People v. Almendarez

Decision Date18 August 1994
Docket NumberNos. 1-90-1863,1-91-0171,s. 1-90-1863
Citation266 Ill.App.3d 639,639 N.E.2d 619,203 Ill.Dec. 299
Parties, 203 Ill.Dec. 299 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arthur ALMENDAREZ and Francisco Nanez, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Rita A. Fry, Public Defender of Cook County (Andrea Monsees, Asst. Public Defender, of counsel) and Michael J. Pelletier, Deputy Defender, State Appellate Defender (Ann C. McCallister, Asst. Appellate Defender, of counsel), Chicago, for appellants.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee G. Goldfarb, Theodore F. Burtzos and Janet Powers Doyle, Asst. State's Attys., of counsel), for appellee.

Justice CAHILL delivered the opinion of the court:

After a trial before separate juries, Arthur Almendarez and Francisco Nanez were convicted of aggravated arson and the murder of two persons who died in the fire. The court sentenced each defendant to natural life in prison without parole. We consolidated their appeals and now affirm the convictions.

John Galvan, a third defendant, was tried separately. We affirmed his conviction for aggravated arson and murder in People v. Galvan (1993), 244 Ill.App.3d 298, 185 Ill.Dec. 257, 614 N.E.2d 391. The narrative of the crime and arrests appear in Galvan, and so we do not repeat them here.

On appeal Almendarez raises eight issues and Nanez five. We first address the issues raised by Almendarez.

Almendarez argues that the trial court erred when it denied his motion to quash the arrest and suppress the subsequent statement. Detective Switski testified at the hearing on the motion to quash. He stated that he spoke with Jose Ramirez, Soccoro Flores, Michael Almendarez, and John Galvan before he arrested Arthur Almendarez.

Jose Ramirez told Detective Switski that seconds before the fire started he saw John Galvan with a person named "Michael" and two other men walking together about a half block away from the house on 24th Place. Ramirez identified a photo of Michael Almendarez as the man he saw walking with John Galvan. The police brought Michael Almendarez and John Galvan to the station. Michael Almendarez stated that Galvan and Nanez said they started the fire. They told him that Nanez threw a bottle full of gas at the house and, when it did not ignite, Galvan lit it with a cigarette.

Galvan confessed and stated to police that he, Nanez, and Arthur Almendarez agreed to "burn out" a rival gang member who lived on 24th Place near Rockwell. Galvan said Nanez and Almendarez bought the gas and Nanez threw the bottle filled with gas at the house. Galvan further admitted that he threw a lit cigarette at the house and started the fire.

Soccoro Flores told police she saw three hispanic men standing in an alley on 24th Place moments before the fire. She then saw one of the men throw something and the house catch on fire.

The police then arrested Arthur Almendarez on the sidewalk in front of his house.

Almendarez contends he was arrested without probable cause. We disagree. Probable cause exists when the facts and circumstances known to the officers are such that a reasonable person would believe the suspect has committed a crime. (People v. Montgomery (1986), 112 Ill.2d 517, 98 Ill.Dec. 353, 494 N.E.2d 475.) Probable cause may be established by an accomplice where he makes a statement against his penal interest or the statement corroborates what the police already know. People v. James (1987), 118 Ill.2d 214, 113 Ill.Dec. 86, 514 N.E.2d 998.

In James, as here, the defendant was implicated by an accomplice who confessed and described the actions of both parties. The court held that a statement of an accomplice made while in police custody, implicating another, may be probable cause to arrest the person implicated if there is some indicia of reliability. (James, 118 Ill.2d at 225, 113 Ill.Dec. 86, 514 N.E.2d 998.) The James court set out three elements which enhance the reliability of such a statement: (1) it is against penal interest; (2) it was not made in response to promises of leniency or other inducements; and (3) it is supported by facts learned through police investigation. James, 118 Ill.2d at 224-25, 113 Ill.Dec. 86, 514 N.E.2d 998.

Here Galvan implicated himself as well as Almendarez in the arson. His admission to the police was not made in response to a promise of leniency or other inducement. It is supported by facts the police learned from talking with Jose Ramirez, Soccoro Flores, and Michael Almendarez.

Second, Almendarez argues that he was denied a fair trial when the court allowed Jose Ramirez to testify that John Galvan was a member of a gang. The State responds that the evidence was properly admitted because it was relevant to prove motive, and we agree.

Gang evidence is admissible to show a common purpose or design or to provide a motive for an otherwise inexplicable act. (People v. Smith (1990), 141 Ill.2d 40, 58, 152 Ill.Dec. 218, 565 N.E.2d 900.) The probative value of such evidence outweighs its prejudicial effect and the trier of fact may consider it. People v. Buchanan (1991), 211 Ill.App.3d 305, 320, 155 Ill.Dec. 831, 570 N.E.2d 344.

