take her children away
from her, but Garcia did not tell that to the grand jury because she was scared.
On cross-examination, Garcia testified that she was "arrested" on October
4, 1994, and that she was kept at the police station for three days, during which
her request to make a telephone call was denied on the first day, she was kept
in a locked room and was treated badly by the police. More specifically, Garcia
stated that two detectives called her a "bitch" and other "bad words," and that
the female detective pushed a desk at her and threatened to take her children
away from her. Garcia also stated that the police told her she was not under
arrest, but when she asked to go home, they told her that she could not.
Detective Karen Hansen's testimony was essentially the same as her
testimony at defendant's hearing on his motion to suppress his written and oral
statements, except when asked at trial if defendant asked to use the telephone
while in custody, Hansen testified that she did not recall "specific details
about who [defendant] wanted to call." Hansen also testified that she was not
sure whether defendant used the telephone prior to his transcribed statement, but
that "if he wanted to, we would have let him." When asked if it were true that
defendant requested to use the telephone shortly after he arrived at the station
and that Hansen told him that he did not need a lawyer, Hansen responded, "No."
Assistant State's Attorney Vaci testified that he and Detective Foster had
a conversation with Garcia on October 5, 1994, during which Garcia was given
Miranda warnings and agreed to make a written statement. Vaci testified that
after the statement was prepared, he had Garcia read the paragraph containing the
Miranda warnings, after which she signed the line beneath the paragraph. Vaci
further stated that he went through the entire statement out loud with Garcia,
after which she placed her signature on every page. The trial court then allowed
the State to publish Garcia's statement.
Vaci was also allowed to read into the record defendant's statement which
was taken on October 5, 1994. In his statement, defendant admitted he went to
the bar to "go beat up" Saucedo because Saucedo had hit Garcia; defendant was
carrying a pipe when he entered the bar and he knew one of the other men he was
with had a gun; when he walked into the bar, he hit Saucedo in the head with the
pipe, after which Saucedo threw a beer bottle at him. Before the jury was sent
into deliberations, defendant objected to the State's admission into evidence of
his written statement based on the argument that it was coerced. The trial court
overruled defendant's objection and allowed People's Exhibit 28, defendant's
statement, to go to the jury. The jury subsequently found defendant guilty of
first degree murder.
Defendant's presentence investigation report disclosed that he was married
and had two children, ages two and three. Defendant had no juvenile
adjudications. In 1992, however, defendant pled guilty to a burglary charge and
was sentenced to two years' probation, which was terminated satisfactorily. In
1994, defendant pled guilty to a battery charge and was sentenced and served two
days in the Department of Corrections. Defendant was raised in a single parent
home with his mother. Defendant had a "good" relationship with his mother, wife
and children. Defendant dropped out of high school in his junior year due to his
wife's pregnancy; however, at the time of defendant's arrest, he had been
attending Malcolm X College to obtain his GED. Prior to his arrest, defendant
was employed full-time as a laborer earning $9.57 per hour.
At defendant's sentencing hearing, the trial court indicated that it had
"considered all the aspects, aggravation and mitigation as set forth in the
Statute and [defendant's] pre-sentence investigation." Specifically, the court
stated that it had considered the facts that defendant held a job, was supporting
his family, was interested in furthering his education and was attempting to
"help [his] sister." The trial court noted, however, that the "gun would never
have been fired had [defendant] not gone there with the intent that [he] did--or
had not approached the victim as [he] did." The trial court then sentenced
defendant to 34 years' imprisonment. This appeal followed.
The first issue raised by defendant is whether the trial court committed
reversible error in admitting Garcia's written statement and grand jury testimony
as substantive evidence. Defendant contends that Garcia's written statement and
grand jury testimony were obtained by coercion in violation of her fourteenth
amendment rights of due process and, since they were admitted as substantive
evidence, defendant's right to due process was also violated. The State
contends that not only was Garcia's testimony of police misconduct
unsubstantiated by other evidence and undermined by her written statement and
grand jury testimony, but her alleged illegal arrest is also not relevant because
defendant lacked standing to contest the admission of evidence based on alleged
violations of another person's constitutional rights.
We agree with the State that defendant lacked standing to contest the
constitutionality of the admission of Garcia's statement and grand jury
testimony. In People v. James, 118 Ill. 2d 214, 514 N.E.2d 998 (1987), the
defendant argued that his confession was tainted fruit of the unlawful arrest of
his codefendant because the defendant confessed only after being confronted with
statements that were illegally obtained from his codefendant. Our supreme court
held that the defendant lacked standing to raise the issue, stating:
"It is a fundamental principle that a claim to suppress
the product of a fourth amendment violation can be
asserted 'only by those whose rights were violated by
the search or seizure itself.' Since the defendant's
own rights were not violated, he may not vicariously
seek suppression of evidence as a remedy for such a
violation of another's fourth amendment rights." James,
118 Ill. 2d at 226.
The James court noted that while the defendant may have been "aggrieved by the
admission of the product of someone's illegal arrest, *** his personal privacy
rights have not been violated." (Emphasis in original.) James, 118 Ill. 2d at
226.
Defendant argues that James is distinguishable because Garcia was "never
a co-defendant *** nor did the trial court find that she had been arrested."
Therefore, defendant maintains that "James should be limited to only its facts,
and not extended to apply to mere witnesses." We disagree. This court has
recently resolved the same issue in People v. Barton, 286 Ill. App. 3d 954, 677 N.E.2d 476 (1997). The Barton court, citing James, held that the Barton
defendant lacked standing to contest the voluntariness of statements made to the
police by two witnesses. Barton, 286 Ill. App. 3d at 959. See also People v.
Adams, 283 Ill. App. 3d 520, 669 N.E.2d 1331 (1996) (holding that the personal
nature of the fifth amendment privilege precludes a defendant from claiming error
based on a trial court's refusal to allow a witness to assert the privilege at
trial).
Defendant also attempts to distinguish Adams, which the State relies on
regarding this issue, arguing that "no 5th amendment issues" are presented in the
case at bar, and Adams involved "statements made by a co-defendant," whereas here
Garcia "was never charged as a co-defendant." We first observe that, as
indicated above, the Adams case in fact involved witness statements and not
statements made by a codefendant. Moreover, defendant fails to cite to any
authority that the lack of standing principle, where a defendant asserts the
constitutional rights of another person, would not be applicable to a fifth
amendment issue as it is to a fourth amendment issue and, therefore, defendant's
"theory" is waived. See People v. Wendt, 163 Ill. 2d 346, 356, 645 N.E.2d 179
(1994) (holding that when an appellant seeks reversal, theories which are not
pursued or advanced with citation to relevant authority are deemed waived).
Defendant next contends that the admission of Garcia's written statement
and grand jury testimony (statements) was error because the trial court did not,
in addition to finding that the statements met the requirements of section 115--
10.1 of the Code of Criminal Procedure (Code), also make a constitutional inquiry
as to whether there was a sufficient evidentiary basis from which the trier of
fact could find that the statements were made voluntarily. The State contends
that Illinois law does not require an additional constitutional inquiry regarding
the voluntariness or reliability of the statements.
