Petition for Writ of Certiorari — Pablo Colon, Petitioner v. Illinois

No. _________

_____________________________________

In The

Supreme Court of the United States

_____________________ ∆ _____________________

PABLO COLON,

`

v.

Petitioner,

THE STATE OF ILLINOIS,

Respondent.

_____________________ ∆ _____________________

Petition for a Writ of Certiorari to the

Appellate Court of Illinois,

First District, Fourth Division

_____________________ ∆ _____________________

PETITION FOR WRIT OF CERTIORARI

_____________________ ∆ _____________________

*William P. Wolf

Stephen L. Richards

53 West Jackson

53 West Jackson

Suite 1515

Suite 756

Chicago, IL 60604

Chicago IL 60604

312-888-1124

773-817-6927

billwolf@wolfcriminallaw.com

*Counsel of record

Attorneys for the Petitioner Pablo Colon

i

QUESTION PRESENTED FOR REVIEW:

1. Whether

the

Fifth

Amendment’s

Miranda guarantee requires police to

inform a custodial suspect of his right to

stop questioning at any time?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED…….....…….…….i

TABLE OF CONTENTS……………..............ii

TABLE OF

AUTHORITIES…………..…………………….iv

OPINION BELOW………….…………….…...1

JURISDICTION……………..…………….......1

STATUTES CONSTITUTIONAL

PROVISIONS INVOLVED…...…….………..1

STATEMENT OF THE CASE……………....2

REASONS FOR GRANTING THE

PETITION………………………………….…...4

I.

THIS COURT SHOULD GRANT THE

PETITION TO DETERMINE WHETHER

THE FIFTH AMENDMENT’S MIRANDA

GUARANTEE REQUIRES POLICE TO

INFORM A CUSTODIAL SUSPECT OF HIS

iii

RIGHT TO STOP QUESTIONING AT ANY

TIME

……………………………………….……………4

CONCLUSION………………………………..10

APPENDIX

APPENDIX A

September 26, 2018 (Denial of Petition for

Leave to Appeal by the Supreme Court of

Illinois)…………………………………App.1

APPENDIX B

June 28, 2018 (Opinion of the Appellate

Court of Illinois, First District, Fourth

Division)..…….......................….........App.2

APPENDIX C

June 14, 2014 (Trial Court

Ruling)………………………………...App.52

iv

TABLE OF AUTHORITIES

Supreme Court Cases

Duckworth v. Eagan, 492 U.S. 195 (1989)….5

Florida v. Powell, 559 U.S. 50

(2010)…………………………….…………...5, 6,

Miranda v. Arizona, 384 U.S. 436

(1966)……………………………………...passim

Other Federal Cases

United States v. Alba, 732 F. Supp. 306

(D. Conn. 1990)………………………………….7

United States v. Ellis, 125 Fed. Appx. 691,

699 (6th Cir. 2005)……………………………..7

United States v. Davis, 459 F.2d 167

(6th Cir.1972)……………………………………7

United States v. DiGiacoma, 579 F.2d 1211

(10th Cir.1978)…………………………………..7

v

Gandia v. Hokel, 648 F.Supp. 1425

(E.D.N.Y.1986), aff'd, 819 F.2d 1129 (2d

Cir.1987), cert. denied,

484 U.S. 843 (1987)……………………………..7

United States ex rel. Feliciano v. Lane, 548

F.Supp. 79 (N.D.Ill.1982), aff'd, 714 F.2d 148

(7th Cir.1983), cert. denied, 464 U.S. 1010

(1983)……………………………………………..7

Mock v. Rose, 472 F.2d 619 (6th Cir.1972),

cert. denied, 411 U.S. 971 (1973)……………..7

State Cases

Bell v. State, 443 So.2d 16 (Miss.1983)…...…8

State v. Brings Plenty, 459 N.W.2d 390

(S.D. 1990)………………………………………..8

Brown v. State, 565 So.2d 304 (Fla.1990),

cert. denied, 498 U.S. 992 (1990)……………..8

State v. Chevalier, 458 So.2d 507

(La.App. 4 Cir.1984)…………………………….8

State v. Carlton, 83 N.M. 644,

495 P.2d 1091, (1972)…………………………..8

vi

State v. Cobbs, 164 Conn. 402,

cert. denied, 414 U.S. 861 (1973)……………..8

People v. Colon, 2018 IL App (1st)

160120, appeal denied, 108 N.E.3d 883

(Ill. 2018)……………………………………1, 4, 5

Crafton v. State, 545 S.W.2d 437

(Tenn.App.1976)…………………………………9

State v. Fecteau, 132 N.H. 646,

568 A.2d 1187 (1990)……...……………………8

Gray v. State, 441 A.2d 209

(Del.Supr.1982)……………………………...…..8

Green v. State, 45 Ala.App. 549,

233 So.2d 243 (1970)……………………………8

State v. Harbaugh, 132 Vt. 569,

326 A.2d 821 (1974)…………………………….9

State v. Harper, 465 S.W.2d 547

(Mo.1971)…………………………………………8

People v. Hooper, 50 Mich.App. 186, 212

N.W.2d 786 (1973)………………………………8

vii

Katzensky v. State, 228 Ga. 6,

183 S.E.2d 749 (1971)…………..………………8

Commonwealth v. Lewis, 374 Mass. 203,

371 N.E.2d 775 (1978)………………………….8

State v. McGhee, 280 N.W.2d 43

(Iowa 1979), cert. denied, 444 U.S. 1039

(1980)………………………………………….....8

People v. Mathews, 324 Mich. App. 416

(2018)……………………………………………..8

People v. Merrero, 121 Ill.App.3d 716,

77 Ill. Dec. 62, 459 N.E.2d 1158 (1984)……..8

State v. Mitchell, 167 Wis. 2d 672, 482

N.W.2d 364 (1992)………………………………9

State v. Olson, 83 Or.App. 516, 731 P.2d

1072, 1073 (1987)……………………………….8

People in Interest of M.R.J., 633 P.2d 474

(Colo.1981)……………………………………….8

Ripley v. State, 898 So. 2d 1078

(Fla. Dist. Ct. App. 2005),

receded from by Morris v. State,

viii

212 So. 3d 383 (Fla. Dist. Ct. App. 2017),

review denied, SC17-734,

2017 WL 2590709

(Fla. June 15, 2017)…………………………….9

Shilling v. State, 86 Wis.2d 69,

271 N.W.2d 631 (1978), viewed as dicta

and withdrawn by State v. Mitchell,

167 Wis. 2d 672, 482 N.W.2d 364 (1992)…..10

State v. Sherwood, 139 N.J.Super. 201,

353 A.2d 137 (1976)…………………………….8

Tiller v. State, 541 N.E.2d 885

(Ind.1989)………………………….………….…8

Rules

U.S. Sup. Ct. Rule

10(c)……………………………………….5

1

OPINION BELOW

The opinion of the Appellate Court of

Illinois, First District, Fourth Division

affirming Pablo Colon’s conviction and

sentences is People v. Colon, 2018 IL App (1st)

160120, appeal denied, 108 N.E.3d 883 (Ill.

2018)

JURISDICTION

The Appellate Court of Illinois, First

District, Fourth Division entered its opinion

on June 28, 2018 (App.2). The Supreme Court

of Illinois denied the petition for leave to

appeal on September 26, 2018 (App.1). This

court has jurisdiction under 28 U.S.C. Sec.

1257.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

United States Constitution, amend. XIV:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

2

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, with-out due

process of law; nor deny to any per-son within

its jurisdiction the equal protection of the

laws.

United States Constitution, amend. V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

STATEMENT OF THE CASE

After a jury trial in the circuit court of Cook

County, Illinois, petitioner Pablo Colon was

convicted of first degree murder (R. Vol. VII,

3

QQ-176), and sentenced to 40 years

imprisonment. (R. Vol. VIII, SS-55).

The conviction stemmed from an incident

during which Alan Oliva and Mario Gallegos

were attacked by a number of assailants (R.

Vol. IV, MM-114-49) and Oliva was stabbed to

death (R. Vol. VI, PP-79) apparently because

he was mistakenly thought to be a member of

a rival gang. (R. Vol. VI, PP-161-63).

A key piece of evidence against Pablo Colon

consisted of his recorded custodial statement.

In the statement Colon admitted that he was

the first person to approach the two men, that

he was the one who demanded to know their

gang affiliation, and that he kicked Oliva in

the head after Oliva was down on the ground.

(R. Vol. VI, PP-18-23).

Prior to trial. Pablo Colon filed a motion to

suppress statements, alleging that the

Miranda warnings were insufficient because

they failed to include an admonition that he

could stop questioning at any time. (R. C Vol.

I, 137). At the hearing, no witnesses testified,

but a disk and transcript of Colon’s

interrogation were tendered to the court. (R.

Vol. I, S-8). The disk was later stipulated to as

true and accurate by both parties. (R. Vol. I, S9). After argument, the court ruled that

despite the lack of an admonition that Colon

4

could stop the questioning at any time, the

Miranda warnings given to the Colon were

sufficient. He denied the motion. (App.52) (R.

Vol. I, S-15).

On appeal, the Illinois appellate court

agreed that the warnings were sufficient and

rejected the federal constitutional claim.

People v. Colon, 2018 IL App (1st) 160120, ¶¶

56-62, appeal denied, 108 N.E.3d 883 (Ill.

2018).

REASONS FOR GRANTING THE

PETITION

I.

