Opposition Brief — Illinois v. Montanez

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

Sunrema Court, U.S.

Sui

Fine»

WAY 10 1996

No. 95-1429

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

PEOPLE OF THE STATE OF ILLINOIS, ) On Petition for a Writ

) of Certiorari to the

Petitioner, ) Appellate Court of Illinois

) First District, Second Div.

)

-vVs- )

JACQUELINE MONTANEZ, )

)Respondent's Brief in

Respondent Opposition to the Petition

Respondent Jacqueline Montanez asks leave to file the

attached Brief in Opposition to a Petition for a Writ of

Certiorari to the Appellate Court of Illinois without payment

of fees or costs and proceed in forma pauperis.

Respondent was represented in the trial and appellate

courts by court-appointed counsel.

Respondent's affidavit of indigency is attached in support

ef this motion.

Respectfully submitted,

RITA A. ERY,

Public Defender of Cook County

200 West Adams St., 9th Floor

Chicago, Illinois 60606

(312) 609-2040

ogo

f re - / /

py _samu 7 Ufeddcy

/ / JAMES H. REDDY F 4

‘Chief, Appeals Division

el of Record.

& STATE OF ILLINOIS, .

Petitioner

Ve

JACQUELINE MONTANEZ,

Respondent

AFFIDAVIT IN SUPPORT OF A MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

I, Jacqueline Montanez, being first duly sworn, depose and

say that I am the respondent in this cause; that in support of

my motion to proceed without being required to prepay fees,

costs or give security therefore, I state that because of my

poverty I am unable to pay the costs of this case or give

security therefore; and that I believe I am entitled to redress.

I further swear that:

& Be I am not presently employed;

ze During the past twelve months I have had no income;

Za I have no cash, checking or savings account;

4. I own no property;

a No one is dependent upon me for support.

I understand that a false statement in this affidavit will

subject me to penalties for perjury.

TT

Oh ee rt aisee towel V/V ee rea 153

Ye tc MONTANEZ

SUBSCRIBED and SWORN TO

Before me this /O= _ day

of May, A.D., 1996.

1 fe YZ,

. AM Othe, ’. Oia

: a NGTARY PUBLIC

POPPA POP POF LP

3 “OFFICIAL SEAL" 3

; VIDA CATLEDGE BROWN

Notary Public, State of lilinois

My Commission Expires 8/9/99

sw Via

4.

QUESTION PRESENTED FOR REVIEW

ther the Illinois Appellate Court did what it said it

lowed the well-established, directly on point and

ing precedent of the Illinois Supreme Court by applying

ty of the circumstances analysis to determine that the

old respondent's confession was not voluntary?

a TABLE OF CONTENTS

Te er 1

EEE SE Eee ee eee eT ee Te eee Te eee eee 2

Table eS Sede A erie Ae aw kW Oe oe Oe A ee eK eG 3

ee ae kl ee he 6 a Sa eA ee we Oe on ewe 8 5-9

en se se Mee eee es ee eee oe aes 10

The Appellate Court Found the Statement Involuntary

Under the Totality of the Circumstances and Did Not

Create or Apply a Per Se Rule.

Ee Oe rao are ee ag ee 17

Appendix:

& A. Pawar tere, © GOAGEON 2.6 coe ca oa he ec eess Al

B. Trial Judge's Finding Denying the Motion

a i ed ee ee Ae ee AW a a eee A eae A ak A2

Table of Authorities

Cases:

In re SDS (1982) 103 I[11.App.3d 1008, 431 N.B.2d 759 «.....;.

People v. Brown (1989), 182 I11.App.3d 1046, 538 N.E.2d 908

Feople v. Johnson (1970), 4 I11.2d 463, 256 N.E.2d 343 ......

People v. Knox (1989), 186 I1l1.App.3d 808 542 N.E.2d 910

People v. Nemke (1962), 23 I11.2d 591, 179 N.E.2d 825 .......

People v. Prude (1977), 66 I1l.24 479, 363 B.8.28 274 106200

Steptore (1972), 51 I11.2d 208, 281 N.E.2d 642

People v. Travis (1984), 122 I11.App.5d 671, 462 N.E.2d 654

eopie v. Zepeda (1970), 47 I11.2d 23, 265 N.6.2 G47 ....6.2.-

Statute:

FOS EWCS GUS/SoS: 600s 0s Cees ee a eee ee ee ee ee ee ee

& No. 95-1429 x

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 12995

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

vs.

