People v. Cabrera

• Decision Date: 20 June 1985
• Docket Number: No. 83-1293,83-1293
• Citation: 89 Ill.Dec. 427,480 N.E.2d 1170,134 Ill.App.3d 526
• Parties: , 89 Ill.Dec. 427 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William CABRERA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1170

480 N.E.2d 1170

134 Ill.App.3d 526, 89 Ill.Dec. 427

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William CABRERA, Defendant-Appellant.

No. 83-1293.

Appellate Court of Illinois,

First District, Fourth Division.

June 20, 1985.

Rehearing Denied July 24, 1985.

Steven Clark, Deputy Defender, Michael J. Pelletier, Asst. Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat, Mary Ellen Dienes, Richard A. Stevens, Chicago, of counsel), for plaintiff-appellee.

JOHNSON, Justice:

In a jury trial in the circuit court of Cook County, William Cabrera, defendant, was found guilty of murder, burglary, and robbery. He was sentenced to a term of 60 years for murder and to a term of 14 years for burglary and robbery, the sentences to run concurrently. On appeal, defendant argues that (1) he was denied a fair trial and an impartial jury; (2) the trial court's findings that the arresting officers had probable cause to arrest him is manifestly erroneous; (3) the trial court abused its discretion in giving him extended sentences for the convictions; (4) the 60-year sentence for murder is excessive; and (5) the State failed to prove beyond a reasonable doubt that he had a specific intent to commit a burglary.

We affirm as modified.

The facts reveal that on the night of February 10, 1981, at approximately 11:30 p.m., defendant Caberera and Ruben Lopez, his accomplice, gained unauthorized entry, through a window, into the offices of the Assyrian National Foundation, located at 1475 West Balmoral Avenue, in Chicago. Once inside the building, defendant stole money from the foundation and killed a man by strangling him and hitting him with a blunt instrument. Before leaving the premises, defendant and Lopez robbed the victim of traveler's checks. Several days later, defendant, with two other persons, went to the Century Mall in Chicago. While there, one of the individuals who accompanied defendant purchased clothes and paid for them with the stolen traveler's checks.

On February 23, 1981, police detectives Sappanos and Keane went to the Century Mall and interviewed Derrick Moore, the owner of the store where the stolen traveler's checks had been used. Moore informed the officers that he remembered the men who had used the checks. Moore viewed police department photographs and identified defendant as one of the persons who was with the individual who bought merchandise with the traveler's checks. Detectives Sappanos and Keane went to defendant's house the next day and arrested him for murder. The officers did not have an arrest warrant. Defendant consented to a search of his house. Prior to trial, defendant moved to quash his arrest and to suppress the evidence recovered, alleging there was no probable cause to arrest him. The trial court denied his motion, finding there was probable cause to arrest defendant.

Defendant argues that he was denied his right to a fair trial and an impartial jury when, after the verdict, the first juror polled by the trial judge indicated possible dissent from the verdict and the trial court failed to inquire as to that dissent. The following colloquy occurred:

"THE COURT: Is it your desire to have the jury polled, Mr. Lyster?

MR. LYSTER [counsel for defendant]: Yes.

THE COURT: I'm going to ask you this question, and I want you to pay attention to it.

Was this and is this now your verdict, Miss Cancinelli [sic]?

MS. CANCINELLI [sic] [juror]: Can I say what I have to say, or do I have to give a yes, or no answer?

THE COURT: I want a yes or no answer.

Was this and is this now your verdict?

MS. CANCINELLI [sic]: I found in my own person mind--

THE COURT: I said I want a yes or no answer.

Was this and is this now your verdict?

MS. CANCINELLI [sic]: Yes."

A defendant in a criminal case is guaranteed a trial by an impartial jury. (U.S. Const. Amend. VI; Ill. Const.1970, art. 1, § 8; Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.) Essential to that guarantee is the requirement that the verdict reached be freely arrived at by each juror. (Martin v. Morelock (1863), 32 Ill. 485, 488.) Defendant's right to individually poll jurors after a verdict is one method of safeguarding defendant's right to be tried by an impartial jury. (People v. DeStefano (1965), 64 Ill.App.2d 389, 408, 212 N.E.2d 357, 367.) Defendant argues that People v. Kellogg (1979), 77 Ill.2d 524, 34 Ill.Dec. 163, 397 N.E.2d 835, and People ex rel. Paul v. Harvey (1972), 9 Ill.App.3d 209, 292 N.E.2d 124, are controlling on the issue of juror dissent. He complains that the holding and reasoning of both cases require a reversal of his murder conviction.

In Kellogg, the jurors were polled and each juror was asked, "Was this then and is this now your verdict?" Eleven jurors replied, "Yes." The following colloquy occurred between the court and the remaining juror:

" 'THE COURT: Susan M. Vesecky, was this then and is this now your verdict?