THIS COURT SHOULD GRANT THE

PETITION TO DETERMINE WHETHER

THE FIFTH AMENDMENT’S MIRANDA

GUARANTEE REQUIRES POLICE TO

INFORM A CUSTODIAL SUSPECT OF HIS

RIGHT TO STOP QUESTIONING AT ANY

TIME

This court should grant the petition for

certiorari to decide whether the fifth

amendment’s Miranda guarantee requires

police to inform a custodial suspect of his right

to stop or to “cut-off” questioning at any time

during the interrogation. The Illinois court of

5

appeals, below, held, unequivocally, that there

was no such requirement. People v. Colon,

2018 IL App (1st) 160120, ¶¶ 56-62, appeal

denied, 108 N.E.3d 883 (Ill. 2018). This is an

“important question of federal law that has not

been, but should be, settled by this Court.”

United States Supreme Court Rule 10 (c).

In particular, this is a question which has

been left open for resolution by this Court’s

decision in Florida v. Powell, 559 U.S. 50

(2010). In order to understand why this is true,

it is necessary to review the history of this

Court’s decisions regarding the form and

content of the warnings prescribed by Miranda

v. Arizona, 384 U.S. 436 (1966).

To give force to the Constitution's protection

against compelled self-incrimination, the

Court established in Miranda “certain

procedural safeguards that require police to

advise criminal suspects of their rights under

the Fifth and Fourteenth Amendments before

commencing

custodial

interrogation.”

Duckworth v. Eagan, 492 U.S. 195, 201 (1989).

Intent on “giv[ing] concrete constitutional

guidelines for law enforcement agencies and

courts to follow,” 384 U.S. at 441–442,

Miranda prescribed the following four nowfamiliar warnings:

6

“[A suspect] must be warned prior to any

questioning [1] that he has the right to remain

silent, [2] that anything he says can be used

against him in a court of law, [3] that he has

the right to the presence of an attorney, and

[4] that if he cannot afford an attorney one will

be appointed for him prior to any questioning

if he so desires.” 384 U.S. at 479.

In Powell, the Florida Supreme Court held

that Miranda warnings which informed the

suspect of his right to consult with a lawyer

before answering law enforcement officers’

questions, but did not did not specify that he

had a right to have a lawyer present at any

time during interrogation did not satisfy

Miranda. State v. Powell, 998 So. 2d 531, 532

(2008).

On petition for certiorari, this Court held

that the warning given in Powell was

sufficient, but only because Powell was told

not only that he had a right to speak to a

lawyer during questioning, but also that he

had the right to use any of the enumerated

rights, including his right to counsel, “at any

time” he wanted during the interview. Powell,

559 U.S. at 62.

Thus, it is settled law that the substance of

the third enumerated Miranda advisement,

that of right to counsel, must, in some form,

7

tell a suspect that he has the right to counsel

during questioning and may invoke that right

at any time. However, this Court has never

addressed the question as to whether the same

principle applies to the first enumerated

Miranda advisement, the right to remain

silent.

In the absence of guidance from this Court,

many lower courts, including courts in Illinois,

have held that it is not necessary to inform

suspects that they can invoke their right to

silence at any time during interrogation. See,

e.g., United States v. Alba, 732 F. Supp. 306,

310 (D. Conn. 1990); United States v. Ellis,

125 Fed. Appx. 691, 699 (6th Cir. 2005);

United States v. DiGiacoma, 579 F.2d 1211,

1214 (10th Cir.1978); United States v. Davis,

459 F.2d 167 (6th Cir.1972); Gandia v. Hokel,

648 F.Supp. 1425, 1432 (E.D.N.Y.1986), aff'd,

819 F.2d 1129 (2d Cir.1987), cert. denied, 484

U.S. 843 (1987); United States ex rel. Feliciano

v. Lane, 548 F.Supp. 79, 81 (N.D.Ill.1982),

aff'd, 714 F.2d 148 (7th Cir.1983), cert. denied,

464 U.S. 1010 (1983); Mock v. Rose, 472 F.2d

619, 622 (6th Cir.1972), cert. denied, 411 U.S.

971 (1973); Green v. State, 45 Ala.App. 549,

551–52, 233 So.2d 243, 246 (1970); People in

Interest of M.R.J., 633 P.2d 474, 476

(Colo.1981); State v. Cobbs, 164 Conn. 402,

8

416–19, 324, 244, cert. denied,414 U.S. 861

(1973); Gray v. State, 441 A.2d 209, 217

(Del.Supr.1982); Brown v. State, 565 So.2d

304, 306 (Fla.1990), cert. denied, 498 U.S. 992

(1990); Katzensky v. State, 228 Ga. 6, 8, 183

S.E.2d 749, 751 (1971); Tiller v. State, 541

N.E.2d 885, 893 (Ind.1989); People v. Merrero,

121 Ill.App.3d 716, 77 Ill.Dec. 62, 67, 459

N.E.2d 1158, 1163 (1984); State v. McGhee,

280 N.W.2d 436, 441–42 (Iowa 1979), cert.

denied, 444 U.S. 1039 (1980); State v.

Chevalier, 458 So.2d 507, 514 (La.App. 4

Cir.1984); Commonwealth v. Lewis, 374 Mass.

203, 371 N.E.2d 775, 777 (1978); People v.

Hooper, 50 Mich.App. 186, 195–96, 212

N.W.2d 786, 790 (1973); People v. Mathews,

324 Mich. App. 416 (2018); Bell v. State, 443

So.2d 16, 21 (Miss.1983); State v. Harper, 465

S.W.2d 547, 548–49 (Mo.1971); State v.

Fecteau, 132 N.H. 646, 568 A.2d 1187, 1188

(1990); State v. Sherwood, 139 N.J.Super. 201,

203–05, 353 A.2d 137, 139–40 (1976); State v.

Carlton, 83 N.M. 644, 654, 495 P.2d 1091, 1101

(1972); State v. Olson, 83 Or.App. 516, 731

P.2d 1072, 1073 (1987); Crafton v. State, 545

S.W.2d 437, 439 (Tenn.App.1976); State v.

Harbaugh, 132 Vt. 569, 577–78, 326 A.2d 821,

826 (1974); State v. Mitchell, 167 Wis. 2d 672,

694–95, 482 N.W.2d 364, 373 (1992).

9

A distinct minority of courts have disagreed.

See, e.g., State v. Brings Plenty, 459 N.W.2d

390, 395–96 (S.D. 1990) (where suspect “was

not advised that he could terminate the

questioning at any point that he wished ***

there was a deficiency in the substance of the

Miranda warning given, as well as the form”);

Ripley v. State, 898 So. 2d 1078, 1080–81 (Fla.

Dist. Ct. App. 2005), receded from by Morris

v. State, 212 So. 3d 383, 387 (Fla. Dist. Ct.

App. 2017), review denied, SC17-734, 2017 WL

2590709 (Fla. June 15, 2017) (warnings which

did not tell suspect of right to have counsel

present during questioning or of right to stop

interrogation at any time during questioning

were legally insufficient); Shilling v. State, 86

Wis.2d 69, 78, 271 N.W.2d 631 (1978) (where

even though defendant's initial Miranda

warning “was defective in that it did not advise

[defendant] of the right to stop the

questioning,” the defendant's statements were

admissible because defendant was given five

subsequent warnings and was sufficiently

warned at every crucial stage of the

interrogation), viewed as dicta and withdrawn

by State v. Mitchell, 167 Wis. 2d 672, 694–95,

482 N.W.2d 364, 373 (1992).

Even though a majority of courts have held

that there is no requirement that a suspect be

10

advised of his right to terminate questioning

at any time, this Court’s decision in Powell

strongly implies the opposite. In Powell, after

all, the suspect was advised that he could use

of any of his enumerated rights, including his

right to silence, “at any time.” It was this

additional warning which this Court held was

sufficient to advise the suspect that he could

invoke his right to counsel during

interrogation. And although the Powell court

had no occasion to reach the question of

whether the suspect was adequately warned of

his right to cut-off questioning by invoking his

right to silence, a duty to warn of such a right

is strongly implied by Powell.

Therefore, this Court should grant the

petition for writ of certiorari.

CONCLUSION

For the foregoing reasons, the petition for

writ of certiorari should be granted.

Respectfully submitted,

PABLO COLON

Dated: 12/24/2018

By:

s/_Stephen L. Richards

11

Stephen L. Richards

*William P. Wolf

53 West Jackson Suite 1515

Chicago, IL 60604

312-888-1124

billwolf@wolfcriminallaw.com

i

APPENDIX

APPENDIX A

September 26, 2018 (Denial of the Petition

for Leave to Appeal by the

Supreme Court of

Illinois)…………………………………App.1

APPENDIX B

June 28, 2018 (Opinion of the Appellate

Court of Illinois, First District, Fourth

Division)..…….......................….........App.2

APPENDIX C

June 14, 2014 (Trial Court

Ruling)………………………………...App.52

App. 1

APPENDIX A

IN THE SUPREME COURT OF ILLINOIS

________________

No. 123864

PEOPLE OF THE STATE OF ILLINOIS,

RESPONDENT

v.

PABLO COLON, PETITIONER

______________

[September 26, 2018]

______________

Leave to appeal, Appellate Court, First

District. 1-16-0120

Petition for Leave to Appeal Denied.

App. 2

APPENDIX B

IN THE APPELLATE COURT OF ILLINOIS,

FIRST DISTRICT, FOURTH DIVISION

________________

No. 1-16-0120

PEOPLE OF THE STATE OF ILLINOIS,

PLAINTIFF-APPELLEE

v.

PABLO COLON, DEFENDANTAPPELLANT

______________

[June 28, 2018]

______________

OPINION

JUSTICE GORDON delivered the judgment of

the court, with opinion.