JACQUELINE MONTANEZ,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS,

FIRST DISTRICT, SECOND DIVISION

BRIEF FOR RESPONDENT IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

Ea 2 RETR Ob LY IP: Ki Wes. etre tale

ee

%

STATEMENT OF THE CASE

The fifteen year old minor respondent was charged with two

murders. (R.C. 15-18) She was tried as an adult before a jury and

convicted. She was sentenced to a mandatory term of natural life

imprisonment. (R.C. 67,68; Vol. III F15)

Pre-trial respondent moved to suppress in custody statements as

involuntary. (R.C. 41-43) After a hearing the motion was denied.

(Vol. IV A8-9)

At the hearing Detective Halvorse.. testified that he and his

partner, Detective Guevarra, arrested respondent at nine p.m. on May

13, 1992, on the street after a funeral. Respondent was taken into

custody for the murders of Hector Reyes and Jimmy Cruz the previous

day. Respondent was taken to Area 5 in a squad car and placed in an

interview room. (Vol. II 3-5) Halvorsen informed respondent of her

Miranda rights and that "she could possibly be charged as an adult in

this case." (Vol II. 5-6)

Halvorsen testified that between 9:30 and 10:00 p.m., he tried

to contact a youth officer and to have respondent's family informed

of her arrest.

Halvorsen asked that a squad car he sent to inform respondent's

family of her arrest. He had no personal knowledge if this request

was followed up. (Vol. II. A24-25) Halvorsen also contacted the

office of the youth officer. He was told a youth officer would be

available sometime after midnight. (Vol. II A22) At 10 p.m.

Halvorsen returned to respondent and began the interrogation. (Vol.

II AlO)

Sandra Lorenzi, respondent's mother testified that police came

to her home at about ten p.m. The police first told Mrs. Lorenzi her

daughter was a witness. Eventually they informed her her daughter

was involved. Mrs. Lorenzi requested to see her daughter. The

officer told her “not right now because they had her in custody."

The officer told her they would telephone to let her know when she

could come and that she had to wait until she was called. (Vol. II

A55-59)

Mrs. Lorenzi waited until about 2:00 a.m. When the officer had

not called by that time, she decided to wait no longer. (Vol. II

60-61) At the station, Mrs. Lorenzi spoke to the desk sergeant and

was told she had to wait in a waiting room. Mrs. Lorenzi was so

nervous she went upstairs. There she saw a Spanish detective. She

did not know his name. (Detective Halvorsen's partner, Detective

Guevarra was Spanish speaking. (Vol. II. A26)) He told her she had

to wait downstairs until he called her. Mrs. Lorenzi waited for one

and one half hours. She then went back upstairs. The same detective

told her to "get the hell” out of there because they were talking to

her daughter. Again, at about 3:15 a.m... Mrs. Lorenzi went upstairs

but was not able to see respondent. She was finally allowed to see

her at 8:30 a.m. (Vol. II 60-63. 70)

Halvorsen testified that when he returned to respondent at 10

p.m. he advised her of her rights and took a statement. (Vol. II

A1l0) At around midnight Halvorsen's partner told him he had spoken

with respondent's mother and she would get there as soon as she

could. (Vol. II A7,25) Also at midnight a youth officer and an

Assistant State's Attorney arrived. (Vol. II A22) At 12:30 a.m. the

youth officer spoke with respondent, telling her he was there to

protect her rights. He gave her food and informed respondent her

mother had been contacted. (Vol. II A28-33)

At 1:15 a.m. the Assistant State's Attorney spoke with

respondent. He advised her of her rights and took an oral

statement. At 5:15 a.m. a court reporter took respondent's

statement. At 6:15 a.m. the statement was reviewed and signed. (Vol.

II A39-45)

The Assistant State's Attorney acknowledged that throughout the

statement the respondent's name Montanez was misspelled - Montrnez.

The name was also signed that way by respondent. Respondent signed

her name after the statement was typed with the incorrect spelling.

Dillon did not discuss the spelling with respondent when they

reviewed the statement. He assumed it was the correct spelling.

(Vol. II 51)

Detective Halvorsen, the youth officer and the Assistant State's

Attorney testified they were not aware that respondent's mother had

come to the police station and was trying to see her daughter. (Vol.