Section 115--10.1 of the Code provides for the substantive admissibility
of prior inconsistent statements. 725 ILCS 5/115--10.1 (West 1992); People v.
Morales, 281 Ill. App. 3d 695, 700, 666 N.E.2d 839 (1996). Paragraphs (a) and
(b) of section 115--10.1 require that the prior statement be inconsistent with
the offered testimony and that the witness be subject to cross-examination.
After these requirements are met, the court must determine if the statements were
either made under oath at a trial, hearing or other proceeding, such as a grand
jury proceeding pursuant to paragraph (c)(1), or if they were statements that
were written, signed or acknowledged by the witness under oath which narrate,
describe or explain an event or condition within the personal knowledge of the
witness pursuant to paragraph (c)(2). Morales, 281 Ill. App. 3d at 700. It is
within the sound discretion of the trial court to determine whether or not the
testimony of the witness is admissible under section 115--10.1. Morales, 281
Ill. App. 3d at 701. The trial court's determination of the admissibility of
evidence will not be overturned absent a clear abuse of discretion. People v.
Franklin, 135 Ill. 2d 78, 552 N.E.2d 743 (1990).
Defendant relies on People v. Johnson, 255 Ill. App. 3d 547, 626 N.E.2d 1073 (1st Dist. 1993), in support of his argument. In Johnson, this court held
that before a witness' prior inconsistent statement and grand jury testimony is
admissible for constitutional purposes, the trial court must make a finding that
there is a sufficient evidentiary basis from which the jury could conclude that
the statements were knowingly and voluntarily made, even if the statements meet
the requirements of section 115--10.1. Johnson, 255 Ill. App. 3d at 558-59. Two
years after the Johnson decision, the Fourth District of this court held that an
additional requirement for admission of a prior inconsistent statement under
section 115--10.1, that the statement was made under circumstances indicating its
reliability and trustworthiness, is not required. People v. Carlos, 275 Ill.
App. 3d 80, 83-84, 655 N.E.2d 1182 (1995). The Carlos court reasoned that
because the legislature expressly enumerated circumstances that it concluded
would indicate the reliability of a prior statement in subsections (c)(1) and
(c)(2), "the fact a statement is admissible under section 115--10.1 of the Code
already demonstrates its reliability, so no additional evidence of the
statement's reliability need be shown." (Emphasis in original.) Carlos, 275
Ill. App. 3d at 84. Similarly, the Second District of this court, in People v.
Pursley, 284 Ill. App. 3d 597, 672 N.E.2d 1249 (1996), rejected the holding in
Johnson that an independent determination of voluntariness be made by the trial
court, and agreed with the reasoning in Carlos that such a determination "is
exactly the same as section 115-10.1 requires." Pursley, 284 Ill. App. 3d at
608-09.
Defendant argues that we should rule in accordance with Johnson and hold
that the trial court erred by not making a separate finding of reliability for
the statements in addition to the finding it made pursuant to the provisions of
section 115--10.1 in order to "identify the more broad issue of the
Constitution's requirement *** that a defendant's right to due process be
protected." We agree with the State, however, that because the Johnson holding
relies on the decisions in United States v. Leslie, 542 F.2d 285 (5th Cir. 1976),
and Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982), which established federal
guidelines for the admissibility of substantive evidence under constitutional due
process standards, Johnson is not in accordance with Illinois law. See also
Morales, 281 Ill. App. 3d at 703 (holding that both Leslie and Vogel predate the
Illinois legislature's enactment of section 115--10.1 which became effective in
July 1984, and finding that the statute adequately protects the defendant's
constitutional rights and the legislature "clearly intended the statute to be the
only inquiry necessary in determining whether to admit prior inconsistent
statements"). Because we are not bound by other decisions of the appellate court
(People v. Saunders, 288 Ill. App. 3d 523, 526, 680 N.E.2d 790 (1997)), we
decline to adopt the holding in Johnson that an additional determination of
reliability of prior inconsistent statements is required for due process
considerations and, therefore, hold that the trial court did not err by not
making a separate finding regarding the reliability of Garcia's prior statements.
Defendant also argues that Garcia's written statement and grand jury
testimony were improperly admitted as substantive evidence under section 115--
10.1 because they were not inconsistent with her trial testimony, but contained
mere omissions. The State argues that the record demonstrates "major
discrepancies and inconsistencies" between Garcia's trial testimony and her
written statement and grand jury testimony.
As stated above, it is well within the sound discretion of the trial court
to determine whether or not the testimony of a witness is admissible under
section 115--10.1. Additionally, it is well settled that "[w]hen certain
evidence is omitted from an earlier statement, but later found to be relevant and
testified to at trial, this does not constitute an inconsistency for the purposes
of [section 115--10.1]." People v. Lawrence, 268 Ill. App. 3d 327, 333, 644 N.E.2d 19 (1994). Equally well settled law is that although only the
inconsistent portions of a prior inconsistent statement are admissible into
evidence (Lawrence, 268 Ill. App. 3d at 333), a trial court need not make a
"quantitative or mathematical analysis" of whether the entire statement of the
witness is inconsistent for the entire statement to be admissible (People v.
Salazar, 126 Ill. 2d 424, 456-58, 535 N.E.2d 766 (1988)).
We agree with the State that Garcia's written statement and grand jury
testimony were properly admitted because they were inconsistent with her trial
testimony and did not contain mere omissions that were found at trial to be
relevant. For example, whereas Garcia testified at trial that she did not see
whether defendant used the stick that he was carrying, she claimed that she did
see defendant beat Saucedo with the stick in her prior testimony. At trial, she
testified that she did not know who owned the car that the four men drove away
in after Saucedo was shot, but she previously identified the car as defendant's.
Because these and other discrepancies between Garcia's trial testimony and her
written statement and grand jury testimony amounted to significant
inconsistencies and not mere omissions, we hold that the trial court did not
abuse its discretion in admitting Garcia's prior testimony in its entirety.
Salazar, 126 Ill. 2d at 456-58. See also Morales, 281 Ill. App. 3d at 702.
Defendant next contends that the trial court's dismissal of his motion to
suppress his oral and written statements as substantive evidence was erroneous,
thereby "violat[ing] defendant's fifth amendment and fourteenth amendment rights
under the United States Constitution." Defendant maintains that because
Detective Hansen changed her testimony at trial to state that "she didn't recall
specific details regarding who [defendant] wanted to call in response to defense
counsel's assertion that [defendant] had requested to use the telephone to
contact his mother and an attorney," the testimony he gave during the hearing on
his motion to suppress--that he requested to use the telephone to contact his
attorney and/or mother upon arrival at the police station--"should have been
reconsidered as defense counsel requested, at trial, and viewed with more favor
by the trial court given Karen Hansen's back-peddling."