¶ 1 Defendant Pablo Colon was convicted after

a jury trial of first degree murder and

sentenced to 40 years with the Illinois

Department of Corrections (IDOC).

¶ 2 On this appeal, defendant claims (1) that

the trial court erred by allowing, as a tacit

admission by defendant, the testimony of

App. 3

Wayne Kates recounting statements by Marco

Ramirez and Daniel Guerrero that were made

during a gang meeting at which defendant was

present and that described the murder; (2)

that the trial court erred by granting the

State's motion to admit proof of gang

membership and affiliation, including expert

testimony

about

gangs

and

gang

identification; (3) that the trial court erred by

overruling defendant's objection to the

testimony of Mario Gallegos, the only

eyewitness, who identified defendant as one of

two people in a lineup who “kind of look like

the people that were there the date it had

occurred,” on the grounds that the tentative

statement did not qualify as an identification

and was more prejudicial than probative; (4)

that the trial court erred by failing to grant

defendant's motion to suppress defendant's

statements to the police where the police did

not inform him that he had a right to stop

questioning at any time on the ground that the

Illinois right to counsel is broader than the

federal right and that suspects in Illinois

should be informed of their right to terminate

questioning at any time; (5) that defendant's

sentence of 40 years was excessive and should

be reduced to 20 years where defendant was

App. 4

20 years old at the time of the offense and a

minor participant; and (6) that defendant's

40–year sentence was disproportionate to the

30–year sentence received by codefendant

Gary Sams.

¶ 3 For the following reasons we affirm.

¶ 4 BACKGROUND

¶ 5 In the Analysis of each claim below, we

provide a detailed description of the evidence

relevant to resolve that particular claim.

¶ 6 In sum, the State's evidence at trial

established that on May 29, 2010, at midnight,

a group of men, who belonged to the same

gang, approached two men on a nearby street

because one of the two men was wearing a red

shirt, which was the color of a rival gang. One

of the two men, Mario Gallegos, was able to

escape, and he testified at trial as the State's

sole eyewitness. The other man, Alan Oliva,

who was wearing the red shirt, was beaten to

death. The State's evidence included a

videotaped confession by defendant describing

his role in the offense, in which he admitted

that he was the first person to approach the

two men, that he was the one who demanded

to know their gang affiliation, and that he

kicked the murder victim in the head after the

victim was down on the ground. The State's

App. 5

evidence also included testimony by fellow

gang member Kates, concerning statements

made by two of the attackers at a subsequent

gang meeting attended by defendant.

Defendant's statement to the police and

Kates's testimony varied from each other, in

that defendant stated to the police that there

were six to eight men and that they exited a

party to approach the murder victim and the

victim's companion, while Kates reported that

two of the attackers, Ramirez and Guerrero,

claimed that they exited a vehicle with

defendant and that they were the only three

men to approach the murder victim and that

the victim was alone.

¶ 7 After listening to all the evidence,

arguments and jury instructions, the jury

convicted defendant of first degree murder,

and the trial court sentenced him to 40 years

with IDOC. Defendant filed a timely notice of

appeal, and this appeal followed.

¶ 8 ANALYSIS

¶ 9 I. Kates's Testimony

¶ 10 Defendant claims that the trial court

erred by allowing the testimony of Kates,

which described statements made by fellow

gang members, Ramirez and Guerrero. The

statements by Ramirez and Guerrero were

App. 6

made during a gang meeting at which

defendant was also present. The statements

included Ramirez's statement that the three

men—Ramirez, Guerrero and defendant—

exited a vehicle together in order to approach

the victim and that “they just kept beating the

guy until he stopped moving and then at that

point, basically, they took off before the cops

would come.” Since defendant was present at

the gang meeting and did not object to

Ramirez's and Guerrero's statements, the trial

court admitted the statements as an

“admission by silence” by defendant. See Ill. R.

Evid. 801(d)(2) (eff. Oct. 15, 2015). Specifically,

the trial court ruled:

“Court feels it did qualify as an admission by

silence. The defendant was present during this

conversation. He was implicated, it would

have been something that you would expect

him to deny. Court will allow it to come in as

an exercise of its discretion. Motion in

limine denied.”

For the following reasons, we cannot find that

the trial court erred.

¶ 11 A. Standard of Review

¶ 12 The admission of evidence is generally

within the sound discretion of the trial court,

and we will not disturb a trial court's

App. 7

evidentiary rulings absent an abuse of

discretion. People v. Romanowski, 2016 IL

App (1st) 142360, ¶ 21, 406 Ill.Dec. 731, 61

N.E.3d 999 (citing People v. Morgan, 197 Ill.

2d 404, 455, 259 Ill.Dec. 405, 758 N.E.2d 813

(2001) ). An abuse of discretion occurs only

when the trial court's decision is arbitrary,

fanciful, or unreasonable to the degree that no

reasonable person would agree with it. People

v. Lerma, 2016 IL 118496, ¶ 23, 400 Ill.Dec.

20, 47 N.E.3d 985. However, to the extent that

admissibility of evidence requires the

interpretation of a rule and its intended scope,

our review is de novo. Romanowski, 2016 IL

App (1st) 142360, ¶ 21, 406 Ill.Dec. 731, 61

N.E.3d 999. De novo consideration means that

we perform the same analysis that the trial

court would perform. People v. Jones, 2018 IL

App (1st) 151307, ¶ 21, ––– Ill.Dec. ––––, –––

N.E.3d ––––.

¶ 13 On appeal, defendant claims that he

preserved this error for our review by objecting

both at trial and in a posttrial motion, and the

State does not argue otherwise. See People v.

Sebby, 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756,

89 N.E.3d 675 (“To preserve a purported error

for consideration by a reviewing court, a

defendant must object to the error at trial and

App. 8

raise the error in a posttrial motion.”). Since

the issue was preserved for our review, if there

was an error, the State would bear the burden

of proving that the error was harmless beyond

a reasonable doubt. Lerma, 2016 IL 118496, ¶

33, 400 Ill.Dec. 20, 47 N.E.3d 985. However,

for the reasons discussed below, we do not find

that an error occurred.

¶ 14 B. The Tacit Admission Rule

¶ 15 The statements at issue were admitted

pursuant to Illinois Rule of Evidence 801 (eff.

Oct. 15, 2015), which both defines hearsay and

specifies that certain statements are not

considered hearsay. The rule defines

“hearsay” as “a statement, other than one

made by the declarant while testifying at the

trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Ill. R. Evid.

801(c) (eff. Oct. 15, 2015). The rule then

specifies that certain statements are simply

“not hearsay.” Ill. R. Evid. 801(d) (eff. Oct. 15,

2015). Thus, these statements are not

exceptions to the rule against hearsay; rather,

they are simply not hearsay to begin with.

These statements include a “Statement by

Party–Opponent.” Ill. R. Evid. 801(d)(2) (eff.

Oct. 15, 2015). A statement by a party

opponent includes “a statement of which the

App. 9

party has manifested an adoption or belief in

its truth.” Ill. R. Evid. 801(d)(2)(B) (eff. Oct. 15,

2015).

¶ 16 Adopted statements include what the

case law calls a “tacit admission”1 or, as the

trial court described it, an “admission by

silence.”2 The “tacit admission rule” is well

established in our case law. See People v.

Donegan, 2012 IL App (1st) 102325, ¶ 67, 362

Ill.Dec. 831, 974 N.E.2d 352 (“the tacit

admission rule”); People v. Soto, 342 Ill. App.

3d 1005, 1013, 277 Ill.Dec. 604, 796 N.E.2d 690

(2003) (“the tacit-admission rule”); People v.

Campbell, 332 Ill. App. 3d 721, 734, 266

Ill.Dec. 41, 773 N.E.2d 776 (2002) (a statement

is admissible as a “tacit admission” “if

sufficient evidence supports a finding that, in

light of the totality of the circumstances, a

defendant remained silent when faced with an

incriminating statement, which, if untrue,

would normally call for a denial”); Goswami,

237 Ill. App. 3d at 535, 178 Ill.Dec. 497, 604

N.E.2d 1020 (discussing “the rule” concerning

“a tacit admission”); People v. Childrous, 196

Ill. App. 3d 38, 53, 142 Ill.Dec. 511, 552 N.E.2d

1252 (1990) (“When a statement is made in the

presence and hearing of an accused,

incriminating in character, and such a

App. 10

statement is not denied, contradicted or

objected to by him, both the statement and the

fact of his failure to deny it are admissible in a

criminal trial as evidence of his acquiescence

in its truth.”).

