People v. Hernandez

840 N.E.2d 1254, 362 Ill. App. 3d 779, 298 Ill. Dec. 819, 2005 Ill. App. LEXIS 1204
CourtAppellate Court of Illinois
DecidedDecember 8, 2005
Docket1-04-0074
StatusPublished
Cited by16 cases

This text of 840 N.E.2d 1254 (People v. Hernandez) 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. Hernandez, 840 N.E.2d 1254, 362 Ill. App. 3d 779, 298 Ill. Dec. 819, 2005 Ill. App. LEXIS 1204 (Ill. Ct. App. 2005).

Opinion

PRESIDING JUSTICE QUINN

delivered the opinion of the court:

Defendant Javier Hernandez was convicted of first degree murder (720 ILCS 5/9 — 1(a)(1) (West 2002)) and sentenced to 40 years in the Illinois Department of Corrections. On appeal, defendant argues (1) the circuit court erred in admitting into evidence his videotaped statement, which he claims was improperly obtained after he had invoked his right to remain silent; (2) his trial counsel was ineffective because, even though his counsel had attempted to suppress all of defendant’s inculpatory statements, he failed to seek to suppress defendant’s videotaped statement on the basis that it was procured after defendant had invoked his right to silence; (3) the evidence was insufficient to prove that he was responsible for first degree murder under a “common design” theory of accountability; and (4) he did not knowingly and intelligently waive his right to a jury trial. For the following reasons, we reverse and remand this cause for a new trial.

BACKGROUND

On June 25, 2000, Roy George and Abel Reyes were attacked by a group of Satan Disciples gang members. George was killed after one of those gang members broke a piece of asphalt over his head. After being arrested, defendant agreed to give a videotaped statement discussing his involvement in George’s death to Assistant State’s Attorney Victoria Ciszek (ASA Ciszek). According to the verbatim transcript of defendant’s videotaped statement (the actual videotape was not included in the record before this court), after ASA Ciszek had informed defendant who she was and defendant had confirmed that he had been read his Miranda rights, the following colloquy occurred between ASA Ciszek and defendant:

“Q. Havier [sic! Hernandez, I talked to you earlier and you told me about the murder of Roy George. At that time you told me that you and other members of the Satan Disciples decided to beat up Roy George. You picked up a large brick and chased Roy George into an alley with other Satan Disciples. The other Satan Disciples punched and kicked him. Roy George fell to the ground and while he was on the ground you threw the brick at him which hit him in the head. I’m going to read you your rights again. Do you understand that you have the right to remain silent?
A. Yes.
Q. Could you please keep your voice up?
A. Yes.
Q. Do you understand you have the right to talk to a lawyer and have him present with you while you are being questioned?
A. Yes.
Q. Do you understand if you cannot afford to hire a lawyer and you want one, a lawyer will be appointed by the court to represent you before any questioning?
A. Yes.
Q. Do you understand that although you are a juvenile, you will be tried as an adult? Do you understand that?
A. Yes.
Q. Understanding these rights, do you wish to talk to us now?
A. No, not no more.
Q. Do you wish to talk to us now about what we previously spoken [sic] to?
A. Yes.”

Defendant then went on to discuss his role in George’s murder.

Prior to trial, defense counsel filed motions to quash defendant’s arrest and suppress any statements he made to the police or prosecutors. In the motion to suppress defendant’s statements, defense counsel sought to bar “any and all oral or written communications, confessions, statements or admissions whether inculpatory or exculpatory made by [defendant] prior to, at the time of, or subsequent to his arrest in the above entitled cause,” and listed several bases for the suppression of those statements. That defendant had invoked his right to silence during his videotaped statement was not one of them.

During the hearing on defendant’s motions to quash and suppress statements, several witnesses testified for both defendant and the State. During the hearing on defendant’s motion to quash his arrest, Detective Gregory Swiderek testified that Enrique Zamora, a Satan Disciple who later pleaded guilty for his role in attacking George and Reyes, told him that defendant “said that on the night of the beating, murder, that the Folks, meaning the Satan Disciples, were punching and kicking some guy. And when he was held down, he hit him in the head with a brick and saw his brains in the alley.” Detective Swiderek also testified that defendant admitted to “striking Roy George with a brick.”

Witnesses of note during the hearing on defendant’s motion to suppress statements were Officer Cortez, who testified that he was in the interview room with defendant and ASA Ciszek while they were “basically going over what they were gonna to [sic] do on the videotape” before that statement was made and served as a translator for defendant’s mother during defendant’s videotaped statement; Detective Gregory Swiderek, who testified that he spoke with defendant regarding his role in George’s death and that he placed defendant under arrest “after [defendant] gave [him] a statement incriminating himself and his involvement in the murder”; ASA Ciszek, who testified that she spoke with defendant about the “incident that occurred on June 25” for about 45 minutes, that after that conversation, defendant agreed to make a videotaped statement, which contained “basically the same information,” and that Detective Swiderek had told her that defendant had already “implicated himself in the murder”; and defendant, who testified that he spoke to Detective Swiderek and “told him about what had occurred relative to Roy George and all the other fellows that were out on the street that day.” After each hearing, the circuit court denied defendant’s motions.

At trial, the following individuals testified on behalf of the State: Josephine Garcia (the victim’s mother), Reyes (George’s friend who was also attacked by the Satan Disciples on the night of George’s murder), and ASA Ciszek. Ms. Garcia testified that on June 25, 2000, she found her battered son lying in the alley near 21st and Leavitt and that he died later that night.

Reyes testified that a group of Satan Disciples attacked him and George for smoking POP in a park located in the gang’s territory. Reyes did not see what happened to George, nor was he able to identify defendant as one of his attackers.

ASA Ciszek testified that she spoke with defendant about his role in George’s murder for 45 minutes and that, after their conversation, defendant chose to make a videotaped statement. She did not testify to what was said during that 45-minute “pre-videotaped statement” conversation. Defendant’s videotaped statement was played in open court during her testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
840 N.E.2d 1254, 362 Ill. App. 3d 779, 298 Ill. Dec. 819, 2005 Ill. App. LEXIS 1204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hernandez-illappct-2005.