The State contends that the trial court properly denied defendant's motion
to suppress his statements because the evidence showed defendant gave his
statements after being advised of his Miranda rights on several occasions and he
never indicated that he was subjected to improper police conduct. The State
argues that defendant's claim is "entirely based on a credibility determination
which is in the sole province of the trial judge."
A defendant's request for an attorney is per se an invocation of his fifth
amendment right, and requires that all questioning by authorities cease. Edwards
v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). In
considering a defendant's motion to suppress his confession, the State has the
initial burden of proving, by a preponderance of the evidence, that the defendant
made a knowing, intelligent, voluntary waiver of his constitutional rights prior
to making his confession. People v. Cabellero, 102 Ill. 2d 23, 464 N.E.2d 223
(1984). The trial court does not have to be convinced beyond a reasonable doubt
when ruling whether a confession was voluntarily given, and the trial court's
determination that the confession was voluntary will not be disturbed by a
reviewing court unless it is contrary to the manifest weight of the evidence.
People v. Prim, 53 Ill. 2d 62, 70, 289 N.E.2d 601 (1972). The trial court is in
the best position to judge the credibility of witnesses testifying at the hearing
on a motion to suppress, and the trial court is not required to accept the
defendant's version of the circumstances underlying his making a confession in
preference to other testimony. People v. Cleesen, 177 Ill. App. 3d 103, 113, 531 N.E.2d 1113 (1988).
We find that the record supports the trial court's denial of defendant's
motion to suppress his oral and written statements because it indicates that
defendant was advised of his Miranda rights at least four times prior to giving
his written statement, he indicated he understood those rights, he agreed that
he was treated well by the police, he was an adult and he had prior experience
with criminal matters. See In re T.S., 151 Ill. App. 3d 344, 350, 502 N.E.2d 761
(1986) (holding that factors that are considered in determining whether a
defendant's statement was voluntary include the age of the defendant and whether
he received his constitutional rights or was subjected to any physical
punishment), and People v. Hester, 39 Ill. 2d 489, 237 N.E.2d 466 (1968) (holding
that an additional factor to be considered is the defendant's experience in
criminal matters). Additionally, we find no merit in defendant's argument that
based on the alleged "change" in Detective Hansen's testimony at trial, the trial
court should have reconsidered his testimony, given at the hearing on his motion
to suppress his confession, that he requested and was denied access to an
attorney. The record indicates that Hansen did testify at trial that it was not
true that defendant requested to use the telephone and that she told defendant
that he did not need an attorney. Moreover, it is for the trier of fact, and not
this court, to determine the credibility of witnesses and to resolve conflicts
in their testimony. People v. Melok, 149 Ill. 2d 423, 599 N.E.2d 941 (1992).
Defendant next contends that he was denied a fair trial and effective
assistance of counsel based on defense counsel's failure to move to suppress
defendant's alleged illegal arrest and the statement of Garcia, which led to
defendant's implication in the murder and his subsequent statement as "fruit of
the poisonous tree," and counsel's failure to impeach Hansen at trial on her
prior inconsistent testimony at the hearing on the motion to suppress. The State
contends that because defendant lacked standing to challenge the admission of
evidence based on the alleged violation of another person's constitutional
rights, defense counsel's motion to suppress Garcia's statements would have been
"inappropriate" and "futile" and, therefore, would not have affected the outcome
of the trial.
The two-prong test for determining ineffective assistance of counsel as set
forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by Illinois courts, provides that first, a defendant
must prove that counsel's representation fell below an objective standard of
reasonableness and that those shortcomings were so serious as to deprive the
defendant of a fair trial, and second, the defendant must show that there is a
reasonable probability that, but for counsel's unprofessional error, the result
of the trial would have been different. People v. Albanese, 104 Ill. 2d 504,
525, 473 N.E.2d 1246 (1984).
Under the first prong of the Strickland test, there is a strong presumption
that the action of counsel at trial was the product of sound trial strategy and
not a result of incompetence. People v. Barrow, 133 Ill. 2d 226, 247, 549 N.E.2d 240 (1989). Trial counsel's actions must be reasonable under an objective
standard (Barrow, 133 Ill. 2d at 249), and it is the defendant's burden to prove
that trial counsel's actions were not reasonable (People v. Whittaker, 199 Ill.
App. 3d 621, 627, 557 N.E.2d 468 (1990)). Trial "[c]ounsel's performance must
not be evaluated in hindsight but rather must be viewed as of the time of his
actual performance." Whittaker, 199 Ill. App. 3d at 627. "The issue of
effectiveness is to be determined from the totality of counsel's conduct, not
isolated instances, and a reviewing court will not extend its inquiry into areas
involving counsel's judgment, discretion, trial tactics or strategy." People v.
Winchel, 159 Ill. App. 3d 892, 911-12, 512 N.E.2d 1298 (1987). Trial counsel's
decision to file a motion is a matter of trial strategy which must be given great
deference. People v. Bryant, 128 Ill. 2d 448, 458, 539 N.E.2d 1221 (1989).
Under the second prong of the Strickland test, "to prevail on a claim that
*** trial counsel was ineffective for failing to file a motion to quash and
suppress [statements], the defendant must show that the motion would have been
granted and that the trial outcome would have been different if the evidence had
been suppressed." People v. Morris, 229 Ill. App. 3d 144, 157, 593 N.E.2d 932
(1992).
In light of our finding above that defendant lacked standing to object to
the admission of Garcia's statement and grand jury testimony based upon the
alleged violation of Garcia's constitutional rights, we also find that both
prongs of the Strickland test have not been met. First, defendant cannot meet
his burden of proving that trial counsel's strategy was objectively unreasonable
and a product of incompetence because it is "fundamental" that a motion to
suppress the product of a fourth amendment violation can only be asserted by the
person whose rights were violated by the search and seizure. James, 118 Ill. 2d
at 226. Secondly, even if defendant had standing to raise such a motion,
defendant has failed to meet his burden under the second prong of the Strickland
test by showing that the motion would have been granted by the trial court and,
thus, would have had an effect on the outcome of his trial. Accordingly,
defendant has failed to show that his counsel was incompetent for failing to move
to suppress Garcia's statement and testimony.
Defendant lastly contends that the trial court improperly sentenced him to
34 years' imprisonment based on the facts that he was 19 years old at the time
of the incident, "was not reasonably a violent threat to society," he did not
pull the trigger, he supported a wife and two young children, he was continuing
to educate himself and he "only went to that bar to protect his sister."
Defendant argues that the trial court failed to consider defendant's potential
for rehabilitation and that the court "paid mere lip service to the required
considerations of the aggravating and mitigating evidence."
The State contends that the trial court properly exercised its discretion
in sentencing defendant because a 34-year sentence is "well within" the statutory
range for first degree murder, and defendant had two prior convictions, he
instigated the attack on Saucedo, and he knew one of the other men who
accompanied him to the LaAlondra bar had a loaded gun. The State argues that the
trial court "fully considered" all the evidence in aggravation and mitigation and
defendant's potential for rehabilitation.