¶ 17 The tacit admission rule provides, “When

a statement that is incriminating in nature is

made in the presence and hearing of an

accused and such statement is not denied,

contradicted, or objected to by him, both the

statement and the fact of his failure to deny it

are admissible in a criminal trial as evidence

of the defendant's agreement in its

truth.” Soto, 342 Ill. App. 3d at 1013, 277

Ill.Dec. 604, 796 N.E.2d 690; Donegan, 2012

IL App (1st) 102325, ¶ 67, 362 Ill.Dec. 831, 974

N.E.2d 352; Campbell, 332 Ill. App. 3d at 734,

266 Ill.Dec. 41, 773 N.E.2d 776; Goswami, 237

Ill. App. 3d at 535–36, 178 Ill.Dec. 497, 604

N.E.2d 1020; Childrous, 196 Ill. App. 3d at 53,

142 Ill.Dec. 511, 552 N.E.2d 1252; Miller, 128

Ill. App. 3d at 583, 83 Ill.Dec. 802, 470 N.E.2d

1222. Our case law has uniformly found that

silence can constitute assent. Donegan, 2012

IL App (1st) 102325, ¶ 67, 362 Ill.Dec. 831, 974

N.E.2d 352; Soto, 342 Ill. App. 3d at 1013, 277

Ill.Dec. 604, 796 N.E.2d 690; Campbell, 332

Ill. App. 3d at 734, 266 Ill.Dec. 41, 773 N.E.2d

App. 11

776; Goswami, 237 Ill. App. 3d at 535–36, 178

Ill.Dec. 497, 604 N.E.2d 1020; Childrous, 196

Ill. App. 3d at 53, 142 Ill.Dec. 511, 552 N.E.2d

1252 (“assent may be manifested by

silence”); Miller, 128 Ill. App. 3d at 583, 83

Ill.Dec. 802, 470 N.E.2d 1222 (when “silence is

an admission of guilt, proof of a defendant's

silence is essential to the admission of the

declaration”).

¶ 18 The necessary elements for admissibility

under the tacit admission rule are (1) that the

statement incriminates the defendant such

that the natural reaction of an innocent person

would be to deny it, (2) that the defendant

heard the statement, and (3) that the

defendant had an opportunity to reply or

object and instead remained silent. Donegan,

2012 IL App (1st) 102325, ¶ 67, 362 Ill.Dec.

831, 974 N.E.2d 352; Soto, 342 Ill. App. 3d at

1013, 277 Ill.Dec. 604, 796 N.E.2d 690; see

also Campbell, 332 Ill. App. 3d at 734, 266

Ill.Dec. 41, 773 N.E.2d 776; Goswami, 237 Ill.

App. 3d at 535–36, 178 Ill.Dec. 497, 604

N.E.2d 1020; Childrous, 196 Ill. App. 3d at 53,

142 Ill.Dec. 511, 552 N.E.2d 1252; Miller, 128

Ill. App. 3d at 583, 83 Ill.Dec. 802, 470 N.E.2d

1222.

¶ 19 The statement need not be made “in an

App. 12

accusatory tone,” so long as it is “evident that

defendant was being painted or portrayed as a

participant in illegal and prohibited

activity.” Miller, 128 Ill. App. 3d at 584, 83

Ill.Dec. 802, 470 N.E.2d 1222; Soto, 342 Ill.

App. 3d at 1013, 277 Ill.Dec. 604, 796 N.E.2d

690 (quoting Miller for the same point).

In Goswami, 237 Ill. App. 3d at 535, 178

Ill.Dec. 497, 604 N.E.2d 1020, the appellate

court suggested the need for “an accusative

statement,” when it stated that “a defendant's

silence following an accusative statement may

be considered as a tacit admission.” While the

statement must be “accusative” in that it

charges the defendant with participation in an

illegal activity, Miller and Soto establish that

the tone in which the statement was made

need not be accusative. Miller, 128 Ill. App. 3d

at 584, 83 Ill.Dec. 802, 470 N.E.2d 1222; Soto,

342 Ill. App. 3d at 1013, 277 Ill.Dec. 604, 796

N.E.2d 690.

¶ 20 C. Testimony at Issue

¶ 21 We describe here in detail the specific

testimony at issue.

¶ 22 Kates testified that, on August 21, 2010,

he went with his brother, Walter Mullenix, to

“a gang meeting” at Bernard Monreal's house.

The assistant state's attorney (ASA) asked

App. 13

who was at Monreal's house, and Kates

identified the people there as (1) himself, (2)

Kates's brother, (3) defendant, (4) Ramirez, (5)

Guerrero, and (6) Monreal. The topics

discussed at the meeting were “the

transferring of power from Bernard Monreal

to [Kates's] brother,” the lack of guns, and the

gang's lack of presence on the street. Kates

observed that “there wasn't enough people

hanging out, outside.” With respect to the lack

of presence, Kates asked “why there wasn't

anyone out there [?]” and Marco Ramirez

replied that “the area was hot.” At this point

in Kates's testimony, the ASA inquired again

who

was

there,

specifically

asking,

“During this conversation who was present

with you?” (Emphasis added.) Kates

answered, “It was me, my brother Walter,

Bernard Monreal, Daniel Guerrero, Marcos

Ramirez and [defendant].” Thus, there were

only 6 people at the meeting and all 6 were

present at this point in the conversation.

¶ 23 Kates testified that the meeting occurred

in Monreal's living room. The ASA asked, “how

close were you to each other during the time

you had this discussion?” Kates replied a

“couple [of] feet.” Kates testified that Ramirez

then explained why the area was hot. Ramirez

App. 14

stated that on May 29, 2010, he was driving in

a vehicle with defendant, Daniel Guerrero and

a man known as “Chucky” when they spotted

a man who looked “like a rival gang member

or a flake.” Ramirez stated that “they pulled

into the alley behind a restaurant called a

barbecue patio and at that point Marcos

Ramirez said that [Ramirez], Daniel Guerrero

and [defendant] exited the vehicle.” Ramirez

stated that they wanted to check if the man

had any gang tattoos or gang affiliation. When

Ramirez asked the man what gang he

belonged to, he responded that he did not

belong to a gang and then turned and tried to

run away.

¶ 24 Kates testified that Guerrero stated that

“he caught up to the guy and he hit him with

a baseball bat and he fell down.” Then Ramirez

stated that “he ran up to him and he started

stabbing him while he was on the ground.”

Ramirez stated that “he was trying to stab him

in the head.” Ramirez further stated that “they

just kept beating the guy until he stopped

moving and then at that point, basically, they

took off before the cops would come.”

¶ 25 Kates testified that Monreal, Guerrero,

Ramirez, Mullenix and defendant were all

members of the Satan Disciples gang that

App. 15

Kates also belonged to.

¶ 26 On cross, Kates testified that the only two

people who talked about the murder at the

meeting were Ramirez and Guerrero and that

defendant did not make any statements that

he stabbed anyone or wielded a baseball bat.

In addition, Kates testified that, during the

meeting, defendant never made any

statements admitting any activities on the

date of the murder. Kates testified that he

arrived at the meeting at 11 a.m. and he was

there an hour.

¶ 27 D. Elements of Tacit Admission Rule

¶ 28 The first requirement of the tacit

admission rule actually has two parts: that the

statement was incriminating and that the

natural reaction of an innocent person would

be to deny it. E.g. Donegan, 2012 IL App (1st)

102325, ¶ 67, 362 Ill.Dec. 831, 974 N.E.2d

352; Soto, 342 Ill. App. 3d at 1013, 277 Ill.Dec.

604, 796 N.E.2d 690. Ramirez's statement that

“they just kept beating the guy until he

stopped moving” implicated defendant in the

murder. (Emphasis added.) Ramirez stated

that defendant had exited the vehicle with

Ramirez and Guerrero; thus, all three of them

exited together as one unit to approach the

victim. The fact that they continued to move as

App. 16

one unit was evidenced by Ramirez's

subsequent statement that “they drove off

before the cops would come.” (Emphasis

added.) These statements of “they” included

defendant since defendant had arrived at the

scene in the same vehicle and exited it with

Ramirez and Guerrero. Ramirez's and

Guerrero's description of their own acts of

stabbing and beating were the initial acts in

one course of conduct that ended with their

“beating the guy until he stopped moving.”

Thus, Ramirez's and Guerrero's statements

implicated and incriminated defendant.

¶ 29 The natural reaction of an innocent

person would have been to deny it or, at least,

to deny his own involvement. E.g. Donegan,

2012 IL App (1st) 102325, ¶ 67, 362 Ill.Dec.

831, 974 N.E.2d 352; Soto, 342 Ill. App. 3d at

1013, 277 Ill.Dec. 604, 796 N.E.2d 690. At this

point in the meeting, Ramirez was trying to

explain to Kates why the area was so “hot”

with police that the gang could no longer

maintain a presence on the street. Kates,

according to his testimony, was the brother of

the person now taking over the “power” of the

gang. If defendant was not at fault for this

turn of events, one would expect him to protest

to the gang leadership—who were demanding

App. 17

an explanation—that he was not one of the

people who had beaten an innocent man to

death, thereby leading to the extreme police

presence on the street. However, defendant

remained silent, thereby indicating his assent

to Ramirez's and Guerrero's statements,

including Ramirez's statement that “they just

kept beating the guy until he stopped moving.”

(Emphasis added.)

¶ 30 The second requirement is that the

defendant heard the statement. E.g. Donegan,

2012 IL App (1st) 102325, ¶ 67, 362 Ill.Dec.

831, 974 N.E.2d 352; Soto, 342 Ill. App. 3d at

1013, 277 Ill.Dec. 604, 796 N.E.2d 690. Kates

testified that there were only six people at the

meeting, that the six of them were meeting in

a living room, and that they were only a couple

of feet away from each other. Immediately

before Kates testified about Ramirez's and

Guerrero's description of the murder, the ASA

asked, “During this conversation who was

present with you?” (Emphasis added.) Kates

answered, “It was me, my brother Walter,

Bernard Monreal, Daniel Guerrero, Marcos

Ramirez and [defendant].” Thus, given the

small size of the meeting, the physical

proximity of the participants to each other, the

private and confidential nature of the meeting

App. 18

space, and Kates's testimony about who was

present for “this conversation,” we cannot find

that the trial court erred in concluding that

defendant heard Ramirez's and Guerrero's

statements.

¶ 31 The third requirement is that the

defendant had an opportunity to reply or

object and instead remained silent. E.g.