IIA 17,35,47-48)

Mrs. Lorenzi testified that on prior occasions she had observed

her daughter under the influence of drugs and alcohol. When she saw

her that morning she appeared the same way. (Vol. II A64-65)_

Detective Halvorsen, the youth officer and the Assistant State's

Attorney testified respondent did not appear to them to be under the

influence of drugs or alcohol. (Vol. II A71,35,47)

Respondent did not testify at the hearing on the motion. At

trial! she testified she dropped out of school in the eighth

grade. (Vol. III E67) On the day of her arrest she had taken drugs

and alcohol. She was high. At the police station it was "like she

was walking around and did not know where she was going." (Vol. III

82-84)

Respondent acknowledged being shown her court reported statement

at the station, but she did not remember signing it. (Vol. III E85)

She stated she must have misspelled her own name on every page

because she was high. (Vol. III E110) She testified the statement

was not true. (Vol. III Elll) She gave it because she was scared.

(Vol. III E117)

Respondent admitted the police did not strike her. She stated

the police tricked her into giving the statement. They told her that

Marilyn (a co-defendant) was saying she (respondent) did it, and she

just went along with them. (Vol. III E107)

In denying the motion to suppress the trial judge ruled the

police made "a good faith effort" to notify respondent's mother of

her arrest. (Vol. IV AB) The trial judge stated: “the only real

issue is whether the mother was allowed access to the daughter at the

police station." The trial judge ruled adversely to respondent on

lunder Illinois law, evidence adduced both at a motion to suppress

and at trial can be considered by the appellate court in determining

the correctness of the trial court's ruling. (People v. Caballero

(1984), 102 I11.2d 23, 464 N.E.2d 223)

2

The Court's entire finding is appended hereto as respondent's

Appendix B.

Alii

this question, finding that: "The officers have testified that at no

time did she (the mother) request to see the defendant.” (Vol. IV

A8) Finally, the trial judge discounted Mrs. Lorenzi's testimony of

the "effects" of drugs and alcohol on her daughter. The judge ruled

that only respondent (who did not testify at the hearing) could

‘effects" of her drug and alcohol ingestion. In

testify to the

sum, the trial judge found the statement was voluntary. (Vol. IV A9)

The appellate court (one judge dissenting) ruled the trial

judge's finding was manifestly erroneous. The court disagreed with

the trial judge's conclusion that the police had made a "good faith"

effort to notify respondent's mother. 273 I1l.App.3d at 850 Also,

the appellate court showed that the trial judge's Finding that

respondent's mother did not request to see respondent was contrary to

the record. 273 I11.App.3d at 851 The Court concluded that under the

totality of the circumstances the interrogation of an isolated 15

year old throughout the night while the police actually obstructed

parental counselling resulted in an involuntary statement.

3 , ; . : :

Respondent s appellate court brief argued this ruling was in error

requiring a new hearing. This issue was not reached because of the

, appellate court's more fundamental ruling that a new trial is

required.

oo ee. eee

ea

7

i

REASON FOR DENYING THE WRIT

THE APPELLATE COURT FOUND THE STATEMENT INVOLUNTARY UNDER

THE TOTALITY OF THE CIRCUMSTANCES AXD DID NOT CREATE OR

APPLY A PER SE RULE.

Petitioner (following the dissent) asserts the appellate court

applied a per se rule that absence of a concerned adult renders a

juvenile'’s confession involuntary. Petitioner asserts that the

appellate court substitutes this incorrect rule for the correct

totality of the circumstances analysis. The appellate court,

however, explicitly denied application of a per se rule and

explicitly embraced the totality of the circumstances standard:

"The dissent mischaracterizes our decision by charging

that we apply a per se rule instead of a totality of the

circumstances test in determining the voluntariness of

defendant's confession. Our decision, however, is not

based solely on the fact that defendant was interrogated

without the opportunity to confer with a concerned adult.

Here, a juvenile defendant, age 15, was interrogated

throughout the night as part of a pattern of police

conduct designed to elicit a confession, as well as to

obstruct parental counselling. Under all these circum-

stances, the confession was not voluntary." 273 I1l.App.3d

at 855

Petitioner asserts this language of the appellate court is a

subterfuge designed to cloak its application of a per se rule.

Petitioner supports this charge by asserting the factors the

appellate court claims to rely on are not supported by the record.

(Pet. p.8) Review of the evidence shows that the factors relied on

by the appellate court are fully supported. Furthermore, additional

of record factors support the conclusion that under the totality of

the circumstances the confession was involuntary.

10

Respondent's mother testified that the police informed her of

her daughter's arrest at 10 p.m. She told the police she wanted to

see her daughter. The police told her not to come to the station and

that they would notify her when it was time for her to come. The

State did not call the police officer who spoke with respondent's

mother and her testimony is uncontradicted.

By statute Illinois requires prompt notice to the parent of a

minor taken into custody of the arrest and the place of confinement.