The sentencing decisions of a trial court are entitled to great deference
and weight because "a trial judge is in a far better position than an appellate
court to fashion an appropriate sentence" based on firsthand consideration of the
defendant's credibility, demeanor, moral character and other relevant factors.
People v. Perruquet, 68 Ill. 2d 149, 154, 368 N.E.2d 882 (1977). The standard
of review is whether the trial court abused its discretion in imposing a
defendant's sentence. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351
(1991). A trial court is not required to give greater weight to the
rehabilitative potential of a defendant than to the seriousness of the offense.
People v. Boclair, 225 Ill. App. 3d 331, 335-36, 587 N.E.2d 1221 (1992).
Section 5--4--1(c) of the Unified Code of Corrections provides that, in
imposing sentence for a violent crime, the trial court "shall specify on the
record the particular evidence, information, factors in mitigation and
aggravation or other reasons that led to his sentencing determination." 730 ILCS
5/5--4--1(c) (West 1992). While the trial court should point to particular
evidence or information that led to his sentencing decision (People v. Juarez,
278 Ill. App. 3d 286, 295, 662 N.E.2d 567 (1996)), it is not required that the
court "detail precisely for the record the exact process by which she determined
the penalty[,] *** nor is she required to make an express finding that defendant
lacked rehabilitative potential." People v. Redmond, 265 Ill. App. 3d 292, 307,
637 N.E.2d 526 (1994).
In the case at bar, defendant was found guilty of first degree murder and
sentenced to 34 years' imprisonment, which was within the sentencing range of 20
to 60 years' imprisonment. 730 ILCS 5/5--8--1(a)(1)(a) (West 1997). The trial
court's statements at the sentencing hearing clearly indicate that the court
considered the factors in aggravation and mitigation, as well as defendant's
rehabilitative potential as indicated in his presentence report. While the trial
court duly noted that defendant was holding a job, supporting a family and
"trying to get ahead," it also had to consider defendant's involvement in the
murder of Saucedo, and that defendant was previously convicted two times for
battery. Under these circumstances, we cannot find that the trial court abused
its discretion in imposing defendant's sentence.
We briefly note that the cases cited by defendant in which reviewing courts
reduced the defendants' sentences are distinguishable from the case at bar. In
both People v. Wilkins, 36 Ill. App. 3d 761, 344 N.E.2d 724 (1976), and People
v. Horton, 43 Ill. App. 3d 150, 356 N.E.2d 1044 (1976), the defendants were only
17 years old and had no prior criminal record. In People v. Steffens, 131 Ill.
App. 3d 141, 475 N.E.2d 606 (1985), the defendant was a juvenile. Moreover, in
People v. Brown, 243 Ill. App. 3d 170, 612 N.E.2d 14 (1993), People v.
Margentina, 261 Ill. App. 3d 247, 634 N.E.2d 29 (1994), and People v. Gibbs, 49
Ill. App. 3d 644, 364 N.E.2d 491 (1977), the defendants' sentences for first
degree murder were 45-50 years' imprisonment, as opposed to defendant's 34 years'
sentence in this case.
For the reasons stated, we affirm the judgment of the circuit court.
Affirmed.
GORDON and CAHILL, JJ., concur.
September 16, 1998
(NUNC PRO TUNC AS OF AUGUST 26, 1998)
No. 1--96--3245
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
GASTON GOVEA, ) Honorable
) Fred G. Suria,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Following a jury trial, defendant Gaston Govea was found guilty of first
degree murder and sentenced to 34 years' imprisonment. On appeal, defendant
argues that: (1) the trial court committed reversible error in admitting as
substantive evidence the written statement and grand jury testimony of a witness
because both were obtained in violation of the witness' right to due process
under the fourteenth amendment and, since they were admitted into evidence,
defendant's right to due process was violated; (2) the statement and grand jury
testimony were not inconsistent with the witness' trial testimony and therefore
should not have been admitted; (3) the trial court erroneously denied defendant's
motion to suppress his oral and written statements because they were obtained in
violation of his fifth and fourteen amendment rights under the United States
Constitution against self-incrimination; (4) defendant was denied a fair trial
and the effective assistance of counsel because his counsel failed to move to
suppress the illegal arrest and subsequent statement of a witness, which led to
defendant's implication in the murder and his subsequent statement as fruit of
the poisonous tree; and (5) the trial court committed reversible error in
sentencing defendant to 34 years' imprisonment. For the reasons set forth below,
we affirm.
Defendant was charged with first degree murder in the shooting of Fillamon
Ibarra-Saucedo (Saucedo). Prior to defendant's trial, defendant filed a motion
to suppress his oral and written statements. At the hearing on his motion,
Detective Karen Hansen of the Chicago Police Department testified that she
investigated Saucedo's shooting which occurred at the LaAlondra tavern in Chicago
on October 3, 1994. On October 5, Hansen and Detective Dennis Walsh arrested
defendant at his place of employment. Hansen advised defendant of his Miranda
rights in the police car in the presence of Walsh.
Detective Hansen further testified that defendant was transported to Area
4 where he was put into an interview room at around 1 p.m. At 4:15 a.m.,
defendant participated in a lineup. At approximately 5 a.m., Hansen and Walsh
interviewed defendant for 10 minutes after informing defendant of his Miranda
rights. At 8 a.m., defendant was again read his Miranda rights, and Hansen and
Walsh had another brief interview with defendant in the presence of Assistant
State's Attorney Gregory Vaci (Vaci). Hansen and Vaci next spoke with defendant
at 11:25 a.m. in the presence of a court reporter. After defendant received
another Miranda warning and had indicated he understood his rights, defendant and
Vaci had a conversation about defendant's knowledge of Saucedo's shooting.
During this series of conversations, defendant implicated himself in the shooting
of Saucedo. Detective Hansen testified that defendant never stated that he was
threatened during police custody, nor did he ever request an attorney or a
cessation of the interview. Defendant was offered food and was allowed to use
the bathroom when requested. Hansen also stated that no one harmed defendant at
Area 4 or promised him that he could go home after giving a statement.
Defendant testified at the hearing that while he was at work, Detectives
Hansen and Walsh arrested him and placed him in a police car where they gave him
Miranda rights. During the ride, the officers "got smart" with defendant and
told him how his "action was bad." Defendant arrived at the police station and
he was placed in a room where he sat on the floor. Defendant was handcuffed at
the time. Defendant further stated that when the officers came in to talk to
him, he told them he did not want to talk and that he wanted to make a phone call
to his family and to contact his attorney. Hansen responded that it was "too
late," and the officers kept questioning him. Defendant also stated that Officer
Bribiesca hit him two or three times. Prior to defendant's court reported
statement, Hansen allegedly told defendant that she "already knew what happened"
and that defendant "might as well just go along with it" if he wanted to go home.