Donegan, 2012 IL App (1st) 102325, ¶ 67, 362

Ill.Dec. 831, 974 N.E.2d 352; Soto, 342 Ill. App.

3d at 1013, 277 Ill.Dec. 604, 796 N.E.2d 690.

In Kates's testimony, there was no indication

that defendant was prevented at this meeting

of only six people from objecting or replying. In

addition, the cross-examination established

that defendant was silent concerning the

murder during the meeting. Thus, all three

requirements for admission under the tacit

admission rule were satisfied, and we cannot

find that the trial court erred by admitting

these statements.

¶ 32 II. Gang Evidence

¶ 33 Second, defendant claims that the trial

court erred by granting the State's motion in

limine and admitting proof of gang

membership and affiliation, including expert

testimony. The State claims that this evidence

was relevant to establish motive and common

App. 19

design. In response, defendant argues that,

aside from Kates's testimony discussed above,

there was no evidence that defendant knew of

a common gang purpose or motive for the

murder and that defendant's statements to the

police “contained no hint of a gang motive.”

¶ 34 “Evidentiary rulings regarding gangrelated evidence are reviewed for abuse of

discretion.” People v. Villarreal, 198 Ill. 2d

209, 232, 260 Ill.Dec. 619, 761 N.E.2d 1175

(2001); People v. Johnson, 208 Ill. 2d 53, 102,

281 Ill.Dec. 1, 803 N.E.2d 405 (2003); People v.

Gonzalez, 142 Ill. 2d 481, 489–90, 154 Ill.Dec.

643, 568 N.E.2d 864 (1991). Although there is

“widespread disapproval that exists toward

street gangs,” a defendant may not insulate

the fact finder from the fact of his gang

membership, despite prejudice toward it, if

that fact is relevant to understanding the

case. Gonzalez, 142 Ill. 2d at 488–89, 154

Ill.Dec. 643, 568 N.E.2d 864; People v. Smith,

141 Ill. 2d 40, 58, 152 Ill.Dec. 218, 565 N.E.2d

900 (1990) (although “in metropolitan areas,

there may be strong prejudice against street

gangs,” such evidence need not be excluded if

relevant). It is left to the discretion of the trial

court to weigh the probative value and

prejudicial effect of this evidence to determine

App. 20

whether it should be admitted in any given

case. Gonzalez, 142 Ill. 2d at 489, 154 Ill.Dec.

643, 568 N.E.2d 864. As we observed above, an

abuse of discretion occurs only when the trial

court's decision is arbitrary, fanciful or

unreasonable to the degree that no reasonable

person would agree with it. Lerma, 2016 IL

118496, ¶ 23, 400 Ill.Dec. 20, 47 N.E.3d 985.

*6 141516¶ 35 “Gang membership evidence is

admissible only when there is sufficient proof

that the membership is related to the crime

charged.” Villarreal, 198 Ill. 2d at 232, 260

Ill.Dec. 619, 761 N.E.2d 1175; Johnson, 208

Ill. 2d at 102, 281 Ill.Dec. 1, 803 N.E.2d

405; Smith, 141 Ill. 2d at 58, 152 Ill.Dec. 218,

565 N.E.2d 900 (admissibility requires

“sufficient proof that such membership or

activity is related to the crime charged”). If the

State does establish a relationship between

membership and the crime charged, it must

also show that membership is “relevant to an

issue in dispute” and that “its probative value

is not substantially outweighed by its

prejudicial effect.” Villarreal, 198 Ill. 2d at

232,

260 Ill.Dec. 619,

761 N.E.2d

1175; Johnson, 208 Ill. 2d at 102, 281 Ill.Dec.

1, 803 N.E.2d 405; People v. Johnson, 159 Ill.

2d 97, 118, 201 Ill.Dec. 53, 636 N.E.2d 485

App. 21

(1994). “One of the purposes for which gang

evidence is admissible is to ‘provide a motive

for an otherwise inexplicable act.’ ” Villarreal,

198 Ill. 2d at 233, 260 Ill.Dec. 619, 761 N.E.2d

1175 (quoting Smith, 141 Ill. 2d at 58, 152

Ill.Dec. 218, 565 N.E.2d 900); see also Smith,

141 Ill. 2d at 58, 152 Ill.Dec. 218, 565 N.E.2d

900 (“admissible to show common purpose or

design, or to provide a motive for an otherwise

inexplicable act”).

¶ 36 Defendant's statement to the police, by

itself, established that the murder was gangrelated and gang-motivated and that,

specifically, defendant's participation in the

offense was gang-related and gang-motivated.

¶ 37 Before we discuss defendant's statement,

we observe that his statement contained

jargon and nicknames, and we provide here

the definition and explanation for these terms

given by a fellow gang member, Kates, during

Kates's trial testimony. For example, he

testified that to “check” someone meant “to see

if they have any gang affiliation or gang

tattoos.” Kates also testified that “Klepto” was

the nickname of fellow gang member Ramirez.

¶ 38 In part of defendant's videotaped

statement to the police, defendant stated that

he (defendant) was at a party when “Klepto”

App. 22

(Ramirez) entered the party and stated that he

(Ramirez) had observed members of “the

Counts” at a nearby gas station. Immediately

after Ramirez's announcement, six to eight

people exited the party. Defendant described

how he approached the murder victim and

“checked” him and what happened next:

“Yeah, I'm the one who checked dude. I was

like what's up n***, what y'all is? And right

away first n*** took off running and then boy

was just stuck right there. Klep hit him in

[the] back with the bat. First dude went down,

the dude that was right there, I think that

might have been the dude that got stabbed. I'm

not sure cause I don't know which one got

stabbed. Klep hit him in the back. Boom. F***

the other dude took off across the street,

couple of people went chasing after him but he

was gone. Came back. Everybody was just like

whooping him. I kicked him probably in the

face. Yeah I kicked him in the face. That's

when he must've got stabbed.”

¶ 39 Later in the statement, defendant stated:

“When I checked dude right here, he stands up

to me. You know what I'm sayin[g]. * * *

Everybody's trying to circle around him. * * *

He's already like this, looking around. Boom.

This guy gets cracked in the back. * * * This

App. 23

dude is already on the floor. People are kicking

him, punching—there's just a crowd. That's

why I'm sayin[g] I don't know who stabbed him

really cause there was a crowd. So I turned

around, he's right there. By that time, I kick

him, bow, you know what I'm sayin[g]. I might

have said a couple of things to him. You know

what I mean. By that time, f***, there was just

like cars on the street. Cars started beeping.

Like started pulling over. You know what I'm

sayin[g]. I ran; I was the first one there and I

was the first one to run.”

¶ 40 Later in his statement, defendant

repeated: “I was the first one to talk to the

dude. And I checked him, whatever. F***,

before the dude even saying anything he was—

started getting a whopped. You know he got

hit by the bat.”

¶ 41 In his statement, defendant emphasized

the importance of gang affiliation and colors in

the murder, stating: “I was the first one, so I

seen them. They're wearing all red. You know

what I'm saying? That's the Counts' colors.”

After observing these colors, defendant

demanded of the murder victim: “ ‘What's up

b***? You know what I'm saying? What the

f*** you all doing? It's the wrong side.’ ” After

that, “everbody's punching and kicking him. *

App. 24

* * I'm not going to lie. Kicked him, Ugh!”

¶ 42 Thus, defendant's statement establishes

that defendant was the first person to

approach the murder victim and that

defendant's primary purpose in approaching

the victim was to establish whether the victim

was a member of a gang and, if so, which one.

While the gang testimony may have had a

prejudicial, even horrifying, impact on the

jury, it would be impossible to understand why

this group of men would spontaneously exit a

party and beat an innocent passerby to death

without this evidence, in particular, the

victim's wearing of the color red, which was

the color of a rival gang. As a result, we can

find no error here by the trial court in granting

the State's motion and admitting gang

evidence.

¶ 43 III. Gallegos's Identification

¶ 44 Third, defendant claims that the trial

court erred by admitting, over defendant's

objection, certain testimony by Mario

Gallegos, one of the two victims of the attack

and the only eyewitness to testify at trial.

Gallegos testified that he had selected

defendant at a prior lineup as being someone

who “ kind of look[ed] like the people that were

there the date it had occurred.” Defendant

App. 25

claims that this testimony was too speculative

to be relevant and too inconclusive to qualify

as an identification. The trial court found that

Gallegos's identification was “tentative” but

that his tentativeness went to weight not

admissibility. For the following reasons, we

find that the trial court did not abuse its

discretion by admitting this testimony.

¶ 45 Concerning the lineup that he viewed on

September 12, 2012, Gallegos testified on

direct examination:

“[ASA]: Showing you what has been marked as

People's Identification—photograph marked

as People's Exhibit No. 19. Do you recognize

what's depicted in that photograph?

GALLEGOS: Yeah, I see the lineup.

[ASA]: This is a lineup you viewed?

GALLEGOS: Yes.

[ASA]: Do you remember seeing that lineup

back in 2012?

GALLEGOS: Yes, I do.

[ASA]: Is there anybody in that lineup that you

told the police officers you recognized?

GALLEGOS: I pointed out two of them.

[ASA]: Going from left to right on the

photograph itself, starting here on the left

side, going to the right, which person did you

identify in that photograph?

App. 26

GALLEGOS: Two in the middle.

[ASA]: Two in the middle?

GALLEGOS: Yeah.

[ASA]: What did you tell the officers

pertaining to your identification of these two

individuals at that time?

GALLEGOS: They kind of look like the people

that were there the date it had occurred.

[ASA]: This is going back to the incident when

you and Alan were struck with the bat?