705 ILCS 405/5-6. The purpose of the statute is to permit the parent

to be with the child. (In re SDS (1982), 103 I11.App.3d 1008,1012 431

N.E.2d 759) The trial judge ruled the police had complied with the

statute. The appellate court found the trial judge in error,

stating: "These circumstances demonstrate the intended fulfillment of

notice here was simply a tragic charade." 273 I11.App.3d at 850

Failure of notice (or a "tragic charade”) is a factor in a totality |

of the circumstances analysis weighing against voluntariness. (People

v. Travis (1984), 122 I1l.App.3d 671, 678, 462 N.E.2d 654)

Respondent's mother waited until 2 a.m. the next morning, but |

received no word from the police that it was time for her to come.

Desperate, she disobeyed the police admonishment and went to the

station. Upon arrival, and on numerous occasions thereafter, she

requested to see her daughter. Each time she was refused. Finally,

at 8:30 a.m., after the police had secured a court reported

statement, she was allowed to see her child.

The State chose not to call the desk sergeant or other officers

with whom respondent's mothei interacted. The officers who were

interrogating respondent testified they were "unaware" of the

ll

mother’s presence at the statio... They did not testify (nor, being

unaware, could they) that she did not ask to see her daughter.

The trial judge in denying the motion to suppress, found: "She

[respondent's mother] arrived sometime after the arrest and the

officers have testified that at no time did she request to see

defendant.” No officer so testified. The appellate court properly

found the trial court's finding was erroneous. 273 I1l.App.3d at 85l

Failure of the police on duty to notify the interrogating officers of

the presence in the station of a minor's mother is a factor to be

considered in evaluating the voluntariness of a confession. (People

v. Brown (1989), 182 I1l.App.3d 1046, 1054, 538 N.E.2d 908)

Contrary t> petitioner's assertion the record fully supports the

appellate court's finding the 15 year old "was interrogated

throughout the night as part of a pattern of police conduct designed

to elicit a confession, as well as to obstruct parental counselling."

Petitioner seeks to downgrade the importance of respondent's age

as a factor in determining voluntariness by quoting the trial judge

as saying that respondent was “a little more sophisticated than the

average 15 year old." (Pet. pp. 7,14) The full quote, however, shows

this finding is at best a two edged sword.

The motion to suppress stated that respondent "had ingested

drugs and alcohol prior to interrogation and was therefore mentally

impaired." (RC 42) At ‘the hearing respondent's mother testified

respondent appeared to be under the influence of drugs and alcohol.

In denying the motion the trial judge stated: "As far as the alcohol

and drug ingestion, which is alleged in the motion on behalf of Ms.

Montanez, that is an indication to me she is a little more

12

fr

sophisticated than an average 15 year old The trial judge goes

on to rule that only respondent (who did not testify at the hearing),

could testify as to how her will was effected by the ingestion, and

that he would not accept he mother's interpretation of the "effects"

of respondent's having taken drugs and alcohol. (See, trial court's

finding attached as Respondent's Appendix B.)

The judge's deduction of “sophistication” from evidence of a 15

year old's drug and alcohol abuse, without even having heard the 15

year old testify, is entitled to little weight. But more important

is the fact that while the judge refused to consider the evidence of

the "effect" on respondent of ingestion, the judge accepts the

evidence that on the night of her arrest defendant had indeed

ingested drugs and alcohol. (After all. it is on this fact that the

judge bases his finding of “sophistication."’) This evidence, that

this 15 year old girl when arrested had taken drugs and alcohol, is a

compelling factor supporting the conclusion that under the totality

of the circumstances the confession is involuntary. Moreover, it is

a factor underlined and supported by respondent's trial testimony.

Respondent testified that she is an eighth grade dropout who was

high on drugs and alcohol when the police arrested her on the

street. She stated that at the police station it "was like she was

walking around and did not know where she was going." She explained

misspelling her own name by the fact that she was high and, while

admitting the police did not strike her, stated she adopted the false

confession because she was “scared.” All of this evidence - the

trial judge's finding that respondent had taken drugs and alcohol and

respondent's evidence of the effects of that ingestion - supports the

13

-

appellate court's conclusion that under the totality of the

circumstances the confession was not voluntary.

The police kept a 15 year old girl isolated from the time of her

arrest at 9 p.m. until the following morning at 8:30 a.m. During

this time the minor was three times interrogated. Also during this

time.the minor's mother was first told not to come to the station and

when she came anyway was not allowed to see her daughter. This

combination of obstructions demonstrates a pattern of obstruction.