Hansen also told him that Saucedo was an "asshole" and "deserved" being shot.
Defendant also testified that he was only offered food after he made a statement.
Defendant further testifed that when Vaci came into the room prior to taking his
statement, he asked defendant if defendant wanted food, to which defendant
responded that he had already eaten two sandwiches. Defendant also stated that
the officers gave him Miranda rights before he gave his transcribed statement,
and he told the officer that he understood those rights and that he, in fact,
understood them. At the conclusion of the hearing, the trial court denied
defendant's motion to suppress, finding that defendant's statement itself denied
almost all the allegations he made at the hearing, and that, "by defendant's own
words," he admitted to having received Miranda warnings and agreed that he was
not mistreated by the police. The court further found that under all the
circumstances, the State had satisfactorily shown that defendant freely and
voluntarily made the statement, especially because defendant was 19 years old and
had prior experience with "the system."
At defendant's trial, Gabriela Garcia, defendant's sister, testified that
she had known Saucedo for a year and one-half, and that she lived with him for
approximately "half a year." On October 3, 1994, Garcia was working at the
"Alondra" tavern. When Saucedo arrived at the bar, Garcia left the bar, made a
phone call to defendant and then returned to the bar. Defendant subsequently
entered the bar with three other men. Defendant was holding "a stick" in his
hands, and was the first of the four men to walk into the bar. Garcia further
stated that Saucedo was mad when the four men entered the bar, and he threatened
her and defendant. Garcia saw Saucedo pick up a bottle from the bar and throw
it at defendant, but she did not see if the bottle actually hit defendant.
Garcia then "laid down" and covered her face with her hands, at which point she
heard gunshots. Garcia looked up and saw defendant and the other three men leave
the bar. Garcia also stated that she answered the questions the police asked her
when they arrived at the tavern, but she did not identify the four men because
the police "didn't ask [her]."
Garcia further testified that the police came to her house the following
day to tell her Saucedo was dead. Garcia was taken to the police station where
she identified defendant, but the police never informed her of the purpose of the
identification. When asked whether she was questioned by an assistant State's
Attorney, Garcia said that she was not. However, when questioned about the
written statement that she gave to Assistant State's Attorney Vaci, Garcia stated
that Vaci had taken her statement and that she read the Miranda warnings
contained in her statement out loud before signing the statement. Garcia
admitted that she told Vaci that she left the bar to call defendant when Saucedo
arrived, that defendant and three other men subsequently arrived at the bar, and
that defendant carried a "brown stick about two foot long." Upon further
questioning regarding her statement to Vaci, Garcia denied telling Vaci that:
defendant started beating Saucedo with the stick; Saucedo threw a bottle at
defendant after Saucedo was "getting beaten"; there was enough light in the bar
that she could see what was happening; and she saw defendant and the three other
men get into defendant's car and drive off. Garcia also stated that after Vaci
wrote her statement, she and Vaci read "some of it" together out loud, including
the Miranda warning section, and then she signed it.
The State then questioned Garcia about testimony she gave before a grand
jury on October 6, 1994. Garcia denied making the following statements to the
grand jury that: defendant and his friends "went after" Saucedo; defendant hit
Saucedo with a stick; Saucedo threw a bottle at defendant; the four men who went
into a car were her brother, cousin and their friends; her brother was driving
the car; and the four men "just went and jumped [Saucedo]." Garcia admitted that
she stated to the grand jury that the police did not harm her or threaten her in
any way for her testimony. Garcia also stated that the detective at the police
station said "a lot of bad things," including threats to take her children away
from her, but Garcia did not tell that to the grand jury because she was scared.
On cross-examination, Garcia testified that she was "arrested" on October
4, 1994, and that she was kept at the police station for three days, during which
her request to make a telephone call was denied on the first day, she was kept
in a locked room and was treated badly by the police. More specifically, Garcia
stated that two detectives called her a "bitch" and other "bad words," and that
the female detective pushed a desk at her and threatened to take her children
away from her. Garcia also stated that the police told her she was not under
arrest, but when she asked to go home, they told her that she could not.
Detective Karen Hansen's testimony was essentially the same as her
testimony at defendant's hearing on his motion to suppress his written and oral
statements, except when asked at trial if defendant asked to use the telephone
while in custody, Hansen testified that she did not recall "specific details
about who [defendant] wanted to call." Hansen also testified that she was not
sure whether defendant used the telephone prior to his transcribed statement, but
that "if he wanted to, we would have let him." When asked if it were true that
defendant requested to use the telephone shortly after he arrived at the station
and that Hansen told him that he did not need a lawyer, Hansen responded, "No."
Assistant State's Attorney Vaci testified that he and Detective Foster had
a conversation with Garcia on October 5, 1994, during which Garcia was given
Miranda warnings and agreed to make a written statement. Vaci testified that
after the statement was prepared, he had Garcia read the paragraph containing the
Miranda warnings, after which she signed the line beneath the paragraph. Vaci
further stated that he went through the entire statement out loud with Garcia,
after which she placed her signature on every page. The trial court then allowed
the State to publish Garcia's statement.
Vaci was also allowed to read into the record defendant's statement which
was taken on October 5, 1994. In his statement, defendant admitted he went to
the bar to "go beat up" Saucedo because Saucedo had hit Garcia; defendant was
carrying a pipe when he entered the bar and he knew one of the other men he was
with had a gun; when he walked into the bar, he hit Saucedo in the head with the
pipe, after which Saucedo threw a beer bottle at him. Before the jury was sent
into deliberations, defendant objected to the State's admission into evidence of
his written statement based on the argument that it was coerced. The trial court
overruled defendant's objection and allowed People's Exhibit 28, defendant's
statement, to go to the jury. The jury subsequently found defendant guilty of
first degree murder.
Defendant's presentence investigation report disclosed that he was married
and had two children, ages two and three. Defendant had no juvenile
adjudications. In 1992, however, defendant pled guilty to a burglary charge and
was sentenced to two years' probation, which was terminated satisfactorily. In
1994, defendant pled guilty to a battery charge and was sentenced and served two
days in the Department of Corrections. Defendant was raised in a single parent
home with his mother. Defendant had a "good" relationship with his mother, wife
and children. Defendant dropped out of high school in his junior year due to his
wife's pregnancy; however, at the time of defendant's arrest, he had been
attending Malcolm X College to obtain his GED. Prior to his arrest, defendant
was employed full-time as a laborer earning $9.57 per hour.
At defendant's sentencing hearing, the trial court indicated that it had
"considered all the aspects, aggravation and mitigation as set forth in the
Statute and [defendant's] pre-sentence investigation." Specifically, the court
stated that it had considered the facts that defendant held a job, was supporting
his family, was interested in furthering his education and was attempting to
"help [his] sister." The trial court noted, however, that the "gun would never
have been fired had [defendant] not gone there with the intent that [he] did--or
had not approached the victim as [he] did." The trial court then sentenced
defendant to 34 years' imprisonment. This appeal followed.
