People v. Torres

• Decision Date: 18 February 1981
• Docket Number: 80-38,Nos. 79-812,s. 79-812
• Citation: 417 N.E.2d 728,49 Ill.Dec. 38,93 Ill.App.3d 718
• Parties: , 49 Ill.Dec. 38 PEOPLE of the State of Illinois, Appellee v. Frank TORRES, Appellant.
• Court: United States Appellate Court of Illinois

Page 728

417 N.E.2d 728

93 Ill.App.3d 718, 49 Ill.Dec. 38

PEOPLE of the State of Illinois, Appellee v. Frank TORRES, Appellant.

Nos. 79-812, 80-38.

Appellate Court of Illinois, Second District.

Feb. 18, 1981.

Lyle B. Haskin, Beermann, Swerdlove, Woloshin & Barezky, Howard A. London, Miles N. Beermann, Lyle B. Haskin, Chicago, for appellant.

J. Michael Fitzsimmons, State's Atty., Robert J. Anderson, Robert L. Thompson, Asst. State's Attys., Wheaton, for appellee.

LINDBERG, Justice.

Defendant, Frank Torres, was found guilty by a jury in DuPage County of indecent liberties with a child (Ill.Rev.Stat. 1977, ch. 38, par. 11-4) and of attempted indecent liberties (Ill.Rev.Stat. 1977, ch. 38, par. 8-4) arising out of separate acts. Concurrent sentences of six years for the substantive offense and three years for the inchoate offense were entered and defendant appeals. The state cross-appeals the trial court's dismissal of pending counts of the indictment.

Defendant, Frank Torres, was arrested on March 1, 1979, on the basis of complaints which alleged that defendant had committed the offenses of indecent liberties against two boys. When the defendant was taken into custody, he asked what the charges were and was told by the arresting officers that that would be discussed later. After receiving his constitutional rights, defendant made some damaging admissions. The police then informed him of the complaints outstanding. A preliminary hearing was set for March 9, 1979, but an indictment which contained 27 counts and alleged that defendant took indecent liberties with 10 boys was returned against defendant on March 8, and no preliminary hearing was held. Another indictment was filed on March 29, 1979, charging defendant with indecent liberties against 2 more boys.

Defendant filed a motion to dismiss the indictments on the ground that no preliminary hearing was held. The motion was denied on April 20, 1979. The trial court severed the indictments and separate trials were ordered as to each alleged victim. The conviction which defendant now appeals was based upon an alleged act of indecent liberties and an attempt committed against D.C. on another occasion. The trial court denied as untimely a motion made for the first time at trial to suppress defendant's damaging admissions. Defendant also made a motion in limine to prevent the state from introducing evidence of acts of indecent liberties with other boys. The court reversed ruling on the motion but later denied it.

At trial, the state presented, among others, the complaining witness D.C., the arresting officers, and two other victims, J.R. (who also testified to being present though not an eye-witness on one of the occasions in which D.C. was allegedly molested) and D.E. The jury returned verdicts of guilty on both the charges of indecent liberties and attempt. At the sentencing hearing the state introduced the testimony of 6 boys who described lewd acts by defendant which were the subject of pending indictments. Concurrent sentences of six years for indecent liberties and 3 years for attempt were entered and the trial court dismissed all other indictments. Defendant appeals the denial of his motion to dismiss and to exclude evidence. Defendant also questions the sufficiency of the evidence and the sentences imposed. The state cross-appeals the dismissal of the pending indictments.

I.

Defendant asks this court to hold that article 1, section 7 of the 1970 Constitution was violated by the failure of the state to provide him a preliminary hearing though a grand jury indictment was returned on March 8, 1979, one week after he was charged by complaint. Although his argument finds some support among the commentators (see, e. g., Comment, The Illinois Grand Jury Indictment: A Denial of Due Process, 12 J.Mar.J.Prac. & Proc. 319, 330 (1979)), it contravenes existing case law. A defendant is not entitled to a preliminary hearing as such but rather to a probable cause determination. (People v. Arbogast (1976), 41 Ill.App.3d 187, 191, 353 N.E.2d 434, 438.) The probable cause determination can be by indictment by grand jury as well as by a judge in a preliminary hearing. (People v. Eisele (1979), 77 Ill.App.3d 766, 768, 33 Ill.Dec. 273, 396 N.E.2d 662, 664.) Once a defendant is properly indicted, there is no necessity for a preliminary hearing to establish probable cause. (People v. Franklin (1979), 80 Ill.App.3d 128, 131, 35 Ill.Dec. 121, 398 N.E.2d 1071, 1073.) For these reasons, we affirm the trial court's denial of defendant's motion to dismiss the indictment.