It is clear the police intended to and succeeded in keeping this 15

year old girl isolated from parental counselling until after a full

written confession was secured and signed. Such obstruction by the

police is a material factor in judging the voluntariness of a

confession. (People v. Knox (1989), 186 I11.App.3d 808, 542 N.E.2d

910)

The factors the appellate court stated it relied upon are real

factors, fully supported by the record. The record also contains

additional factors supporting the court's conclusion. Moreover, the

opinion shows the appellate court was also fully aware of the

countervailing factors.

The appellate court's opinion recognizes that respondent

received Miranda advisements, that respondent testified she was not

hit by the police, that there was evidence she was fed and that

state's witnesses testified she was coherent and did not appear to be

under the influence of drugs or alcoho]. 273 I11.App.3d at 845-46

These factors are noted in the opinion and were considered by the

court. But, applying a totality of the circumstances analysis, the

court found they were overcome by the factors detailed above: that

14

respondent was 15; that she confessed without conferring with a

concerned adult; that she was questioned throughout the night; and

that the police engaged in a pattern of active obstruction of

parental counselling. Additionally, the evidence that respondent had

ingested drugs and alcohol, was an eighth grade dropout and confessed

because scared, supports the appellate court's ruling.

Given the existence of these factors and the court's explicit

embrace of the totality of the circumstances standard, all petitioner

is really complaining about is the court's calculation and

conclusion. This is primarily a factual question, without

application beyond the facts of this case. This assessment is

supported by the Illinois Supreme Court's denial of petitioner's

request for review.

The Illinois Supreme Court has long looked to the "totality of

the circumstances" to determine the voluntariness of any confession.

(People v. Nemke (1962), 23 I11.2d 591, 600, 179 N.E.2d 825) It has

stated: "The determination of the question whether or not a

confession is voluntary depends not on any one factor, but upon the

totality of all the relevant circumstances." (People v. Johnson

(1970), 4 I11.2d 463, 468, 256 N.E.2d 343, 347, cert. denied (197C),

400 U.S. 958, 27 L.Ed.2d 266, 91 S.Ct. 356) This standard applies to

statements of juveniles as well as to those of adults. (People v.

Prude (1977), 66 I1l1.2d 479, 475, 363 N.E.2d 371, 373. Cert. denied

(1977), 434 U.S. 930, 54 L.Ed.2d 291, 98 S.Ct. 418.) Further, the

court has specifically held that absence of a parent does not per se

render a minor's confession involuntary. (People v. Zepeda (1970), 47

15

711.246 23, 265 8.E.2d 647; People v. Steptore (1972), 51 I11.2d 208,

281 N.E.2d 642)

Petitioner in this cause requested review by the Illinois

Supreme Court of the appellate court's decision claiming that the

appellate court had rejected the totality of the circumstances

approach and adopted a per se rule. The Illinois Supreme Court

declined review. Considering the clear, long standing and directly

on point holdings of the Illinois Supreme Court, had the appellate

court so deviated review would have been allowed.

All parties to this case - the Illinois Supreme Court, the

appellate court, petitioner and respondent - agree that there is not

a per se rule barring the admission of a juvenile's statement

obtained without parental presence. All also agree the proper

standard for determining voluntariness is totality of the

circumstances. With every one on the same side granting the petition

would serve no purpose.

CONCLUSION

For all the foregoing reasons, the Respondent respectfully prays

that this Honorable Court deny the instant petition for Writ of

Certiorari.

Respectfully submitted,

RITA A. FRY

Public Defender of Cook County

200 West Adams, 9th Floor

Chicago, Illinois 60606

(312) 609-2040

Counsel for Respondent

JAMES H. REDDY*

€ Chief, Appeals Division

IRA CHURGIN

Assistant Public Defender

Of Counsel.

* Counsel of Record.

A. Appellate Court's Opinion: People v. Montanez (1995), 273

I11.App.3d 844, 652 N.E.2d 1271

B. Trial Judge's Finding Denying Respondent's Motion to

Suppress

NAN BEE

es ot

273 Ill. App. 3d 844

The record indicates that the circuit court considered all televant

circumstances in fashioning the sentence and may well have

sentenced defendant to a longer term in prison. There was no abuse

of discretion in sentencing.

For the reasons set forth above, the conviction and sentencing of

defendant must be affirmed.

844 People v. Montanez

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAC-

QUELINE MONTANEZ, Defendant-Appellant.

First District (2nd Division) No. 1—93—4619

Reversed and remanded.

Opinion filed June 30, 1995.