The first issue raised by defendant is whether the trial court committed
reversible error in admitting Garcia's written statement and grand jury testimony
as substantive evidence. Defendant contends that Garcia's written statement and
grand jury testimony were obtained by coercion in violation of her fourteenth
amendment rights of due process and, since they were admitted as substantive
evidence, defendant's right to due process was also violated. The State
contends that not only was Garcia's testimony of police misconduct
unsubstantiated by other evidence and undermined by her written statement and
grand jury testimony, but her alleged illegal arrest is also not relevant because
defendant lacked standing to contest the admission of evidence based on alleged
violations of another person's constitutional rights.
We agree with the State that defendant lacked standing to contest the
constitutionality of the admission of Garcia's statement and grand jury
testimony. In People v. James, 118 Ill. 2d 214, 514 N.E.2d 998 (1987), the
defendant argued that his confession was tainted fruit of the unlawful arrest of
his codefendant because the defendant confessed only after being confronted with
statements that were illegally obtained from his codefendant. Our supreme court
held that the defendant lacked standing to raise the issue, stating:
"It is a fundamental principle that a claim to suppress
the product of a fourth amendment violation can be
asserted 'only by those whose rights were violated by
the search or seizure itself.' Since the defendant's
own rights were not violated, he may not vicariously
seek suppression of evidence as a remedy for such a
violation of another's fourth amendment rights." James,
118 Ill. 2d at 226.
The James court noted that while the defendant may have been "aggrieved by the
admission of the product of someone's illegal arrest, *** his personal privacy
rights have not been violated." (Emphasis in original.) James, 118 Ill. 2d at
226.
Defendant argues that James is distinguishable because Garcia was "never
a co-defendant *** nor did the trial court find that she had been arrested."
Therefore, defendant maintains that "James should be limited to only its facts,
and not extended to apply to mere witnesses." We disagree. This court has
recently resolved the same issue in People v. Barton, 286 Ill. App. 3d 954, 677 N.E.2d 476 (1997). The Barton court, citing James, held that the Barton
defendant lacked standing to contest the voluntariness of statements made to the
police by two witnesses. Barton, 286 Ill. App. 3d at 959. See also People v.
Adams, 283 Ill. App. 3d 520, 669 N.E.2d 1331 (1996) (holding that the personal
nature of the fifth amendment privilege precludes a defendant from claiming error
based on a trial court's refusal to allow a witness to assert the privilege at
trial).
Defendant also attempts to distinguish Adams, which the State relies on
regarding this issue, arguing that "no 5th amendment issues" are presented in the
case at bar, and Adams involved "statements made by a co-defendant," whereas here
Garcia "was never charged as a co-defendant." We first observe that, as
indicated above, the Adams case in fact involved witness statements and not
statements made by a codefendant. Moreover, defendant fails to cite to any
authority that the lack of standing principle, where a defendant asserts the
constitutional rights of another person, would not be applicable to a fifth
amendment issue as it is to a fourth amendment issue and, therefore, defendant's
"theory" is waived. See People v. Wendt, 163 Ill. 2d 346, 356, 645 N.E.2d 179
(1994) (holding that when an appellant seeks reversal, theories which are not
pursued or advanced with citation to relevant authority are deemed waived).
Defendant next contends that the admission of Garcia's written statement
and grand jury testimony (statements) was error because the trial court did not,
in addition to finding that the statements met the requirements of section 115--
10.1 of the Code of Criminal Procedure (Code), also make a constitutional inquiry
as to whether there was a sufficient evidentiary basis from which the trier of
fact could find that the statements were made voluntarily. The State contends
that Illinois law does not require an additional constitutional inquiry regarding
the voluntariness or reliability of the statements.
Section 115--10.1 of the Code provides for the substantive admissibility
of prior inconsistent statements. 725 ILCS 5/115--10.1 (West 1992); People v.
Morales, 281 Ill. App. 3d 695, 700, 666 N.E.2d 839 (1996). Paragraphs (a) and
(b) of section 115--10.1 require that the prior statement be inconsistent with
the offered testimony and that the witness be subject to cross-examination.
After these requirements are met, the court must determine if the statements were
either made under oath at a trial, hearing or other proceeding, such as a grand
jury proceeding pursuant to paragraph (c)(1), or if they were statements that
were written, signed or acknowledged by the witness under oath which narrate,
describe or explain an event or condition within the personal knowledge of the
witness pursuant to paragraph (c)(2). Morales, 281 Ill. App. 3d at 700. It is
within the sound discretion of the trial court to determine whether or not the
testimony of the witness is admissible under section 115--10.1. Morales, 281
Ill. App. 3d at 701. The trial court's determination of the admissibility of
evidence will not be overturned absent a clear abuse of discretion. People v.
Franklin, 135 Ill. 2d 78, 552 N.E.2d 743 (1990).
Defendant relies on People v. Johnson, 255 Ill. App. 3d 547, 626 N.E.2d 1073 (1st Dist. 1993), in support of his argument. In Johnson, this court held
that before a witness' prior inconsistent statement and grand jury testimony is
admissible for constitutional purposes, the trial court must make a finding that
there is a sufficient evidentiary basis from which the jury could conclude that
the statements were knowingly and voluntarily made, even if the statements meet
the requirements of section 115--10.1. Johnson, 255 Ill. App. 3d at 558-59. Two
years after the Johnson decision, the Fourth District of this court held that an
additional requirement for admission of a prior inconsistent statement under
section 115--10.1, that the statement was made under circumstances indicating its
reliability and trustworthiness, is not required. People v. Carlos, 275 Ill.
App. 3d 80, 83-84, 655 N.E.2d 1182 (1995). The Carlos court reasoned that
because the legislature expressly enumerated circumstances that it concluded
would indicate the reliability of a prior statement in subsections (c)(1) and
(c)(2), "the fact a statement is admissible under section 115--10.1 of the Code
already demonstrates its reliability, so no additional evidence of the
statement's reliability need be shown." (Emphasis in original.) Carlos, 275
Ill. App. 3d at 84. Similarly, the Second District of this court, in People v.
Pursley, 284 Ill. App. 3d 597, 672 N.E.2d 1249 (1996), rejected the holding in
Johnson that an independent determination of voluntariness be made by the trial
court, and agreed with the reasoning in Carlos that such a determination "is
exactly the same as section 115-10.1 requires." Pursley, 284 Ill. App. 3d at
608-09.
