People v. Guttierrez

390 N.E.2d 25, 71 Ill. App. 3d 537, 28 Ill. Dec. 43, 1979 Ill. App. LEXIS 2496
CourtAppellate Court of Illinois
DecidedApril 16, 1979
DocketNo. 78-846
StatusPublished
Cited by4 cases

This text of 390 N.E.2d 25 (People v. Guttierrez) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Guttierrez, 390 N.E.2d 25, 71 Ill. App. 3d 537, 28 Ill. Dec. 43, 1979 Ill. App. LEXIS 2496 (Ill. Ct. App. 1979).

Opinion

Mr. JUSTICE McGLOON

delivered the opinion of the court:

Respondent appeals from a judgment of the circuit court of Cook County which revoked his probation and committed him to the Department of Corrections, Juvenile Division. On appeal, respondent contends (1) he was improperly denied a hearing on his motion to suppress statements, (2) the court erred in admitting and relying upon a hearsay statement that respondent had told police his brother had committed the offense, and (3) the court erred in admitting a hearsay police radio dispatch containing a description of the alleged offender as a Mexican.

We reverse and remand.

On October 21, 1976, respondent was found delinquent for having committed the offense of unlawful use of weapons (Ill. Rev. Stat. 1975, ch. 38, par. 24 — 1(a)(4)) and placed on 10 months probation. One month later, a supplemental petition to revoke probation was filed, alleging he committed the offense of armed robbery of Frank Sadus. (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2.) Two attempts by respondent to conduct a hearing to suppress statements were rejected by the trial court prior to the revocation hearing.

At the revocation hearing Frank Sadus testified that at approximately 6:20 p.m., on November 20, 1976, he was at his suburban home with his wife, Josephine. When his wife answered the doorbell, a man wearing a black mask and a long trench coat pushed his way inside, poked his wife with a gun he was holding and said, “This is a stickup.” He did not recall what type of shoes the intruder was wearing. When the intruder demanded money, his wife gave him *20 from the dresser and then looked for more money before leaving. On cross-examination, he testified the man was 5 feet tall and that he had told Officer Peligreno the assailant had blond hair coming out from under the mask.

Josephine Sadus testified the assailant was wearing “a black ski mask with red” and a trench coat which was open, revealing a white shirt. She did not know if he had blond hair, but she said “There was something that looked like blonde,” although it might have been the lining from the cap. She could not identify the assailant.

Chicago Heights Police Detective Manuel Martinez testified that on November 20, 1976, he was on patrol when he received a radio dispatch of the armed robbery and home invasion. The broadcast described the assailant as a male white, Mexican, 5 feet 5 inches in height, wearing a dark trench coat and ski mask. The witness proceeded in response to the call and observed a man running toward the alley crossing the railroad tracks; he then saw him leaning into a garbage can as if he were putting something inside. The officer pursued the subject, and recognized him as respondent. He returned to the garbage can where he found a dark trench coat and red-white-and-blue gym shoes, which were subsequently admitted into evidence over objection. On November 22,1976, Detective Kuester informed this witness respondent was in custody at the police station. When asked if respondent was apprised of his constitutional rights at that time, Officer Martinez testified without objection that Detective Kuester claimed that respondent had been. Martinez identified respondent as the person fleeing in the alley and Detective Kuester then advised him respondent had made a statement, “That it was his brother.” Counsel objected on the grounds of hearsay, and the court sustained the objection. But the court continued: “He is aware that the rights were' given. He so testified. It is in the record. Is that correct, officer?” Officer Martinez then responded affirmatively.

On cross-examination, Officer Martinez testified that when he arrived at the station both respondent and respondent’s brother, Raul, were in custody. He denied the respondent was told to give a statement. He did not know if the coat or shoes fit respondent.

Respondent testified he was 16 years of age, and he denied committing the armed robbery. He claimed that, when he was first asked where he was at 6:20 p.m. on November 20,1976, he responded he was at Michael Mackin’s house. He explained he had been there from about 3 p.m. until 5:45 p.m. At about 6 p.m. Michael picked him up, took him to a dance at the Ford plant and dropped him off. He stayed at the dance and got a ride home about 2 hours later. He denied that Officer Martinez had seen him in the alley or that he put the coat and shoes in the garbage can. Respondent stated that Officer Peligreno arrested him, took him to the police station and questioned him. Respondent told him where he was on November 20. Three detectives then took him in a room and started questioning him. Two detectives remarked that they could not communicate with him and said perhaps they should get “a Mexican cop” to assist them. Respondent complained that that was not necessary because he could speak English. The officer said they would get him anyway and brought in Officer Martinez, who identified him. Respondent then continued to deny any involvement until Officer Martinez slapped him across the face, hit him in the eye and leg, and threatened him with physical harm. The police then brought both respondent and his brother into the same room and told him to tell them his brother did it. Respondent testified that one officer told him that if he had done the armed robbery to plead guilty because he was on probation and did not have any choice. Both respondent and his brother were threatened by an officer with a club. The police later took his brother to one room, left him in the room and started hitting on him. Respondent testified that none of the officers told him he had a right not to give any statement or to have a lawyer present, or if he were not able to pay for one that they would provide one for him. According to respondent his brother was not in court to verify his account because he was in military service. On cross-examination, he testified that at no time did he tell the oEcers that it was his brother that committed the crime. He recalled that when he asked for a lawyer, the police started laughing. Thus respondent did not tell the oEcers anything but remained silent.

Michael Mackin confirmed that respondent was at his house until about 5:45 p.m., when he went home to change clothes. He picked respondent up at 6 p.m. and took him to a dance at the Ford plant.

OEcer Martinez testified in rebuttal that a supplemental report written by Detective Kuester indicated respondent made an accusation involving his brother, Raul. At the conclusion of his testimony, respondent objected to this testimony as hearsay, but the court overruled the objection, since the oEcer had testEed without objection on direct examination that there was an exculpatory statement by the minor that his brother was the one who did it.

Respondent first contends the trial court erred in not holding a hearing on his motion to suppress statements he allegedly had made. The State argues that respondent’s statement was exculpatory rather than inculpatory. However, whether exculpatory or inculpatory, the statement should not have been admitted until it was found to be voluntary. (People v. King (1974), 22 Ill. App. 3d 66, 71, 316 N.E.2d 642.) Subsequent to the filing of the briefs, our supreme court held in People v. Peterson (1978), 74 Ill. 2d 478, 384 N.E.2d 348

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Bluebook (online)
390 N.E.2d 25, 71 Ill. App. 3d 537, 28 Ill. Dec. 43, 1979 Ill. App. LEXIS 2496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-guttierrez-illappct-1979.