CRIMINAL LAW—cause remanded for new trial where ongoing inter-

rogation of juvenile was part of pattern of police attempts to elicit confession

without prior parental counselling. Although the police detective investigat-

ing a double murder made a cursory attempt to obtain a youth officer and

notify the juvenile defendant's parent after her arrest, the officer's efforts did

not constitute the required good-faith effort to give reasonable preinterroga-

tion notice, where he immediately commenced the interrogation without

awaiting the arrival of the youth officer or following up on whether the

mother had been contacted and was at the station to confer with her daugh- ‘#

ter, so that under the totality of the circumstances showing a pattern of

improper police conduct, neither the initial statement taken from the daugh-

ter without the benefit of any concerned adult nor the subsequent signed -

confession taken in the presence of the youth officer while the mother was °

unsuccessfully pleading with the desk sergeant to see her daughter could be

considered voluntary, and the trial court's failure to suppress the confession

required reversal of the convictions for the murder of two men and the

sentence of natural life in prison and remand for a new trial was ordered.

DiVITO, J., dissenting.

Appeal from the Circuit Court of Cook County; the Hon. John J. Man-

nion, Judge, presiding.

273 Ill. App. 3d 844 People v. Montanez 845

Rita A. Fry, Public Defender, of Chicago (Ira Churgin, Aasistant Public

Defender, of counsel), for appellant.

Jack O'Malley, State’s Attorney, of Chicago (Renee Goldfarb and James

Fitzgerald, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HARTMAN delivered the opinion of the court:

A jury found defendant, Jacqueline Montanez, age 15 at the time

of the offenses, guilty of the murders of Hector Reyes and Jimmy

Cruz. She was sentenced to natural life in prison. She challenges the

voluntariness of her confession and the voir dire of prospective jurors.

Defendant moved to suppress her statements as involuntary

because (1) she was not first informed of her Miranda rights or (2)

that she would be tried as an adult; (3) her mental state and inges-

tion of drugs and alcohol made her incapable of understanding her

rights; (4) the statements were procured by material misrepresenta-

tion; and (5) the statements were taken before she had access to a

youth officer or her parents.

At the suppression hearing, Chicago police detective Ernest Hal-

vorsen testified that on May 13, 1992, at 9 p.m., he and his partner

Detective Renaldo Guevara, arrested defendant on the street for the

May 12 murders of Hector Reyes and Jimmy Cruz. He knew defen-

dant was a juvenile. She was taken to the Area Five police headquar-

ters and placed in an interview room, where Halvorsen informed her

of her Miranda rights and that she could “possibly” be charged as an

adult. Defendant indicated that she understood these rights.

Detective Halvorsen asked that a police squad car from the 14th

District be sent to defendant's home in an attempt to locate her fam-

ily. Detective Guevarn later told him that defendant's mother had

been contacted, but said she would get. to the police station as soon as

she could. Halvorsen was unaware that defendant’s mother was at

Area Five or had not been allowed to see defendant.

After the arrest, Detective Halvorsen attempted to contact a

youth officer. The youth officer on duty in an adjoining station at

that time was busy. Halvorsen did not check again to see whether

the youth officer later became available. An Area Five youth sergeant

informed him that no Area Five youth officer was then available ei-

ther, but that he would send the first available officer, who was to

come on duty at midnight.

Nevertheless, at about 10 p.m., Detective Halvorsen began to

question defendant. No youth officer had yet appeared. Ile again read

her the Miranda warnings. She responded that she underatood each

of her rights and would make a statement. He had a 20- to 30-minute

conversation with her and then left her alone in the interview room.

~é

846 Pecple v. Montanez 273 Ill. App. 3d 844

Youth officer Robert Pulia and Assistant State’s Attorney (ASA)

John Dillon arrived a little past midnight. Detective Halvorsen told

Pulia the facts of the case. Later, at about 12:30 a.m., Pulia had a

private conversation with defendant. He knew detective Halvorsen

already had taken a statement from her. He advised her of her Mi-

randa rights anyway, informed her that he was a youth officer, he

was present to protect her rights, and he would observe how she was

being treated. Pulia told her that her mother had been contacted,

based upon what he was told. Pulia was present for the next three

conversations Detective Halvorsen and ASA Dillon had with defen-

dant, at 1:15 a.m., 5:15 a.m., and 6:16 a.m.

At 1:15 a.m., ASA Dillon told defendant who he was. She said she

understood. Dillon advised defendant of her Miranda rights and that

she would be treated as an adult, which defendant again stated that

she understood. She then spoke to Dillon for about 20 to 30 minutes

and agreed to make a statement in the presence of a court reporter.

