People v. Sanchez

• Decision Date: 02 November 1987
• Docket Number: No. 85-3284,85-3284
• Citation: 114 Ill.Dec. 401,163 Ill.App.3d 186,516 N.E.2d 556
• Parties: , 114 Ill.Dec. 401 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Armando SANCHEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 556

516 N.E.2d 556

163 Ill.App.3d 186, 114 Ill.Dec. 401

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Armando SANCHEZ, Defendant-Appellant.

No. 85-3284.

Appellate Court of Illinois First District, First Division.

Nov. 2, 1987.

Lawrence Wolf Levin, Steven R. Decker, Chicago, for defendant-appellant Armando Sanchez.

Richard M. Daley, State's Atty., Chicago, Thomas V. Gainer, Jr., Rimas F. Cernius, Mary C. Morris, for plaintiff-appellee.

Justice O'CONNOR delivered the opinion of the court:

Following a jury trial, defendant, Armando Sanchez, was found guilty of residential burglary (Ill.Rev.Stat.1985, ch. 38, par. 19-3), and was sentenced to 10 years imprisonment.

On appeal, defendant contends that (1) the State violated discovery by failing to disclose the existence of an informant who did not testify; (2) his 10 year sentence is excessive; (3) the trial judge's remarks during voir dire deprived him of a fair trial; (4) hearsay testimony was improperly admitted; (5) he was denied a fair trial by the State's opening statement and closing argument; and (6) he was not proved guilty of residential burglary beyond a reasonable doubt. For the reasons that follow, we affirm.

On October 27, 1983, Gustavo Comacho returned to his home, located at 1639 W. Farragut in Chicago, sometime after 2:15 p.m., the end of his shift at the Curtis Candy Company, his place of employment. At about 4:00 p.m., Comacho went to work at his family's variety store. He returned home between 8:30 p.m. and 9:00 p.m. and found that someone had broken open his rear door. He discovered that his locked safety box, containing jewelry and currency among other things was missing. In particular, a unique purple amethyst ring with a Columbian insignia was in the box.

Detectives Alan Issac and James Elliott responded to the report of a residential burglary at the Comacho home. Sandra Comacho, Mr. Comacho's 12 year old daughter, acted as interpreter for her father who could not speak English. After speaking with neighbors of the Comacho's, the detectives compiled a list of people who were near the area at the time of the burglary. The list included the nicknames Froggy, Cuban and Zebra which Sandra told the police were the nicknames for Sergio Crespo, Juan Prieto and defendant, respectively.

On November 2, 1983, a young man told Comacho that he knew who had committed the burglary, but that he was afraid to go to the police with that information. Comacho and the young man went to the office of Comacho's attorney, William Martinez. Present at the office were Comacho and his daughter Sandra, Mr. Martinez, Detectives Elliott and Issac, another attorney named H. Wycliffe Martin and the young man, whose name was Guillermo and his nickname, Moranga. Moranga told the people present that on the date of the burglary he saw defendant, Prieto and Crespo enter Comacho's home and leave with a box.

On November 3, 1983, the detectives arrested defendant in an alley at 5300 N. Ashland after Sandra Comacho had alerted the police that he was there. The detectives gave defendant Miranda warnings which he indicated he understood. They then took him to the police station where he was given a second set of Miranda warnings. Defendant thereafter told the police that he, Prieto and Crespo entered Comacho's home because they wanted his safety box. Defendant claimed that while he waited in Comacho's kitchen, the other two men obtained the box from the bedroom. They then left the home. Defendant gave the police Prieto's address and they subsequently arrested him. Prieto thereafter gave the police Crespo's address and they also arrested him.

The following day, on November 4, 1983, Assistant State's Attorney Snow met with defendant and gave him Miranda warnings which he indicated he understood. Defendant made a written, signed statement admitting that he entered Comacho's apartment, but that he became afraid and went outside. Thereafter, Detective Elliott spoke to defendant who said that he had heard that there was $40,000 worth of property in Comacho's home, so he and his friends entered the home by using a screwdriver, took the safety box, left and split the proceeds.

Subsequently, defendant admitted to Detective Elliott and assistant State's attorney Snow that he knew the box was in Comacho's home, but he needed help to carry it out.

Approximately five weeks before trial, Comacho saw a co-worker, Juan Rojas, wearing a distinctive Columbian ring which apparently was the ring that had been in Comacho's safety box. Rojas told Comacho that he had purchased the ring from Alepeo Estruch, who had bought it from defendant.

Prior to trial, the court denied defendant's motions to quash arrest and to suppress statements, finding that there was probable cause to arrest defendant and that his statements were voluntary.