Defendant argues that we should rule in accordance with Johnson and hold
that the trial court erred by not making a separate finding of reliability for
the statements in addition to the finding it made pursuant to the provisions of
section 115--10.1 in order to "identify the more broad issue of the
Constitution's requirement *** that a defendant's right to due process be
protected." We agree with the State, however, that because the Johnson holding
relies on the decisions in United States v. Leslie, 542 F.2d 285 (5th Cir. 1976),
and Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982), which established federal
guidelines for the admissibility of substantive evidence under constitutional due
process standards, Johnson is not in accordance with Illinois law. See also
Morales, 281 Ill. App. 3d at 703 (holding that both Leslie and Vogel predate the
Illinois legislature's enactment of section 115--10.1 which became effective in
July 1984, and finding that the statute adequately protects the defendant's
constitutional rights and the legislature "clearly intended the statute to be the
only inquiry necessary in determining whether to admit prior inconsistent
statements"). Because we are not bound by other decisions of the appellate court
(People v. Saunders, 288 Ill. App. 3d 523, 526, 680 N.E.2d 790 (1997)), we
decline to adopt the holding in Johnson that an additional determination of
reliability of prior inconsistent statements is required for due process
considerations and, therefore, hold that the trial court did not err by not
making a separate finding regarding the reliability of Garcia's prior statements.
Defendant also argues that Garcia's written statement and grand jury
testimony were improperly admitted as substantive evidence under section 115--
10.1 because they were not inconsistent with her trial testimony, but contained
mere omissions. The State argues that the record demonstrates "major
discrepancies and inconsistencies" between Garcia's trial testimony and her
written statement and grand jury testimony.
As stated above, it is well within the sound discretion of the trial court
to determine whether or not the testimony of a witness is admissible under
section 115--10.1. Additionally, it is well settled that "[w]hen certain
evidence is omitted from an earlier statement, but later found to be relevant and
testified to at trial, this does not constitute an inconsistency for the purposes
of [section 115--10.1]." People v. Lawrence, 268 Ill. App. 3d 327, 333, 644 N.E.2d 19 (1994). Equally well settled law is that although only the
inconsistent portions of a prior inconsistent statement are admissible into
evidence (Lawrence, 268 Ill. App. 3d at 333), a trial court need not make a
"quantitative or mathematical analysis" of whether the entire statement of the
witness is inconsistent for the entire statement to be admissible (People v.
Salazar, 126 Ill. 2d 424, 456-58, 535 N.E.2d 766 (1988)).
We agree with the State that Garcia's written statement and grand jury
testimony were properly admitted because they were inconsistent with her trial
testimony and did not contain mere omissions that were found at trial to be
relevant. For example, whereas Garcia testified at trial that she did not see
whether defendant used the stick that he was carrying, she claimed that she did
see defendant beat Saucedo with the stick in her prior testimony. At trial, she
testified that she did not know who owned the car that the four men drove away
in after Saucedo was shot, but she previously identified the car as defendant's.
Because these and other discrepancies between Garcia's trial testimony and her
written statement and grand jury testimony amounted to significant
inconsistencies and not mere omissions, we hold that the trial court did not
abuse its discretion in admitting Garcia's prior testimony in its entirety.
Salazar, 126 Ill. 2d at 456-58. See also Morales, 281 Ill. App. 3d at 702.
Defendant next contends that the trial court's dismissal of his motion to
suppress his oral and written statements as substantive evidence was erroneous,
thereby "violat[ing] defendant's fifth amendment and fourteenth amendment rights
under the United States Constitution." Defendant maintains that because
Detective Hansen changed her testimony at trial to state that "she didn't recall
specific details regarding who [defendant] wanted to call in response to defense
counsel's assertion that [defendant] had requested to use the telephone to
contact his mother and an attorney," the testimony he gave during the hearing on
his motion to suppress--that he requested to use the telephone to contact his
attorney and/or mother upon arrival at the police station--"should have been
reconsidered as defense counsel requested, at trial, and viewed with more favor
by the trial court given Karen Hansen's back-peddling."
The State contends that the trial court properly denied defendant's motion
to suppress his statements because the evidence showed defendant gave his
statements after being advised of his Miranda rights on several occasions and he
never indicated that he was subjected to improper police conduct. The State
argues that defendant's claim is "entirely based on a credibility determination
which is in the sole province of the trial judge."
A defendant's request for an attorney is per se an invocation of his fifth
amendment right, and requires that all questioning by authorities cease. Edwards
v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). In
considering a defendant's motion to suppress his confession, the State has the
initial burden of proving, by a preponderance of the evidence, that the defendant
made a knowing, intelligent, voluntary waiver of his constitutional rights prior
to making his confession. People v. Cabellero, 102 Ill. 2d 23, 464 N.E.2d 223
(1984). The trial court does not have to be convinced beyond a reasonable doubt
when ruling whether a confession was voluntarily given, and the trial court's
determination that the confession was voluntary will not be disturbed by a
reviewing court unless it is contrary to the manifest weight of the evidence.
People v. Prim, 53 Ill. 2d 62, 70, 289 N.E.2d 601 (1972). The trial court is in
the best position to judge the credibility of witnesses testifying at the hearing
on a motion to suppress, and the trial court is not required to accept the
defendant's version of the circumstances underlying his making a confession in
preference to other testimony. People v. Cleesen, 177 Ill. App. 3d 103, 113, 531 N.E.2d 1113 (1988).
We find that the record supports the trial court's denial of defendant's
motion to suppress his oral and written statements because it indicates that
defendant was advised of his Miranda rights at least four times prior to giving
his written statement, he indicated he understood those rights, he agreed that
he was treated well by the police, he was an adult and he had prior experience
with criminal matters. See In re T.S., 151 Ill. App. 3d 344, 350, 502 N.E.2d 761
(1986) (holding that factors that are considered in determining whether a
defendant's statement was voluntary include the age of the defendant and whether
he received his constitutional rights or was subjected to any physical
punishment), and People v. Hester, 39 Ill. 2d 489, 237 N.E.2d 466 (1968) (holding
that an additional factor to be considered is the defendant's experience in
criminal matters). Additionally, we find no merit in defendant's argument that
based on the alleged "change" in Detective Hansen's testimony at trial, the trial
court should have reconsidered his testimony, given at the hearing on his motion
to suppress his confession, that he requested and was denied access to an
attorney. The record indicates that Hansen did testify at trial that it was not
true that defendant requested to use the telephone and that she told defendant
that he did not need an attorney. Moreover, it is for the trier of fact, and not
this court, to determine the credibility of witnesses and to resolve conflicts
in their testimony. People v. Melok, 149 Ill. 2d 423, 599 N.E.2d 941 (1992).
Defendant next contends that he was denied a fair trial and effective
assistance of counsel based on defense counsel's failure to move to suppress
defendant's alleged illegal arrest and the statement of Garcia, which led to
defendant's implication in the murder and his subsequent statement as "fruit of
the poisonous tree," and counsel's failure to impeach Hansen at trial on her
prior inconsistent testimony at the hearing on the motion to suppress. The State
contends that because defendant lacked standing to challenge the admission of
evidence based on the alleged violation of another person's constitutional
rights, defense counsel's motion to suppress Garcia's statements would have been
"inappropriate" and "futile" and, therefore, would not have affected the outcome
of the trial.