She was given food. Alone with Dillon, defendant told him that she

had been treated well and had no complaints.

At 5:15 a.m., a court reporter took defendant’s statement, upon

ASA Dillon's questions, which was transcribed at 6:15 a.m., and

reviewed by Dillon and defendant. Dillon had defendant read a couple

of sentences out loud, to make sure she could read and understand -

English; then he read the rest of the statement to her. Defendant

made corrections where appropriate and signed the statement. Dillon

saw no one in a waiting area in Area Five headquarters. He did not

know that anyone was asking to speak with defendant.

According to Detective Halvorsen, Officer Pulia, and ASA Dillon,

defendant did not appear to be under the influence of alcohol or

other drugs during their conversations with her. They smelled no

alcohol or other drugs. Defendant was sober and coherent, and

understood and answered all questions asked of her. Defendant did

not state that she was high or under the influence of alcohol.

Defendant's mother, Sandra Lorenzi, testified at the suppression

hearing. On May 13, 1992, at 10 p.m., she and her husband were at

home. Two police detectives came there and first told her that defen-

dant had witnessed a murder and was in protective custody. She

asked to see her daughter. The detectives told her that she could not

at that time because they had her in custody. One officer told her

that he would let her know when she could see her daughter. Before

they left, however, the officers informed her that defendant was

involved in a murder.

Lorenzi waited for the police to call. They did not. At about 2

a.m. she nevertheless went to the police station, where she was told

273 Ill. App. 3d 844 ast

to wait in a waiting room. Instead, she went upstairs i

sent her back downstairs. She waited about an om ert

then went back upstairs. The detective told her to “get the hell out”

of there because the police were talking with her daughter. She went

back upstairs every hour or so. She was not permitted to see defen-

dant until about 8:30 a.m., when she and a friend were allowed into a

room to see her. Defendant appeared to be “gagging,” and her eyes

were bulging. She had seen defendant on alcohol and other drugs

before, and defendant appeared the same way. It was difficult to

understand defendant. She did not appear to recognize her mother

Lorenzi believed defendant was on drugs or alcohol that morning Af.

ter about five minutes, Lorenzi was told by police to leave.

Following argument, the court denied defendant's motion to sup-

press, finding that the police “exercised a good faith effort after the

defendant was arrested when they notified the mother of her

incarceration” and that the “only real issue is whether or not the

wey eee paciee sone to the daughter at the police station.”

grand jury indic efendant

murder pepe dhe arena on June 29, 1992, for first degree

t trial, evidence was adduced showing that on May 1

shortly after midnight, a witness heard laughing and iaacwaee

from an area in Humboldt Park near a park lavatory. Three women

were seen there, one of whom was taller than the other two, and two

men. The taller woman, later identified as defendant, was acen enter-

ing the ladies washroom with one of the men. A noise that sounded

like a firecracker was heard, and the taller woman emerged from the

washroom alone. The two shorter women were seen walking with the

second man. One went behind the man. A flash was seen behind the

second man, and he fell to the ground. The two shorter women ran,

= taller one kicked the body and ran in the direction of the other

People v. Montanez

Chicago police detective John Doian, at Humbold i

the early morning hours of May 12, 1992, observed As peg

Jimmy Cruz on the sidewalk and Hector Reyes in the washroom

Next to the body of Cruz he found a .25-caliber automatic shell cas-

ue 80 oye a bullet near Reyes.

- n May 1, 1992, at 11 p.m., defendant and two oth i

Mauri,” and “Tuti,” all members of the Disciples street wie yon

seen in a white car by Yvette Rodriguez. She declined to go with

them to do a “hit.” At 1 a.m., Rodriguez saw the same three young

women again, who told her that they had shot the guys. Defendant

said that she shot one in the head and back, pointing to the back of

her head.

848 People v. Montanez 273 Ill. App. 3d 844

Later that day, Rodriguez was arrested for possession of a con-

trolled substance; she had been arrested earlier on a drug charge,

which was still pending. While at the police station, Rodriguez

claimed that she knew about the double murder. She drove around

with the police looking for defendant, Mauri and Tuti. The next day

she went with the police to a funeral home in an undercover van.

She pointed out defendant and Mauri at the funeral, both of whom

were arrested.

