People v. Velez

• Decision Date: 04 February 2009
• Docket Number: No. 1-06-0912.,1-06-0912.
• Citation: 903 N.E.2d 43
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor VELEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

903 N.E.2d 43

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor VELEZ, Defendant-Appellant.

No. 1-06-0912.

Appellate Court of Illinois, First District, Third Division.

February 4, 2009.

Steven A. Greenberg, Chicago, IL, for Defendant-Appellant.

Richard A. Devine, State's Attorney, Cook County, James E. Fitzgerald, Michelle Katz, Matthew Connors, Chicago, IL, for Plaintiff-Appellee.

Justice MURPHY delivered the opinion of the court:

Following a jury trial, defendant, Victor Velez, was convicted of first degree murder and sentenced to 45 years' imprisonment. On appeal, defendant contends that: (1) his counsel was ineffective for withdrawing a motion to suppress his statement and for failing to file a motion to quash his illegal arrest; (2) he was denied his right to a fair trial when the State impermissibly introduced testimony, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), regarding his refusal to speak to the police after invoking his right to counsel; (3) the trial court erred in allowing admission of gang-related evidence; (4) the cumulative errors deprived him of his right to a fair trial; (5) the evidence was insufficient to prove him guilty beyond a reasonable doubt on a theory of accountability; and (6) his sentence was excessive.

The facts adduced at trial demonstrated that, on December 29, 2003, defendant accompanied his armed codefendant, Jesus Vega,¹ to a bar in a "hot" neighborhood in order to retrieve money from the victim, Jose Soto. At some point in route, codefendant informed defendant that he intended to shoot the victim if the victim did not produce the money. Codefendant then provided defendant with a cellular telephone in case something went awry, instructing him to act as a lookout and to alert codefendant if the police arrived on the scene. When the victim subsequently appeared outside the bar's entrance, codefendant approached and shot him several times. Codefendant then fled the scene; however, defendant remained nearby until codefendant called him and confirmed that codefendant shot the victim.

Prior to trial, defense counsel filed a "Motion to Suppress Statements Made During Improper Interrogation," maintaining that the police violated defendant's fourth and fifth amendment rights. At the subsequent hearing, Detective John Day testified that, on January 9, 2004, he and his partner, Detective Thomas Kolman, were investigating the victim's murder when they learned that defendant had been brought to the police station. At approximately 8:30 p.m., Detectives Day and Kolman entered the unlocked interview room where defendant had been waiting for approximately 15 minutes. According to Detective Day, defendant was not under arrest at the time: he was not wearing any handcuffs; had not been photographed; and had not been fingerprinted. Prior to starting the interview, Detective Day read defendant his Miranda rights, which defendant immediately waived. The first interview lasted between an hour and an hour and a half, during which time, according to Detective Day, defendant implicated himself in the underlying crime. In relevant part, defendant admitted that he acted as a lookout while his fellow gang member, codefendant, shot and killed the victim, who was also a fellow gang member.

Detective Day further provided that, after obtaining the statement, he requested that defendant take a polygraph examination. Defendant agreed despite the fact that the polygraph examiner was not available until the following morning. As a result, defendant remained at the police station overnight. In the interim, Assistant State's Attorney (ASA) James Papa arrived to interview defendant. After again being advised of his Miranda rights, defendant agreed to speak to ASA Papa in the presence of Detective Day. The interview lasted approximately 45 minutes, the contents of which were not memorialized. The police then provided defendant with a cot in the interview room plus a beverage and a bag of potato chips. Throughout the time Detective Day spent with defendant on January 9, 2004, and the early morning hours of January 10, he did not recall defendant having requested an attorney or learning that an attorney called on defendant's behalf. When Detective Day concluded his shift and left the police station, defendant was not under arrest.