JUROR VESECKY: Yes. Can I change my vote?

THE COURT: The question is, was this then and is this now your verdict?

JUROR VESECKY: (No response.)

THE COURT: Was this then and is this now your verdict?

JUROR VESECKY: Yes, Sir.' " (77 Ill.2d 524, 527, 34 Ill.Dec. 163, 397 N.E.2d 835.)

The court held there was nothing wrong with the double-barrel question used in the colloquy, "Was this then and is this now your verdict;" nevertheless, it held if a juror indicates some hesitancy or ambivalence in his answer, it is the trial judge's duty to ascertain the juror's present intent by affording the juror the opportunity to make an unambiguous reply as to his present state of mind. (77 Ill.2d 524, 528, 34 Ill.Dec. 163, 397 N.E.2d 835.) The court reversed defendant's conviction in Kellogg because the trial court failed to follow this duty.

In People ex rel. Paul v. Harvey (1972), 9 Ill.App.3d 209, 210, 292 N.E.2d 124, 125-26, the following colloquy occurred at trial between the court and a juror during polling:

" 'THE COURT: Is this and was this your verdict?

JUROR: Well, it wasn't exactly, no.

THE COURT: Did you sign this?

JUROR: Yes, I did.

THE COURT: Then it's your verdict.' "

The court held that the juror indicated possible dissent, and the trial court, therefore, had a duty to inquire as to that dissent. Harvey, at 212, 292 N.E.2d 124.

Defendant's case is distinguishable from Kellogg and Harvey because, unlike the jurors in those cases, Ms. Ciancanelli did not indicate ambivalence or hesitancy in her reply. We do not interpret her replies, "Can I say what I have to say or do I have to give a yes, or no answer?" and "I found in my own person mind," as indicating ambivalence or hesitancy in her answer. In Kellogg and Harvey, it was clear to the reviewing court that the jurors had reservations about their decision. Here, Ms. Ciancanelli never indicated to the trial court that her vote as reached during deliberation did not accurately reflect her decision as to defendant's guilt.

The primary purpose of jury polling is to determine that the jury's verdict accurately reflects each juror's vote as reached during deliberations and that the juror's vote was not the result of force or coercion. (People v. Williams (1983), 97 Ill.2d 252, 307, 73 Ill.Dec. 360, 386, 454 N.E.2d 220, 246.) A judge must be careful to determine the juror's present intent in the polling. (People v. Kellogg (1979), 77 Ill.2d 524, 529, 34 Ill.Dec. 163, 166, 397 N.E.2d 835, 838.) It is for the trial court to determine whether a juror has freely assented to the verdict. It not only hears the juror's response, it also observes the juror's demeanor and tone of voice. (77 Ill.2d 524, 529, 34 Ill.Dec. 163, 397 N.E.2d 835.) We can only second-guess at this stage on those factors considered by the trial court. We, therefore, conclude that unless it is clear to the reviewing court that a juror indicated possible dissent, we will not reverse on jury dissent grounds. Since Ms. Ciancanelli's response indicated no ambivalence or hesitancy, there was no cause for the judge to further question her as to possible dissent. Thus, we hold the trial court had no duty to inquire as to her possible dissent.

Defendant also contends that a statement given by Ms. Ciancanelli 2 hours after the jurors were dismissed indicates that she wanted to dissent from the verdict and change her vote. A statement which goes to the deliberation process and is taken after the verdict has been read, and the jury has been polled and discharged, is not admissible (People v. Preston (1979), 76 Ill.2d 274, 288, 29 Ill.Dec. 96, 103, 391 N.E.2d 359, 366), and therefore not reviewable by this court. Accordingly, after the jurors were discharged, Ms. Ciancanelli's change of mind or claim that she was mistaken or unwilling in her assent to the verdict comes too late. 76 Ill.2d 274, 288, 29 Ill.Dec. 96, 391 N.E.2d 359.

Before trial, defendant motioned the court to quash his arrest for lack of probable cause and to suppress the evidence recovered as a consequence of the illegal arrest. He contends the trial court's findings of probable cause to arrest was manifestly erroneous because it was based entirely on defendant's presence with another person who used traveler's checks stolen from the murder victim.

Probable cause to arrest exists where the facts and circumstances known to the police would justify a man of reasonable caution to believe that a crime has been committed by the individual he intends to arrest. (People v. Miller (1980), 91 Ill.App.3d 1031, 1037, 47 Ill.Dec. 533, 538, 415 N.E.2d 538, 543.) It is something less than evidence necessary to result in conviction. (People v. Frye (1983), 113 Ill.App.3d 853, 859, 69 Ill.Dec. 630, 634, 447 N.E.2d 1065, 1069.) In determining the existence of probable cause, the courts are concerned with probabilities derived from factual and practical consideration of everyday life by reasonable, prudent...