Defendant first contends that he was denied due process by the State's failure to disclose the existence of an informant. He argues that his sixth amendment right of confrontation was violated because the informant did not testify and he was thus denied his right to cross-examine the informant. We disagree.

During discovery the State must reveal to a defendant only those witnesses which may be called at trial. (107 Ill.2d R. 412(a)(i).) Moreover, disclosure of an informant's identity is not required where it is a prosecution secret and a failure to disclose it will not infringe the constitutional rights of the accused. (107 Ill.2d R. 412(j)(ii).) The purpose of this informer's privilege, under which the State may withhold the identity of informants who furnish the police with information about crimes, is to encourage citizens to communicate their knowledge of crimes to the police. Roviaro v. United States (1957), 353 U.S. 53, 59-60, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644-45.

In determining whether a defendant's constitutional rights have been violated by nondisclosure of an informant's identity, a court must decide whether the testimony of the informant is necessary to show the innocence of the accused as opposed to showing merely that probable cause existed for arresting the defendant. (McCray v. Illinois (1967), 386 U.S. 300, 305, 87 S.Ct. 1056, 1059, 18 L.Ed.2d 62, 67; People v. Lewis (1973), 12 Ill.App.3d 762, 764, 301 N.E.2d 469, aff'd (1974), 57 Ill.2d 232, 311 N.E.2d 685.) In order to force disclosure of an informant's identity, a defendant must demonstrate to the trial court that the defendant's theory of defense requires the State to reveal the informant's identity. The court must then balance the public interest in encouraging informants to come forward against a defendant's right to prepare his defense. Roviaro v. United States (1957), 353 U.S. 53, 61-62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639, 645-46.

In the case at bar, the informer's privilege applied because the informant, Moranga, was a frightened citizen with information about a crime. Moranga did not testify at trial, and the State never intended on calling him to testify. The information he gave to the police, and which was adduced at trial through Comacho's testimony, was used only to show the jury that the police had probable cause to arrest defendant. Moreover, Moranga's information would not have shown defendant's innocence. Consequently, defendant's constitutional rights were not violated.

Defendant next contends that he received an excessive 10 year sentence which was inconsistent and disparate with his co-conspirator's 4 year sentence. We disagree.

In sentencing a defendant, it is proper for a court to consider, among other things, the defendant's credibility, demeanor, general moral character, mentality, social environment, habits and age. (People v. Ward (1986), 113 Ill.2d 516, 526, 101 Ill.Dec. 834, 499 N.E.2d 422, cert. denied (1987), 479 U.S. 1096, 107 S.Ct. 1314, 94 L.Ed.2d 168.) In addition, the court may consider a defendant's lack of remorse, the court's perception that the defendant committed perjury, and a defendant's failure to show a penitent spirit. (113 Ill.2d 516, 527-29, 101 Ill.Dec. 834, 499 N.E.2d 422.) The trial court's sentencing decision will not be disturbed on review absent an abuse of discretion. People v. Cabrera (1987), 116 Ill.2d 474, 494, 108 Ill.Dec. 397, 508 N.E.2d 708, citing People v. Perruquet (1977), 68 Ill.2d 149, 154, 11 Ill.Dec. 274, 368 N.E.2d 882.

In the case at bar, the trial court did not abuse its discretion in sentencing defendant. First, the 10 year sentence falls within the statutory range of 4-15 years. (Ill.Rev.Stat.1985, ch. 38, par. 1005-8-1(a)(4).) In addition, the court determined that defendant showed no remorse and had committed perjury at the hearing on the motion to suppress where he claimed the police beat him while he was in custody and denied admitting any involvement in the burglary. The court also considered defendant's potential to be a useful citizen, his lack of penitent spirit, and his prior criminal history. Furthermore, the mere discrepancy in sentences between the co-defendants does not warrant a reduction in defendant's sentence. (People v. Thompson (1967), 36 Ill.2d 478, 482, 224 N.E.2d 264, cert. denied (1967), 389 U.S. 870, 88 S.Ct. 155, 19 L.Ed.2d 151.) Finally, it was proper for the trial court to grant the co-defendant, who pleaded guilty, leniency and sentence him to the minimum of 4 years. (See People v. Sivels (1975), 60 Ill.2d 102, 104-06, 324 N.E.2d 422.) In any event, defendant has not provided this court with a record which would allow us to make comparisons between the sentences as we do not have a transcript nor a presentence report pertaining to the co-defendant. See People v. Jaffe (1978), 64 Ill.App.3d 831, 837, 21 Ill.Dec. 571, 381 N.E.2d 1018.

Next, defendant contends that the following remarks by the trial judge during voir dire deprived him of a fair and impartial trial:

"And to the left of Mr. Decker is the reason that we are all joined here today. It's the sine qua...