People v. Cardona

Decision Date08 December 1992
Docket NumberNo. 1-89-1461,1-89-1461
Citation181 Ill.Dec. 8,608 N.E.2d 81,240 Ill.App.3d 110
Parties, 181 Ill.Dec. 8 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregorio CARDONA, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Public Defender of Cook County, Chicago (Rita A. Fry and Elyse Krug Miller, of counsel), for defendant-appellant.

State's Attorney of Cook County, Chicago (Jack O'Malley, Renee Goldfarb, Maureen Harton and Kathleen Bom, of counsel), for plaintiff-appellee.

Justice McCORMICK delivered the opinion of the court:

Defendant, Gregorio Cardona, his brother Roberto, and four other persons participated in a residential burglary in which one of the burglars killed the homeowner. A jury found defendant guilty of murder and residential burglary, and the trial court imposed consecutive sentences of 40 and 15 years' imprisonment for the crimes. Defendant appeals from these convictions.

We affirm the conviction for felony murder. The trial court committed no reversible error in its evidentiary rulings. The trial court properly inferred from the jury verdict the jury's intention to convict defendant for felony murder. Since the verdict could not support an inference that the jury found intentional murder, we vacate the conviction for that count. We vacate the conviction for residential burglary as that is a lesser-included offense of the felony murder. Finally, we affirm the sentence the trial court imposed for felony murder. We discuss the facts pertinent to each issue separately.

I.

On June 23, 1987, Raymond Carvis died in his home due to multiple stab wounds. His house was ransacked and stereo equipment and jewelry was missing.

A few days later Roberto Cardona sold on the street some jewelry which police believed to be that which had been taken from Carvis' home. When police questioned Roberto, he told them that on June 23, 1987, he saw Lowell Higgins-Bey and Michael McCastle burglarizing Carvis' home.

Police arrested Higgins-Bey and McCastle and told them, in separate interviews, that Roberto implicated them in the burglary. Higgins-Bey told police that he participated in the burglary with McCastle, Roberto and defendant. McCastle also admitted participating in the burglary and implicated defendant as another participant. Confronted with these statements, Roberto admitted that he and defendant had participated in the burglary. Police arrested defendant about two hours after Roberto made this admission, after 11 p.m. on July 15, 1987, without obtaining a warrant.

The trial court denied defendant's pretrial motion to quash arrest. On appeal defendant maintains that the statements of Higgins-Bey and McCastle were not sufficiently reliable to support a finding of probable cause.

Sufficient indicia of reliability must support the information which police rely upon to establish probable cause. (People v. James (1987), 118 Ill.2d 214, 222, 113 Ill.Dec. 86, 514 N.E.2d 998.) "One indicia of reliability of information is found in admissions against the penal interests of the party giving the information." (James, 118 Ill.2d at 223, 113 Ill.Dec. 86, 514 N.E.2d 998.) Another is in corroboration of the information from other witnesses. (People v. Denham (1968), 41 Ill.2d 1, 5, 241 N.E.2d 415.) Here, three persons made statements against their own penal interests which also implicated defendant, and those statements substantially corroborated each other. The trial court's finding of probable cause was not manifestly erroneous. See People v. Adams (1989), 131 Ill.2d 387, 400, 137 Ill.Dec. 616, 546 N.E.2d 561.

II.

Police permitted Roberto to talk to defendant, who was then 16 years old, at the station. With Officer William O'Donnell present, Roberto said to defendant: "[C]ooperate with these guys; they are going to help you." Defendant later made a statement implicating himself in the burglary. Defendant admitted, in the written statement, that no promises were made to him to induce the confession.

At the hearing on defendant's motion to suppress his statement, O'Donnell admitted that he overheard the conversation and said nothing. He testified that police never told Roberto what to say to defendant. The officers who were present during questioning of defendant testified that police read defendant his rights, defendant never asked for a lawyer, and police never threatened, coerced or mistreated defendant.

Youth Officer James Bach testified that he arrived at the police station at 1:30 a.m. on July 16, 1987, about two hours after defendant arrived at the station. Bach asked the assistant State's Attorney whether he had informed defendant's parents of the arrest and advised defendant of his Miranda rights. The assistant State's Attorney answered that he had. Defendant told Bach that he understood his rights. Bach remained with defendant throughout the subsequent questioning, staying after defendant confessed at 4:30 a.m.

Defendant testified that when he came to the police station officers asked him to sign some papers. He refused and asked to speak to his lawyer. Officers told him they would bring his brother down to talk sense to him. His brother told him that if he went along with the story that the police would tell him, they would both be released the next morning. Since Roberto had been in custody the day before, and police had released him, defendant believed him. Police did not tell him his rights before he made his confession.

The trial court denied defendant's motion, finding that "defendant was treated like a gentleman at the police station. There is no * * * believable evidence of any physical, psychological or any other type of coercion. There was in fact a reading of the Miranda [r]ights."

Defendant contends that the trial court should have suppressed his statements to the police as involuntary because police, through defendant's brother, promised to release him and because police failed to take him to a youth officer before questioning.