II.

Defendant made a motion in limine during the trial to prevent the admission into evidence of statements made by him during a post-arrest interrogation. The motion was denied. He argues that the alleged waiver of his Miranda rights was invalid because he had not been informed of the nature of the charges against him at the time he made the statements. The state contends that defendant waived his objection by failing to comply with section 114-11 of the Code of Criminal Procedure (Ill.Rev.Stat. 1979, ch. 38, par. 114-11(g)), which requires that a motion to suppress a confession be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.

The statements were recorded in a police report which was tendered to defendant before trial as part of discovery. But defendant argues that the wording of the report was ambiguous and therefore defense counsel was not aware of grounds prior to trial upon which he could base a motion to suppress. The police report stated:

"R/I (the investigating officer) asked Mr. Torres if he recalled having taken J.R. to a football practice with D.C., and then allowing D.C. to play his electronic football game.

Mr. Torres said that he recalled the incident and that he had been wrestling in the van, and that during the wrestling he may have touched the area of D.'s penis.

Then Mr. Torres said that his daughter was in and out of the van, and that he also drove J.R.'s sister and his son to the same practice.

R/I then explained the allegations made by D.C. Mr. Torres then said the wrestling during the wrestling, there is a chance that those things may have happened."

Defense counsel claims that the statement "R/I then explained the allegations made by D.C." was insufficient to apprise him of the fact that the police had theretofore refused to inform the defendant of the nature of the charges against him.

Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, held that a defendant objecting to the admissibility of his confession was entitled to a hearing. Jackson struck down a New York statute which left the issue of voluntariness of a confession to the jury. People v. Placek (1975), 25 Ill.App.3d 945, 323 N.E.2d 410, held that section 114-11 conforms to the due process requirements set forth in Jackson. Therefore the mandate of section 114-11(g) that the motion be made before trial must be obeyed unless fundamental fairness requires otherwise, such as where the defense did not have adequate notice of the grounds for such a motion. (Cf. People v. Foster (1979), 76 Ill.2d 365, 382, 29 Ill.Dec. 449, 392 N.E.2d 6, 13 (affirmed denial of motion to suppress the fruits of an illegal search made during trial).) People v. Young (1978), 60 Ill.App.3d 49, 17 Ill.Dec. 593, 376 N.E.2d 712, found that either the defendant or her counsel must have been aware of the grounds for a motion to suppress evidence seized at 9:45 p. m. pursuant to a warrant which noted that it had been issued at 9:50 p. m. on the same date. Here, as in Young, the defendant or his counsel must have been aware of possible grounds for a motion to suppress by way of even the most superficial investigation of the facts of the case. Additionally, the police report should have alerted defendant's counsel if his own consultations with his client did not. Since defendant failed to comply with the requirements of section 114-11(g), we find that the trial court was correct in denying the motion as untimely.

III.

The defendant contends that the trial court erred in admitting the testimony of two boys other than the complaining witness that defendant had taken indecent liberties with them. The state's position is that prior acts with other children is admissible because the defendant essentially admitted the requisite physical contact with the complaining witness but placed an innocent construction on the contact in his post-arrest statement to police. That statement was introduced as part of the state's case in chief and the state argues that the defendant's innocent construction of his acts "distinctly put in issue" his intent during the contact.

During interrogation by the police, defendant stated "that during (a wrestling match with the victim) he may have touched the area of D.C.'s penis."

"As a general rule, evidence of crimes other than those for which the defendant is on trial is inadmissible unless the evidence is relevant to establish the defendant's intent, motive, identity, absence of mistake, or modus operandi. (People v. Romero (1977), 66 Ill.2d 325, 5 Ill.Dec. 817, 362 N.E.2d 288.) In addition, on appeal, reviewing courts will sustain the trial court's determination as to the proper balance between the probative value of evidence of other crimes weighed against its prejudicial effect, unless the trial court has abused its sound judicial discretion." People v. Remsen (1978), 60 Ill.App.3d 266, 270, 17 Ill.Dec. 580, 376 N.E.2d 726, 729.

People v. Rogers (1927), 324 Ill. 224, 233, 154 N.E. 909, 912, is frequently cited. That case held:

"Proof of separate and distinct acts of indecent liberties with other children at other times and places would not tend to show guilty knowledge or intent in the act charged. Such was shown by the act itself. It was not necessary therefore, to prove similar offenses with other children to show guilty...