GALLEGOS: Yes.

[ASA]: You told them that they kind of look

like the persons?

GALLEGOS: Yes.”

¶ 46 Immediately after the above testimony,

defense counsel objected to its admission on

the basis that it was inconclusive. At the

ensuing sidebar, the ASA stated that

defendant was one of the two people whom

Gallegos testified “kind of look like the people

that were there.” The trial court agreed with

defense counsel that this identification was

“tentative” but ruled that the tentativeness of

the identification “go[es] towards weight

rather than its admissibility” and, thus, it was

admissible.

*8 ¶ 47 After the sidebar, Gallegos further

testified:

App. 27

“[ASA]: Again Mr. Gallegos, you told us

moments ago I believe that the two individuals

in the middle that you say that look—well, tell

me again, what do you recognize them as?

GALLEGOS: As the guys that were there.

[ASA]: You said earlier that guys, you believe

they were the guys over there or possibly the

guys?

GALLEGOS: Possibly.”

¶ 48 On cross, Gallegos testified:

“DEFENSE COUNSEL: When you saw this

actual, physical lineup in September of 2012,

you indicated that you made an identification

of two people, is that correct?

GALLEGOS: Yes.

DEFENSE COUNSEL: Number two and

number three, is that right?

GALLEGOS: Yes.

DEFENSE COUNSEL: You're not—you were

unable to positively determine that either

number two or number three were there, is

that correct?

GALLEGOS: That's possible.

DEFENSE COUNSEL: Just possible.

GALLEGOS: It's possible.

DEFENSE COUNSEL: When you say either

two or three could have been there, is your

testimony that it may have been either of

App. 28

these two people or that possibly both of them

were there or both of them weren't there?

GALLEGOS: I wasn't—well, possibly like I

said. They were Hispanic.”

¶ 49 On cross, Gallegos further testified:

“DEFENSE COUNSEL: Mario, you're not

really certain that [defendant] was there on

34th Street, my client, the individual you saw

in that lineup in September of 2013?

GALLEGOS: I said possibly.

DEFENSE COUNSEL: Possibly. It's possible

he may not, is that correct?

GALLEGOS: Possibly, like I said.”

¶ 50 Whether a trial court erred in admitting

a statement as a prior statement of

identification is generally an issue that a

reviewing court will reverse only for an abuse

of discretion. People v. Temple, 2014 IL App

(1st) 111653, ¶ 33, 383 Ill.Dec. 339, 14 N.E.3d

622. As we observed above, an abuse of

discretion occurs only when the trial court's

decision

is

arbitrary,

fanciful,

or

unreasonable, or where no reasonable person

would agree with the position adopted by the

trial court. Temple, 2014 IL App (1st) 111653,

¶ 33, 383 Ill.Dec. 339, 14 N.E.3d 622.

¶ 51 As we also observed above, Rule 801 of

the Illinois Rules of Evidence defines both

App. 29

what statements constitute hearsay and what

statements do not constitute hearsay. Ill. R.

Evid. 801 (eff. Oct. 15, 2015). The rule provides

that a statement is not hearsay, if, in a

criminal case, (1) “the declarant testifies at the

trial or hearing,” (2) the declarant is “subject

to

cross-examination

concerning

the

statement,” and (3) the statement is “one of

identification of a person made after

perceiving the person.” Ill. R. Evid.

801(d)(1)(B) (eff. Oct. 15, 2015). In the case at

bar, Gallegos (1) testified at trial and (2) was

subject to cross-examination. However,

defendant claims that the State failed to

establish the third requirement because the

statement was too inconclusive to qualify as a

statement “of identification.” Ill. R. Evid.

801(d)(1)(B) (eff. Oct. 15, 2015).

¶ 52 In addition, defendant argues that the

statement should have been excluded

pursuant to Illinois Rule of Evidence 403,

which provides, in relevant part, that,

“[a]lthough relevant, evidence may be

excluded if its probative value is substantially

outweighed by the danger of unfair prejudice,

confusion of the issue, or misleading the jury.”

Ill. R. Evid. 403 (eff. Jan. 1, 2011). Defendant

argues that the statement was too speculative

App. 30

to qualify as relevant.

¶ 53 People v. Tisdel, 201 Ill. 2d 210, 266

Ill.Dec. 849, 775 N.E.2d 921 (2002), is

instructive. In Tisdel, the defendant argued

that the trial court erred in admitting, as

identification evidence, testimony by State

witnesses that they had viewed prior lineups

containing persons other than defendant and

had not made an identification. Tisdel, 201 Ill.

2d at 215, 266 Ill.Dec. 849, 775 N.E.2d 921.

The supreme court construed “ ‘statements of

identification’

to

include

the

entire

identification process.” Tisdel, 201 Ill. 2d at

219, 266 Ill.Dec. 849, 775 N.E.2d 921. In

reaching this conclusion, the supreme court

observed that defense counsel had an

opportunity to, and did, in fact, cross-examine

the witnesses extensively. Tisdel, 201 Ill. 2d at

221, 266 Ill.Dec. 849, 775 N.E.2d 921; see also

Ill. R. Evid. 801(d)(1)(B) (eff. Oct. 15, 2015) (for

a prior identification to be admissible in a

criminal case, the declarant must be “subject

to

cross-examination

concerning

the

statement”). Similarly, in our case, the

statement was part of the identification

process and was subject to cross-examination

at trial.

¶ 54 In addition, in reaching its finding,

App. 31

the Tisdel court relied on Neil v. Biggers, 409

U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401

(1972). Tisdel, 201 Ill. 2d at 220, 266 Ill.Dec.

849, 775 N.E.2d 921. Normally, to assess

identification testimony, Illinois courts

consider the five factors set forth in Biggers,

409 U.S. at 199–200, 93 S.Ct. 375: (1) the

witness's opportunity to view the defendant

during the offense, (2) the witness's degree of

attention at the time of the offense, (3) the

accuracy of any prior description by the

witness, (4) the witness's level of certainty at

the identification, and (5) the length of time

between

the

crime

and

the

identification. People v. Slim, 127 Ill. 2d 302,

307–08, 130 Ill.Dec. 250, 537 N.E.2d 317

(1989). The court takes all five factors into

consideration,

as

well

as

all

the

circumstances. Biggers, 409 U.S. at 198–200,

93 S.Ct. 375. The witness's level of certainty is

only one of the five factors. See People v. Allen,

376 Ill. App. 3d 511, 524, 314 Ill.Dec. 934, 875

N.E.2d 1221 (2007) (studies show that there

are “low correlations between the witness's

confidence and the accuracy of her

identification”). In sum, we cannot find that

the trial court abused its discretion by

admitting the lineup testimony as a prior

App. 32

statement of identification, where defendant's

argument is based on only one of

the Biggers factors,

where

the

Illinois

Supreme Court in Tisdel found that the entire

identification process qualifies as a statement

of identification, and where defendant had an

opportunity to, and did, in fact, cross-examine

the witness extensively concerning the

statement and the tentative nature of his

identification.

¶ 55 Defendant further argues that the

statement's probative value was outweighed

by its prejudice and that Gallegos identified

defendant only because he was “Hispanic.”

Gallegos's “Hispanic” comment was brought

out on cross-examination when defense

counsel was pressing Gallegos to explain what

Gallegos meant when he had stated that

defendant was “possibly” there. Gallegos

replied, “I wasn't—well, possibly like I said.

They were Hispanic.” A trial witness's

statement about an offender's ethnicity is

admissible as a statement of prior

identification, which then may be tested and

explored on cross-examination. See Temple,

2014 IL App (1st) 111653, ¶¶ 30, 41, 383

Ill.Dec. 339, 14 N.E.3d 622 (a witness's prior

statement that she observed “a white male

App. 33

when she looked out her window” was properly

admitted as a statement of identification,

where the declarant was available for crossexamination at trial). On appeal, defendant

does not argue that the lineup was unduly

suggestive. Thus, we cannot find the trial

court abused its discretion by finding that any

prejudicial effect of Gallegos's lineup

testimony was outweighed by its probative

value.

¶ 56 IV. Miranda Warnings

¶ 57 Defendant claims that the trial court

erred by denying his pretrial motion to

suppress his statement to the police, on the

ground that the police did not advise him of his

right to stop the questioning. On appeal,

defendant acknowledges that some Illinois

courts have found that police are not required,

as part of their Miranda warnings, to inform a

suspect that he has the right to halt

questioning at any time.3 However, defendant

argues that these cases are decades-old and

that “the Miranda rights should include an

explicit warning that the accused has the right

to cut off or terminate questioning at any

time.” In addition, defendant argues that, even

if “the federal Miranda guarantee does not

assure such a right,” such a right is provided

App. 34

by the Illinois constitution. See People v.

McCauley, 163 Ill. 2d 414, 442, 206 Ill.Dec.

671, 645 N.E.2d 923 (1994) (“Authorities must

inform suspects that if they cannot afford an

attorney, one will be provided, and that they

may ask for one at any time and upon doing so,

the interrogation must cease.”).

*10 24¶ 58 Both the State and defendant agree

that de novo review is appropriate for this

question, which is solely a question of

law. Jones, 2018 IL App (1st) 151307, ¶ 21, ––

– Ill.Dec. ––––, ––– N.E.3d –––– (a pure

question of law is reviewed de novo ).