Detective Kolman testified at the hearing that he was back on duty during the afternoon of January 10, 2004. When he arrived at the police station, he learned that defendant had been placed under arrest at an unknown time and that defendant's attorney had arrived earlier in the day. Detective Kolman also learned that defendant had engaged his right to remain silent. Notwithstanding, at approximately 9:25 p.m., defendant knocked on the door of the interview room where he had remained and motioned to Detective Kolman. Detective Kolman subsequently opened the locked interview room door and asked defendant what he needed. Defendant responded that he wished to speak to him. Detective Kolman then asked defendant whether he had an attorney, and, if so, whether the attorney had advised defendant not to speak to the detectives. Defendant responded in the affirmative to both questions, thus Detective Kolman asked defendant whether he wished to speak to him despite those instructions. Defendant assented. As a result, Detective Kolman readvised defendant of his Miranda rights, which he waived. Following a conversation lasting approximately 15 minutes, defendant requested to speak to an ASA.

Thereafter, the parties agreed to continue the hearing to accommodate defendant's witnesses; however, on the next scheduled date, defense counsel advised the court that he wished to withdraw the motion. In response, the court asked whether defense counsel had discussed the decision with defendant, and defense counsel replied that he had done so "in much detail." The court then admonished defendant as follows:

"THE COURT: You understand, as I said, we've heard two witnesses on the motion and we're prepared to go forward with additional evidence, some evidence is here, but you're content with the decision, the advice of your attorney, to withdraw the motion at this time?

DEFENDANT: Yes, your Honor.

THE COURT: You understand that once it's withdrawn it's not going to be filed again and litigated again. Do you understand that?

DEFENDANT: Yes.

THE COURT: Nobody promised you anything to cause you to make that decision?

DEFENDANT: No.

THE COURT: Or threatened you?

DEFENDANT: No.

THE COURT: You're doing this of your on [sic] free will after consulting with your attorney; is that right?

DEFENDANT: Yes."

At trial,² defense counsel stated, in opening, that the court would provide the jury with an accountability instruction, which "will have in its context the need for specific intent, an item, an action, a forwarding motion." The State subsequently objected and the court advised defense counsel to refrain from argument during opening statements. Defense counsel continued by urging the jury to focus on the State's burden of proof and consider that defendant took no part in the victim's murder, noting that defendant "was not necessarily in the area" where it took place.

Edna Aguayo then testified that, at the time in question, she lived with her mother and brother approximately one block away from the intersection of Armitage and Karlov Avenues. Codefendant was her distant cousin and she had known defendant for some time because she was friends with his child's mother. Aguayo recalled that, on the night in question, codefendant and defendant arrived at her home requesting a dark, hooded sweatshirt, which her brother provided to codefendant. Approximately 15 minutes after the men left, Aguayo heard gunshots. As a result, Aguayo phoned her boyfriend. While speaking to him, she received another call, but could not recall from whom. Aguayo recalled being interviewed by Detective Vincent Viverito and his partner the day after the incident, but did not remember whether she told the detectives that the unidentified call was from defendant using codefendant's cellular phone. Aguayo, however, admitted that she identified defendant as the caller during her grand jury testimony.

On cross-examination, Aguayo further admitted that, prior to the night in question, she had never spoken to defendant on the telephone; however, Aguayo averred that she could recognize his voice at the time because she had spoken to him in person on many occasions when she was with his child's mother.

Detective Viverito testified that, on December 30, 2004, Aguayo arrived at the police station and was shown a photograph of defendant. According to Detective Viverito, Aguayo identified defendant as the individual with her cousin on the night in question. As a result of Aguayo's identification and his prior investigation, Detective Viverito stated that defendant was then considered a "person of interest."

Rosalee Soto, the victim's wife, testified that her husband and his cousin, Angel Navarro, were at a bar near the intersection of Armitage and Karlov Avenues on the night in question. Around 10:30 p.m., Rosalee drove to the bar to bring something to the victim and then left to retrieve money for him from an automated teller machine. She returned at approximately 11 p.m.; however, Rosalee remained in her car while the victim exited the bar to obtain the money. Following a brief conversation, Rosalee watched her husband walk back toward the bar. When he reached the establishment's door, Rosalee heard a gunshot and saw that codefendant shot her husband from approximately four feet away. Rosalee's husband attempted to run to safety; however, codefendant followed him in the direction of Rosalee's car then stopped and fired his handgun four or five more times at him. Rosalee testified that, at that time, she feared that codefendant would attempt to shoot her as well; therefore, she...