Here Detective Hanrahan testified that Almendarez admitted Galvan told him he was having problems with some "rival" gang members living in the area and wanted to burn their house down. The testimony that Galvan was a gang member and wanted to set fire to a rival gang member's house was the motive for an otherwise inexplicable act. In measuring prejudicial impact, we note that no one accused Almendarez of being a gang member. When the State asked Ramirez, "Do you know if Arthur Almendarez, the defendant, was a member of any street gang?", Ramirez answered, "I never seen him, you know; I never seen him."

Almendarez's third argument is that he was prejudiced by repeated references to the court reported statements of co-defendants. Almendarez takes issue with the trial testimony of assistant State's attorney Joel Leighton who was assigned to the felony review unit on June 8, 1987, and called to the station on that night. Leighton interviewed John Galvan and then Arthur Almendarez. Almendarez then made a written statement. At this point in his testimony, Leighton read to the jury Almendarez's statement admitting involvement in the crime. Leighton next testified that, after Almendarez made his statement, he spoke with Nanez for about ten minutes. Leighton then interviewed some other witnesses he did not identify and called for a court reporter. He was present when two court reported statements were made. The court reporter typed the statements, and Leighton reviewed them with the persons who made them.

Almendarez claims this testimony "went beyond what was necessary to describe the investigation and arrest." We disagree. Leighton did not reveal the substance of his conversations with the non-testifying co-defendants, only that conversations had taken place in the course of his investigation of the arson. Illinois courts have held this testimony to be proper, even if a logical inference may be drawn that the witness took subsequent steps as a result of the substance of the conversation. People v. Jones (1992), 153 Ill.2d 155, 180 Ill.Dec. 68, 606 N.E.2d 1145.

Almendarez's fourth contention is that the prosecutor made improper remarks in closing argument which denied him a fair trial. He has waived review of the issue by failing to properly object at trial and include the objections with specificity in a post trial motion. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.) We decline to examine this issue under the plain error doctrine in view of the overwhelming evidence of guilt.

Almendarez's fifth contention is that the trial court erred in finding that the State offered race neutral explanations for peremptory challenges to exclude two hispanic venire members in violation of Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Because the State explained its use of peremptory challenges, we do not address the moot issue of whether Almendarez has shown a prima facie case of racial discrimination. (See Hernandez v. New York (1991), 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 405.) We will not overturn the court's finding that the State's explanations were race neutral unless it is clearly erroneous. People v. Andrews (1993), 155 Ill.2d 286, 293-94, 185 Ill.Dec. 499, 614 N.E.2d 1184.

The State explained that it excused Elvira DeBorde because she spoke English and Spanish fluently. At least two witnesses were scheduled to testify through a Spanish-English translator. The State explained that it did not want to risk bi-lingual jurors gleaning nuances from testimony that other jurors might not hear. The State excused Concepcion Sierra because she worked as a teacher's aide at an elementary school when Francisco Nanez attended the school and because the school is near the crime scene.

We conclude that the trial court's finding was not clearly erroneous. Almendarez does not contend that a juror shared any of the characteristics of either Sierra or DeBorde. It is race neutral for the State to believe that DeBorde might pick up nuances from witnesses testifying through an interpreter. It is also race neutral for the State to believe that Sierra might discover she knew Nanez or heard or read about the crime.

Almendarez's sixth argument is that the court abused its discretion when it overruled three defense objections at trial. The first happened during the testimony of William Walton, a gas station attendant who sold gas to an hispanic man on the night of the fire. Walton testified that the man had a milk container but no gas can. Walton said the man told him that his car had run out of gas a few blocks away, so Walton sold him the gas. Almendarez argues that the man's statement is hearsay and improperly admitted. It is...

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    • United States
    • United States Appellate Court of Illinois
    • June 30, 2000
    ...against his penal interest while in police custody if there is some indicia of reliability. People v. Almendarez, 266 Ill.App.3d 639, 642, 203 Ill.Dec. 299, 639 N.E.2d 619, 622 (1994); People v. James, 118 Ill.2d 214, 224-25, 113 Ill.Dec. 86, 514 N.E.2d 998, 1001-02 (1987). Here, Williams, ......
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    • United States Appellate Court of Illinois
    • August 11, 1995
    ...a defendant may not claim as error rebuttal comments that were invited by his counsel's argument. People v. Almendarez (1994), 266 Ill.App.3d 639, 203 Ill.Dec. 299, 639 N.E.2d 619. We agree with the State's assertion that the prosecutor's comments were invited by the defense counsel's argum......
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