¶ 59 Normally, “when a trial court's ruling on

a motion to suppress evidence involves factual

determinations and credibility assessments,

the ultimate ruling will not be disturbed on

appeal

unless

it

is

manifestly

erroneous.” People v. Sorenson, 196 Ill. 2d 425,

430–31, 256 Ill.Dec. 836, 752 N.E.2d 1078

(2001). “This deferential standard of review is

grounded in the reality that the trial court is

in a superior position to determine and weigh

the credibility of witnesses, observe the

witnesses' demeanor, and resolve conflicts in

the witnesses' testimony.” Sorenson, 196 Ill.

2d at 431, 256 Ill.Dec. 836, 752 N.E.2d 1078.

However, a court will “review de novo the

App. 35

ultimate question of the defendant's legal

challenge to the denial of his motion to

suppress.” Sorenson, 196 Ill. 2d at 431, 256

Ill.Dec. 836, 752 N.E.2d 1078. In the case at

bar, when deciding defendant's pretrial

suppression motion, the trial court did not

hear any live testimony; rather it reviewed

only the relevant portion of defendant's

videotaped statement. As a result, the

evidence before the trial court and the

evidence before us is the same. Thus, we agree

with the parties that we should conduct a de

novo review, which means that we perform the

same analysis that a trial court would

perform. Jones, 2018 IL App (1st) 151307, ¶

21, ––– Ill.Dec. ––––, ––– N.E.3d ––––.

¶ 60 For this claim, defendant relies primarily

on our supreme court's decision in McCauley,

where our supreme court stated in dicta:

“Authorities must inform suspects that if they

cannot afford an attorney, one will be

provided, and that they may ask for one at any

time and upon doing so, the interrogation

must cease.” McCauley, 163 Ill. 2d at 442, 206

Ill.Dec. 671, 645 N.E.2d 923. In McCauley, our

supreme court held that, when an attorney

came to the police station where the defendant

was being interrogated and the police refused

App. 36

either to tell the defendant that his attorney

was present or to allow the attorney access to

his client, the police violated the defendant's

right to counsel under the Illinois

Constitution. McCauley, 163 Ill. 2d at 423–24,

206 Ill.Dec. 671, 645 N.E.2d 923; see

also People v. Pitchford, 314 Ill. App. 3d 72, 78,

246 Ill.Dec. 795, 731 N.E.2d 323 (2000). Our

supreme court held that, although the police

did not violate defendant's right to counsel

under the United States Constitution, they did

violate this right under the Illinois

Constitution:

“Regardless of the United States Supreme

Court's current views on waiver of the right to

counsel under the Federal Constitution, the

law in Illinois remains that ‘when police, prior

to or during custodial interrogation, refuse an

attorney appointed or retained to assist a

suspect access to the suspect, there can be no

knowing waiver of the right to counsel if the

suspect has not been informed that the

attorney was present and seeking to consult

with him.’ ” (Emphasis in original.) McCauley,

163 Ill. 2d at 424–25, 206 Ill.Dec. 671, 645

N.E.2d 923 (quoting People v. Smith, 93 Ill. 2d

179, 189, 66 Ill.Dec. 412, 442 N.E.2d 1325

(1982) ); see also Pitchford, 314 Ill. App. 3d at

App. 37

78, 246 Ill.Dec. 795, 731 N.E.2d 323.

¶ 61 The McCauley court explained:

“Our State constitutional guarantees simply

do not permit police to delude custodial

suspects, exposed to interrogation, into falsely

believing they are without immediately

available legal counsel and to also prevent

that counsel from accessing and assisting their

clients during the interrogation.” McCauley,

163 Ill. 2d at 423–24, 206 Ill.Dec. 671, 645

N.E.2d 923; see also Pitchford, 314 Ill. App. 3d

at 78–79, 246 Ill.Dec. 795, 731 N.E.2d 323.

*11 ¶ 62 In the case at bar, defendant does not

claim that his attorney was at the police

station

when

defendant

was

being

interrogated. Rather, he claims, based

on McCauley, that the police were required to

inform him, prior to questioning and as part of

their Miranda warnings, that he had the right

to terminate questioning at any time.

Defendant does not cite a single Illinois case,

in the almost 25 years since McCauley was

decided, that cites McCauley for such a

proposition or that holds what he asks us to

hold based on it. Nor can we find one. Thus, we

decline his invitation to expand the

required Miranda warnings.

App. 38

¶ 63 V. Sentencing

¶ 64 Defendant's remaining claims on appeal

concern his sentence: (1) that his 40–year

sentence is excessive and should be reduced to

20 years; (2) that his 40–year sentence is

disproportionate to the 30–year sentence

received by codefendant Gary Sams; and (3)

that the trial court failed to consider, in

mitigation, defendant's youth at the time of

the incident and defendant's prior work

record. For the following reasons, we do not

find that the trial court abused its discretion

in determining defendant's sentence.

¶ 65 The sentencing range was between 20 and

60 years, and the State asked for the “fullest”

sentence. 730 ILCS 5/5–4.5–20(a) (West 2010)

(“Imprisonment shall be for a determinate

term of (1) not less than 20 years and not more

than 60 years * * *.”). However, defendant

received a sentence exactly in the middle of the

sentencing range. At sentencing, the trial

court articulated its reasons for selecting 40–

year and 30–year sentences for defendant and

codefendant Sams, which we provide here in

full:

“THE COURT: Well, where do I begin?

Certainly I wish that I could offer some

explanation or answer to families from both

App. 39

sides in this case. Sometimes there are no

answers. Why does evil exist in the world?

Why do innocent people have to suffer? I don't

know. It is awful, senseless, and it is a tragedy

for both sides. Three lives have been lost, and

three families are broken and in pain. The

[victim's] family will never be able to visit

their son except in a cemetery, and

[defendant's]

and

[codefendant

Sam's]

families, at least they will be able to visit their

sons in the penitentiary, but certainly that is

not [a] consolation to them.

The Court has had the opportunity to review

the Pre–Sentence Investigations, the letters

submitted on behalf of all sides, letters in

mitigation for [codefendant Sams], I have

considered the certificates and this addendum

for [defendant], certainly the victim impact

statements are moving and speak greatly of

the loss and pain that the family and friends

of the [victim's] family are suffering.

[Codefendant Sams] is 39 years old now. I

have reviewed his background. It does appear

that he had[,] while he was involved actively

in the gang when he was younger, he had

turned his life around to a certain extent. He

was working as a laborer. There are letters of

recommendation, letter of good deeds that he

App. 40

had done for his friends and his family.

[Codefendant's counsel] read one of those

letters here in open court, and now, because of

his senseless and stupid act on that night in

May, he has ruined his life and severely

damaged the life of those who love him. All of

that is now flushed down the toilet for his

willingness to participate in the beating of

somebody simply because he is wearing the

wrong color shirt.

With regard to [codefendant] Sams, after

considering all the factors in aggravation and

mitigation, his rehabilitative potential,

judgment is entered on Count 1, and the Court

finds an appropriate sentence to be 30 years in

the Illinois Department of Corrections.

With regard to [defendant], [he] is a younger

man. He was on probation at the time that this

occurred, which the Court does find

aggravating. He was still the Court believes an

active member of the gang. I think he is still

an active member of the gang. I don't believe

him when he says he is not. The Court heard

his statement. The Court believes that he

exhibited a certain amount of relish in

describing what he did, and he was more

active. He was the first one off the porch to

beat these guys who he thought were rival

App. 41

gang members.

I have considered his statements, all the

factors in aggravation and mitigation,

including his rehabilitative potential, and

judgment is entered on the finding. The Court

finds an appropriate sentence to be 40 years in

the Illinois Department of Corrections.”

¶ 66 “A reviewing court gives substantial

deference to the trial court's sentencing

decision because the trial judge, having

observed the defendant and the proceedings, is

in a much better position to consider factors

such as the defendant's credibility, demeanor,

moral character, mentality, environment,

habits, and age.” People v. Snyder, 2011 IL

111382, ¶ 36, 355 Ill.Dec. 242, 959 N.E.2d

656; People v. Alexander, 239 Ill. 2d 205, 212–

13, 346 Ill.Dec. 458, 940 N.E.2d 1062 (2010).

Thus, a sentence within the appropriate

sentencing range is usually accorded great

deference. People v. Anaya, 2017 IL App (1st)

150074, ¶ 102, 420 Ill.Dec. 320, 96 N.E.3d 405.

Although Illinois Supreme Court Rule 615(b)

grants a reviewing court the power to reduce a

sentence or the degree of an offense, our

supreme court has cautioned that this power

should

be

used

cautiously

and

sparingly. Alexander, 239 Ill. 2d at 212, 346

App. 42

Ill.Dec. 458, 940 N.E.2d 1062. As a result, an

appellate court “may not alter a defendant's

sentence

absent

an

abuse

of

discretion.” Alexander, 239 Ill. 2d at 212, 346

Ill.Dec. 458, 940 N.E.2d 1062; see also Snyder,

2011 IL 111382, ¶ 36, 355 Ill.Dec. 242, 959

N.E.2d 656 (“a reviewing court may not modify

a defendant's sentence absent an abuse of

discretion”). Our supreme court has found

that, with respect to a sentence, an abuse of

discretion occurs when the sentence is greatly

at variance with the spirit or purpose of the

law or manifestly disproportionate to the

nature of the offense. Snyder, 2011 IL 111382,

¶ 36, 355 Ill.Dec. 242, 959 N.E.2d

656; Alexander, 239 Ill. 2d at 212, 346 Ill.Dec.

458, 940 N.E.2d 1062. A reviewing court must

not substitute its judgment for that of the trial

court merely because it would have weighed

various

sentencing

factors

differently. Alexander, 239 Ill. 2d at 213, 346

Ill.Dec. 458, 940 N.E.2d 1062.