The court must look to the totality of the circumstances to determine whether a defendant made statements voluntarily. (In re Lamb (1975), 61 Ill.2d 383, 388, 336 N.E.2d 753.) "[C]ourts must be especially cautious in cases involving juveniles because the coerciveness of a situation is thereby enhanced." (People v. Cole (1988), 168 Ill.App.3d 172, 179, 118 Ill.Dec. 965, 522 N.E.2d 635.) The court may consider such factors as defendant's age, the length of interrogation, defendant's need for sleep, presence of a youth officer and promises made to defendant, but no single one of these factors mandates a finding of involuntariness. (People v. Pittman (1973), 55 Ill.2d 39, 302 N.E.2d 7; People v. McGhee (1987), 154 Ill.App.3d 232, 240, 107 Ill.Dec. 369, 507 N.E.2d 33; People v. Wright (1984), 127 Ill.App.3d 747, 751, 82 Ill.Dec. 817, 469 N.E.2d 351.) This court will not overturn the trial court's determination of voluntariness unless that determination is contrary to the manifest weight of the evidence. People v. Wipfler (1977), 68 Ill.2d 158, 11 Ill.Dec. 262, 368 N.E.2d 870.

Police interrogated defendant, who was then 16 years old, from 11:30 p.m. until 4:30 a.m. The trial judge believed police testimony that they advised defendant of his Miranda rights before questioning him and they treated him well. The youth officer did not arrive until 1:30 a.m., when questioning was in progress, but the officer reminded defendant of his rights and remained with him throughout subsequent questioning. The police did not directly make any promises to defendant, and defendant admitted in his transcribed statement that police made no promises to induce the statement. The trial court's finding that defendant confessed voluntarily is not contrary to the manifest weight of the evidence. See In re Potts (1978), 58 Ill.App.3d 550, 16 Ill.Dec. 116, 374 N.E.2d 891.

III.

The State charged Fernando Gomez, Henry Rodriguez, McCastle, Higgins-Bey and the Cardonas with murder and residential burglary. Gomez and Higgins-Bey agreed to plead guilty to residential burglary and testify against McCastle, Rodriguez and the Cardonas. The State tried defendant on an indictment in four counts, which charged him as one accountable for (1) intentional killing; (2) stabbing the victim while knowing that the acts created a strong probability of death or great bodily harm; (3) killing in the course of the forcible felony of residential burglary; and (4) residential burglary.

Gomez testified that on June 23, 1987, he met the other five participants in front of the Cardonas' home and they agreed to burglarize a home. They went to Carvis' home, which was nearby, and Rodriguez went in. After a minute he told Gomez, McCastle and Roberto to follow him, while Higgins-Bey and defendant waited outside. When Gomez entered, he saw Carvis standing by the staircase. McCastle, Rodriguez and Roberto began to struggle with Carvis while Gomez went through the house, looking for things to steal.

Gomez testified that defendant came in later and hit Carvis. Rodriguez pulled out a knife and stabbed Carvis once. Gomez and defendant went back to the television room and Rodriguez said, "Get something to tie this motherfucker up." Defendant gave Rodriguez a tie. Gomez then left. Shortly after he left, he saw defendant leave; Roberto carried some things out of the home a few minutes later.

Gomez admitted that he lied in his first statement to the police. In his written, signed statement, he said he saw Higgins-Bey kicking Carvis. He explained that he said this because police told him Higgins-Bey implicated him in the burglary. Gomez also told police that he met the other participants over at Maple and Potomac streets, which is not near defendant's home, in order to throw them off. On cross-examination, Gomez admitted that he also told police, falsely, that Roberto drove to Carvis' home in a black car and that he had stopped at a McDonald's on the way. He admitted that he lied further...

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9 cases
  • People v. Stremmel
    • United States
    • United States Appellate Court of Illinois
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    ... ... Henderson (1990), 142 Ill.2d 258, 320, 154 Ill.Dec. 785, 568 N.E.2d 1234) and corroborated and explained the medical examiner's testimony (People v. Cardona ... ...
  • People v. Washington
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    • May 30, 1995
    ... ... 805, 519 N.E.2d 1020, in support of his argument. The State asserts that because defendant failed to object to the imposition of the sentences, or include this argument in his post-trial motion, it is waived ...         In People v. Cardona (1992), 240 Ill.App.3d 110, 124-27, 181 Ill.Dec. 8, 608 N.E.2d 81, rev'd in part and vacated in part on other grounds (1994), 158 Ill.2d 403, 199 Ill.Dec. 667, 634 N.E.2d 720, this issue was addressed in the context of convictions for felony murder and the predicate felony of residential burglary ... ...
  • People v. Prince
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    ... ... We agree, and that conviction and sentence must be vacated. People v. Washington, 272 Ill.App.3d 913, 919-20, 209 Ill.Dec. 447, 651 N.E.2d 625 (1995); People v. Cardona, 240 Ill.App.3d 110, 126, 181 Ill.Dec. 8, 608 N.E.2d 81 (1992) ...         Defendant lastly contends the circuit court erred in excessively [288 Ill.App.3d 279] sentencing him to sixty years for the felony murder conviction, because the shooting was accidental and the attempted armed ... ...
  • People v. Denton
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    • December 28, 1993
    ... ... (People v. Martin (1984), 102 Ill.2d 412, 427, 80 Ill.Dec. 776, 466 N.E.2d 228; People v. Cardona (1992), 240 Ill.App.3d 110, 115, 181 Ill.Dec. 8, 608 N.E.2d 81.) Although defendant was only 14 years old, he had considerable experience dealing with police, as his mother said police often talked to him. Defendant did not complain that he was hungry or tired during questioning. Police took ... ...
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1 books & journal articles
  • Chapter VIII Consecutive Sentencing: 730 Ilcs 5/5-8-4
    • United States
    • Guide to Sentencing and Bond Hearings in Illinois Part I Sentencing Guide
    • Invalid date
    ...be sentenced separately and consecutively to the Murder, (and possibly, consecutively to each other, as well). See People Cardona, 240 Ill. App. 3d 110 (1st Dist. 1992). Furthermore, be aware that a defendant must be given a separate verdict form for the Felony Murder count when he requests......

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