People v. Torres

591 N.E.2d 528, 227 Ill. App. 3d 341, 169 Ill. Dec. 355, 1992 Ill. App. LEXIS 667
CourtAppellate Court of Illinois
DecidedApril 29, 1992
DocketNo. 2—90—0528
StatusPublished

This text of 591 N.E.2d 528 (People v. Torres) 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. Torres, 591 N.E.2d 528, 227 Ill. App. 3d 341, 169 Ill. Dec. 355, 1992 Ill. App. LEXIS 667 (Ill. Ct. App. 1992).

Opinion

JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Oscar Torres, was convicted by a jury of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)) based on a theory of accountability. Defendant appeals, asserting that the trial court’s response to an inquiry by the jury that the jury must reach unanimous agreement on the verdict improperly coerced a guilty verdict and that the State improperly introduced evidence and argument of defendant’s invocation of his right to remain silent. We affirm.

On September 21 and 22, 1988, two gas stations in the Rockford area of Winnebago County were robbed at gunpoint by Corey Hughes. Hughes was arrested on September 23, 1988, and eventually pleaded guilty to the second robbery. Hughes gave police a statement identifying defendant as the driver of the car used during the robberies. Hughes further testified at trial that defendant not only drove Hughes to each of the gas stations and waited outside while Hughes committed the robberies, but also provided the gun used in both robberies and received a share of the money stolen from, each gas station. However, none of the victims could identify either the car used or the driver.

Defendant was arrested later on September 23, 1988, and, after being taken to the Rockford police department, was advised of his rights, each of which he acknowledged. In response to the arresting officers’ indication that they were investigating the robberies, defendant volunteered that he did not have a gun. When the officers told defendant that Hughes had already implicated defendant, defendant admitted that he had given the gun to Hughes, driven the car used during each offense, and received an amount of money from each robbery that matched the amount in Hughes’ statement. However, defendant proclaimed that he had not entered either gas station and had in fact remained in his car the entire time, except to step outside briefly to relieve himself. Defendant agreed to sign a written statement to this effect, but when the statement was reduced to typewritten form, defendant said that he wanted to speak with an attorney. The officers testified that they then ceased all questioning, and defendant was placed in a holding cell while the officers contacted the State’s Attorney. Defendant objected to the officers’ testimony referring to the call to the State’s Attorney, but not to the reference to defendant's request for an attorney. That objection was overruled. Defendant was eventually charged with only the September 21, 1988, offense.

Defendant pleaded not guilty, and, although defendant exercised his privilege to remain silent and did not testify, defendant’s counsel argued that defendant’s not-guilty plea inherently denied that defendant provided the gun and participated in the offense. Rather, defendant’s counsel argued that the officers’ conduct had coerced defendant, who was only 17 years old and who had never before been arrested, to make the incriminating statements. He argued that despite the officers’ technical compliance with the dictates of Miranda, the officers failed to explain the significance of those rights to defendant, which defendant did not fully comprehend because of his youth. Defendant’s counsel asserted that the officers’ failure to affirmatively offer to allow defendant to call his parents or an attorney was calculated to take advantage of defendant’s youth, inexperience, and fears. However, defendant’s motion to suppress evidence of defendant’s statements based on the same argument had been denied prior to trial because the officers had correctly treated defendant as an adult. Ill. Rev. Stat. 1987, ch. 37, par. 805 — 3 (defining “minor” as under 17 years of age).

In addition to the officers’ recitation of defendant’s voluntary post-arrest statements, the State offered the testimony of Hughes to corroborate the officers’ testimony. Defendant attacked Hughes’ testimony as incredible and fabricated for the purpose of obtaining a reduced sentence. However, an assistant State’s Attorney testified that Hughes had neither been offered nor received a plea bargain. Hughes attempted to assert his fifth amendment privilege, which the court found inapplicable, to avoid testifying against defendant. Hughes also attempted to place a telephone call to defendant the evening before his testimony.

In closing argument, the State commented that “the first thing notable about what the defendant told [the officers] is not what he said, it’s what he didn’t say. He did not say it was a total surprise to me that this guy Corey had a gun. He did not say I didn’t really want to do these armed robberies but other people pushed me into it. He did not say Corey did the driving around and I just rode around in my car and I had given him the keys. He didn’t say anything like that.” Defendant, however, failed to object to these comments.

After 2 hours and 10 minutes of deliberations, the jury sent the trial court a note that read: “[pjlease advise of the rules based on a hung jury. We are not in total agreement; and, are having misunderstandings on the instruction of the law. We have an 8 to 4 split.” The court determined, however, that this inquiry did not indicate that the jury was deadlocked, and, therefore, a Prim instruction was not yet necessary. (People v. Prim (1972), 53 Ill. 2d 62, 72-76.) Rather, the court instructed the jury to refer to the court’s prior instructions and continue its deliberations and, expressly relying on Illinois Pattern Jury Instructions, Criminal, No. 26.01 (2d ed. 1981) (hereinafter IPI Criminal 2d), that “[yjour agreement on a verdict must be unanimous.”

Sometime later, the jury returned a guilty verdict. Defendant appeals and asserts that the officers’ testimony that defendant requested an attorney and the State’s argument of defendant’s failure in his voluntary statement to deny his purposeful involvement in the offenses impermissibly infringed defendant’s exercise of his fifth amendment right to remain silent. Defendant further asserts that the trial court’s direction to the jurors that they were required to reach unanimous agreement on the verdict coerced a guilty verdict.

Defendant raises three issues pertaining to the right to remain silent. First, defendant asserts his sixth amendment right to counsel was impaired by the testimony of the officers that, after giving a voluntary post-arrest statement, defendant requested an attorney. Initially, we note that the sixth amendment right to counsel does not attach until a defendant is indicted or arraigned. (People v. Thompkins (1988), 121 Ill. 2d 401, 433.) Thus, in this instance only the common-law prophylactic right to counsel necessary to protect a defendant’s constitutional right to remain silent was implicated. (Michigan v. Tucker (1974), 417 U.S. 433, 446, 41 L. Ed. 2d 182, 194, 94 S. Ct. 2357, 2364-65; McNeil v. Wisconsin (1991), 501 U.S. 171, 176, 115 L. Ed. 2d 158, 167, 111 S. Ct. 2204, 2208.) Defendant also contends that the State’s comments during closing argument on the omissions in defendant’s statements impermissibly impaired defendant’s right to remain silent. Specifically, the State argued that defendant’s failure to tell the officers that he was surprised when Hughes committed the robberies demonstrated defendant’s intent that the robberies occurred.

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Cite This Page — Counsel Stack

Bluebook (online)
591 N.E.2d 528, 227 Ill. App. 3d 341, 169 Ill. Dec. 355, 1992 Ill. App. LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-torres-illappct-1992.