¶ 67 First, defendant observes that he

obtained his GED in 2007, that he was only 20

years old in 2010 when this offense occurred,

that between 2010 and 2012 he was employed

as a forklift operator, and that his stepmother

testified at sentencing that he was a good

App. 43

father, son, and brother. Although defendant

claims that the trial court failed to consider his

youth, the trial court specifically observed that

defendant was “a younger man.” However, the

trial court then observed that defendant was

also on probation at the time of the offense

“which the Court does find aggravating.” The

presentence investigation report reveals that

defendant was on probation for possession of a

stolen vehicle when the current offense

occurred.4 In addition, the trial court found

that defendant was, and still is, an active gang

member. During the sentencing hearing,

defendant stated to the court: “I am not a gang

member anymore, and I have not been for a

long time. I had tattoos removed, moved out of

the area where they are located, tried to better

my life, and stopped all contact with them.”

However, the trial court found, specifically,

that it had made a credibility determination

and that it did not believe defendant when he

stated that he was no longer a gang member.

After observing defendant's demeanor firsthand, as well as all the evidence at trial, the

trial court found “I don't believe him when he

says he is” no longer an active gang member.

A reviewing court owes great deference to a

trial court's credibility determinations.

App. 44

Sorenson , 196 Ill. 2d at 431, 256 Ill.Dec. 836,

752 N.E.2d 1078 (“the trial court is in a

superior position to determine and weigh the

credibility of witnesses, observe the witnesses'

demeanor, and resolve conflicts in the

witnesses' testimony”). Thus, we cannot find

that the trial court abused its discretion when

considering defendant's age, education,

employment history, and familial roles in light

of his probation status and gang membership.

*13 33¶ 68 In particular, defendant argues

that the trial court failed to consider his young

age. In support, defendant quotes the United

States Supreme Court's decision in Roper v.

Simmons, 543 U.S. 551, 570, 125 S.Ct. 1183,

161 L.Ed.2d 1 (2005), stating:

“The reality that juveniles still struggle to

define their identity means it is less

supportable to conclude that even a heinous

crime committed by a juvenile is evidence of

irretrievably depraved character. From a

moral standpoint it would be misguided to

equate the failings of a minor with those of an

adult * * *.”

At the time of the offense, defendant was 20

years old, which is years away from juvenile

status. “When the legislature draws lines with

respect to age, there will always be people who

App. 45

are close to the line.” Jones, 2018 IL App (1st)

151307, ¶ 73, ––– Ill.Dec. ––––, ––– N.E.3d ––

––. Defendant asks us to consider a difference

of years—not two days or two weeks, but years

from juvenile status. “Since there will always

be a defendant close to the legislative line, the

statute at issue provided the judiciary with the

ability to exercise discretion in fashioning an

appropriate sentence within a particular

range.” Jones, 2018 IL App (1st) 151307, ¶ 73,

––– Ill.Dec. ––––, ––– N.E.3d ––––. In the case

at bar, the trial court utilized that discretion

to fashion an appropriate sentence.

¶ 69 Defendant also claims that he had a

minor role in the offense. While it is true that

others stabbed or beat the victim with a bat,

defendant admitted in his statement to the

police that he was the first one to approach the

murder victim, that he was the one who asked

the victim for the victim's gang affiliation, and

that he kicked the victim in the head when the

victim was already down. At sentencing, the

trial court considered defendant's statement to

the police, observing: “The Court heard his

statement.

The

Court

believes

that

[defendant] exhibited a certain amount of

relish in describing what he did and he was

more active. He was the first one off the porch

App. 46

to beat those guys who he thought were rival

gang members.” Thus, the trial court did not

find that defendant's role in the offense was

minor, and on appeal, we cannot find that the

trial court abused its discretion in making this

finding.

¶ 70 Next, defendant claims that his 40–year

sentence was disproportionate because his

codefendant Sams received 30 years. However,

as we explained above, the trial court did not

find defendant's role as minimal as defendant

claims. When defendant moved the trial court

to reconsider his sentence on the ground that

it was disproportionate to codefendant Sam's

sentence, the trial court explained that, most

“importantly, I feel that [defendant's]

involvement in the offense was greater than

that of [codefendant Sam's]” because

defendant was “leading the charge, so to

speak, which the court felt deserved a more

severe sentence than that of [codefendant

Sams].”

¶ 71 In sum, we cannot find that the trial court

abused its discretion in sentencing defendant.

¶ 72 As a final matter, defendant asks to

review his sentence not only for an abuse of

discretion but also de novo to consider

whether the trial court complied with the

App. 47

Illinois constitutional provision requiring that

“[a]ll penalties shall be determined both

according to the seriousness of the offense and

with the objective of restoring the offender to

useful citizenship.” Ill. Const. 1970, art. I, § 11.

Defendant bases this claim primarily on a

recent decision in which the Fifth District

stated that it “encourage[d] our supreme

court” to review the issue of whether the

standard of review employed in sentencing

should be expanded to a two-part

process. People v. Etherton, 2017 IL App (5th)

140427, ¶ 22, 415 Ill.Dec. 489, 82 N.E.3d 693.

In a two-part process, sentences would “be

reviewed [de novo ] to determine whether the

trial court followed the constitutional and

statutory guidelines in addition to whether

the trial court abused its discretion.”

(Emphasis added.) Etherton, 2017 IL App

(5th) 140427, ¶ 22, 415 Ill.Dec. 489, 82 N.E.3d

693. However, the Fifth District concluded:

“After careful consideration, we decline to

abandon our supreme court's application of the

abuse of discretion standard in reviewing

sentences. Our supreme court has extensively

considered the propriety of using the abuse of

discretion standard in reviewing sentences

and has repeatedly upheld the use of this

App. 48

standard. As an appellate court, we are bound

to follow the decisions of our supreme court

and have no authority to overrule

them.” Etherton, 2017 IL App (5th) 140427, ¶

21, 415 Ill.Dec. 489, 82 N.E.3d 693.

Like our sister district, we decline defendant's

invitation to employ a different standard of

review, and instead employ the standard

required by our supreme court.

¶ 73 CONCLUSION

¶ 74 For all the foregoing reasons, we affirm

defendant's conviction and sentence.

¶ 75 Affirmed.

Presiding Justice Burke and Justice Ellis

concurred in the judgment and opinion.

All Citations

--- N.E.3d ----, 2018 IL App (1st) 160120, 2018

WL 3203614

Footnotes

1

Before 2015, Rule 801(d)(2) was titled

“Admission by Party–Opponent.” Ill. R. Evid.

801(d)(2) (eff. Jan. 1, 2011). Thus, courts used

the term “tacit admission.”

2

See People v. Goswami, 237 Ill. App. 3d 532,

536, 178 Ill.Dec. 497, 604 N.E.2d 1020 (1992)

(using the term “ ‘an admission by silence’ ”

App. 49

(quoting People v. Miller, 128 Ill. App. 3d 574,

583, 83 Ill.Dec. 802, 470 N.E.2d 1222 (1984) )

).

3

People v. Merrero, 121 Ill. App. 3d 716, 722, 77

Ill.Dec. 62, 459 N.E.2d 1158 (1984) (“although

an individual has the right to cut off

questioning at any time, Miranda does not

require that the individual be informed of this

right as part of the warnings”), overruled on

other grounds by People v. Williams, 235 Ill.

2d 286, 336 Ill.Dec. 470, 920 N.E.2d 1060

(2009); People v. Hudson, 8 Ill. App. 3d 813,

814, 291 N.E.2d 308 (1972) (Defendant “was

not advised that he could have stopped the

questioning at any time. Such warning,

however, is not essential.”); People v.

Washington, 115 Ill. App. 2d 318, 328, 253

N.E.2d 677 (1969) (“[i]t was not necessary that

defendant be informed that he could terminate

the questioning at any period”).

4

With respect to defendant's probation, the

ASA argued at sentencing that defendant “was

given a chance” and “what did he do? He

committed murder.” The ASA argued, “The

Judge that gave him that probation I am sure

wishes that he gave him something more now,

App. 50

but no Judge can look in the future and tell

that then.”

App. 51

APPENDIX C

IN THE CIRCUIT COURT OF COOK

COUNTY, ILLINOIS COUNTY

DEPARTMENT – CRIMINAL DIVISION

_____________________

No. 12-CR-18726-03

PEOPLE OF THE STATE OF ILLINOIS,

PLAINTIFF

v.

PABLO COLON, DEFENDANT

_____________________

[June 13, 2014]

_____________________

THE COURT: Thank you.

I had the opportunity to review the disk that

was tendered to me on more than one occasion.

have reviewed the transcript, which has also

been tendered and will be made part of the

record. I have reviewed the caselaw as

submitted by both parties, and I have

App. 52

considered the arguments of Counsel.

I am prepared to give my findings of fact and

conclusions of law. I find that at the time of the

– the defendant was initially interviewed, that

the detective told the defendant that he had

the right to remain silent; that anything he

said could be used against him in court. He

asked the defendant if he understood that, and

the defendant indicated that, yes, he did. The

officer detective informed the defendant that

he had the right to an attorney and that he

could not -- if he could not afford an attorney,

he would be given one free of charge. The

defendant indicated that he understood that.

And the detective also told the defendant that

he had the right to have an attorney with him.

during any questioning. He asked the

defendant if he understood that. The

defendant replied that, yes, he did. The Court

finds that those are sufficient Miranda

warnings. They are time specific, informed the

defendant he had the right to an attorney

during the questioning at that time.

The motion to suppress statement is denied.