The two-prong test for determining ineffective assistance of counsel as set
forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by Illinois courts, provides that first, a defendant
must prove that counsel's representation fell below an objective standard of
reasonableness and that those shortcomings were so serious as to deprive the
defendant of a fair trial, and second, the defendant must show that there is a
reasonable probability that, but for counsel's unprofessional error, the result
of the trial would have been different. People v. Albanese, 104 Ill. 2d 504,
525, 473 N.E.2d 1246 (1984).
Under the first prong of the Strickland test, there is a strong presumption
that the action of counsel at trial was the product of sound trial strategy and
not a result of incompetence. People v. Barrow, 133 Ill. 2d 226, 247, 549 N.E.2d 240 (1989). Trial counsel's actions must be reasonable under an objective
standard (Barrow, 133 Ill. 2d at 249), and it is the defendant's burden to prove
that trial counsel's actions were not reasonable (People v. Whittaker, 199 Ill.
App. 3d 621, 627, 557 N.E.2d 468 (1990)). Trial "[c]ounsel's performance must
not be evaluated in hindsight but rather must be viewed as of the time of his
actual performance." Whittaker, 199 Ill. App. 3d at 627. "The issue of
effectiveness is to be determined from the totality of counsel's conduct, not
isolated instances, and a reviewing court will not extend its inquiry into areas
involving counsel's judgment, discretion, trial tactics or strategy." People v.
Winchel, 159 Ill. App. 3d 892, 911-12, 512 N.E.2d 1298 (1987). Trial counsel's
decision to file a motion is a matter of trial strategy which must be given great
deference. People v. Bryant, 128 Ill. 2d 448, 458, 539 N.E.2d 1221 (1989).
Under the second prong of the Strickland test, "to prevail on a claim that
*** trial counsel was ineffective for failing to file a motion to quash and
suppress [statements], the defendant must show that the motion would have been
granted and that the trial outcome would have been different if the evidence had
been suppressed." People v. Morris, 229 Ill. App. 3d 144, 157, 593 N.E.2d 932
(1992).
In light of our finding above that defendant lacked standing to object to
the admission of Garcia's statement and grand jury testimony based upon the
alleged violation of Garcia's constitutional rights, we also find that both
prongs of the Strickland test have not been met. First, defendant cannot meet
his burden of proving that trial counsel's strategy was objectively unreasonable
and a product of incompetence because it is "fundamental" that a motion to
suppress the product of a fourth amendment violation can only be asserted by the
person whose rights were violated by the search and seizure. James, 118 Ill. 2d
at 226. Secondly, even if defendant had standing to raise such a motion,
defendant has failed to meet his burden under the second prong of the Strickland
test by showing that the motion would have been granted by the trial court and,
thus, would have had an effect on the outcome of his trial. Accordingly,
defendant has failed to show that his counsel was incompetent for failing to move
to suppress Garcia's statement and testimony.
Defendant lastly contends that the trial court improperly sentenced him to
34 years' imprisonment based on the facts that he was 19 years old at the time
of the incident, "was not reasonably a violent threat to society," he did not
pull the trigger, he supported a wife and two young children, he was continuing
to educate himself and he "only went to that bar to protect his sister."
Defendant argues that the trial court failed to consider defendant's potential
for rehabilitation and that the court "paid mere lip service to the required
considerations of the aggravating and mitigating evidence."
The State contends that the trial court properly exercised its discretion
in sentencing defendant because a 34-year sentence is "well within" the statutory
range for first degree murder, and defendant had two prior convictions, he
instigated the attack on Saucedo, and he knew one of the other men who
accompanied him to the LaAlondra bar had a loaded gun. The State argues that the
trial court "fully considered" all the evidence in aggravation and mitigation and
defendant's potential for rehabilitation.
The sentencing decisions of a trial court are entitled to great deference
and weight because "a trial judge is in a far better position than an appellate
court to fashion an appropriate sentence" based on firsthand consideration of the
defendant's credibility, demeanor, moral character and other relevant factors.
People v. Perruquet, 68 Ill. 2d 149, 154, 368 N.E.2d 882 (1977). The standard
of review is whether the trial court abused its discretion in imposing a
defendant's sentence. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351
(1991). A trial court is not required to give greater weight to the
rehabilitative potential of a defendant than to the seriousness of the offense.
People v. Boclair, 225 Ill. App. 3d 331, 335-36, 587 N.E.2d 1221 (1992).
Section 5--4--1(c) of the Unified Code of Corrections provides that, in
imposing sentence for a violent crime, the trial court "shall specify on the
record the particular evidence, information, factors in mitigation and
aggravation or other reasons that led to his sentencing determination." 730 ILCS
5/5--4--1(c) (West 1992). While the trial court should point to particular
evidence or information that led to his sentencing decision (People v. Juarez,
278 Ill. App. 3d 286, 295, 662 N.E.2d 567 (1996)), it is not required that the
court "detail precisely for the record the exact process by which she determined
the penalty[,] *** nor is she required to make an express finding that defendant
lacked rehabilitative potential." People v. Redmond, 265 Ill. App. 3d 292, 307,
637 N.E.2d 526 (1994).
In the case at bar, defendant was found guilty of first degree murder and
sentenced to 34 years' imprisonment, which was within the sentencing range of 20
to 60 years' imprisonment. 730 ILCS 5/5--8--1(a)(1)(a) (West 1997). The trial
court's statements at the sentencing hearing clearly indicate that the court
considered the factors in aggravation and mitigation, as well as defendant's
rehabilitative potential as indicated in his presentence report. While the trial
court duly noted that defendant was holding a job, supporting a family and
"trying to get ahead," it also had to consider defendant's involvement in the
murder of Saucedo, and that defendant was previously convicted two times for
battery. Under these circumstances, we cannot find that the trial court abused
its discretion in imposing defendant's sentence.
We briefly note that the cases cited by defendant in which reviewing courts
reduced the defendants' sentences are distinguishable from the case at bar. In
both People v. Wilkins, 36 Ill. App. 3d 761, 344 N.E.2d 724 (1976), and People
v. Horton, 43 Ill. App. 3d 150, 356 N.E.2d 1044 (1976), the defendants were only
17 years old and had no prior criminal record. In People v. Steffens, 131 Ill.
App. 3d 141, 475 N.E.2d 606 (1985), the defendant was a juvenile. Moreover, in
People v. Brown, 243 Ill. App. 3d 170, 612 N.E.2d 14 (1993), People v.
Margentina, 261 Ill. App. 3d 247, 634 N.E.2d 29 (1994), and People v. Gibbs, 49
Ill. App. 3d 644, 364 N.E.2d 491 (1977), the defendants' sentences for first
degree murder were 45-50 years' imprisonment, as opposed to defendant's 34 years'
sentence in this case.
For the reasons stated, we affirm the judgment of the circuit court.
Affirmed.
GORDON and CAHILL, JJ., concur.
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