Detective Halvorsen testified that on May 13, 1992, at about 8

p.m., he was in an unmarked car at a funeral home in the area of Ar-

mitage and Kimball. He had the names of Loca D, whom he identi-

fied as defendant, and Mauri and Tuti. All three were members of

the Maniac Latin Disciples (MLD). The funeral was for a member of

‘ the MLD who had been killed a few days earlier. The witness pointed

out defendant and Mauri, and both were arrested. Halvorsen testified

concerning the taking of the statements from defendant, consistent

with his testimony at the hearing on the motion to suppress. Hal-

vorsen identified defendant in court as the person who made the

statements. ASA Dillon also testified as he did at the hearing, read-

ing to the jury defendant's signed statement as transcribed by the

court reporter. In the statement defendant confessed to shooting

Reyes in the lavatory and to giving the gun to Mauri, who then shot

Cruz on the sidewalk.

Following the introduction of related evidence, the State rested.

The court denied defendant's motion for a directed verdict.

Defendant's mother testified on her behalf as she did at the sup-

pression henring.

Defendant testified for the defense. Her nickname in the MLD

was Loca D, which meant Crazy Disciple. She used marijuana,

T-sticks, cocaine, and acid, and was hospitalized for an overdose in

1987. She also drank alcohol. Defendant was with Marilyn Mulero

(Mauri) getting high on May 11, 1992, at 5 or 6 p.m., when they met

Rodriguez. They joined her in her car and drove around, stopping to

buy drugs, and got high at about 7 p.m. Tuti joined them. Defendant

took five tabs of acid and began to hallucinate. The next thing she

remembered was seeing a gun at Humboldt Park. While they were

driving around, they had seen Cruz and Reyes in a car. There was no

plan. Cruz asked if they wanted to get high with him, and they fol-

lowed him to Humboldt Park. Defendant denied going into the

washroom with Reyes, contending instead that Rodriguez did so. She

opened the door and saw Rodriguez shoot Reyes. Rodriguez pointed

the gun at her and told her she had not seen or heard anything. Rod-

riguez then shot Cruz in the back of the head.

© e.

273 Ill. App. 3d 844 People v. Montanez 849

When defendant went to a funeral the next day, she was arrested,

She had been drinking alcohol and smoking echoes can She had ari

used cocaine and T-sticks, and drunk hard liquor. She remembered

being shown her statement, transcribed by the court reporter at the

police station, but did not remember signing it. The police made her

confess, and her statement was not the truth. She misspelled her

up or strike her. She received food, soda, and cigarettes. She confessed

because she was scared and tricked by the police. The defense rested.

The jury found defendant guilty of the murders of Cruz and

Reyes. She was sentenced to the mandated term of natural life in the

custody of the Illinois Department of Corrections. She appeals.

Defendant first asserts that the circuit court erred in denying her

motion to suppress her confession whore the evidence shows that she

was denied access to a concerned adult. She argues that failing to

have either a youth officer or a parent present is material to

determining the voluntariness of her statement since she was a

minor.

The facts in this case make it abundantly clear that defendant

had undergone Police questioning and confessed prior to seeing ei-

ther a youth officer or her mother. Later, other police interviews

were undertaken even while the mother was at the police station

asking to see her 15-year-old daughter, but was kept from her. It is

not a sufficient answer to say that since defendant later was tried as

an adult, meaningful notice need not have been given and consequen-

tial protections need not have been afforded her.

The investigating officer, Detective Halvorsen, testified defendant

arrived at Area Five at 9:30 p.m. He asked others to notify her

mother between 9:30 and 10 p.m. One youth officer on duty was busy;

he made no effort to recontact her. The Area Five youth sergeant

told him no one else was then accessible and that the first person

available after midnight would be assigned. Nevertheless, Halvorsen

began interrogating defendant minutes later, at 10 p.m.

Detective Halvorsen requested the 14th District to send a squad

car to defendant's home, which was in that district. He did not pursue

his request and did not personally know if it had been followed. At

midnight, Halvorsen’s partner, Detective Renaldo Guevara, told him

that defendant's mother had been “contacted.” ‘The police subjected

defendant to the same routine questioning as they would have a

criminal suspect without special regard for age or parental precon-

fession counselling. The youth division was contacted, yet no youth

officer conferred with her Prior to police interrogation. She had al-

ready given one atatement to Halvorsen before the youth officer saw

850 People v. Montanez 273 Ill. App. 3d 844

her for the first time at 12:30 a.m. Courts must be particularly care-

ful in cases involving juveniles because “the coerciveness of a situa-

tion is thereby enhanced.” People v. Cole (1988), 168 Ill. App. 3d 172,

179, 522 N.E.2d 635, appeal denied (1988), 122 Ill. 2d 582; cert. denied

sub nom. Holman v. Illinois (1989), 489 U.S. 1021, 103 L. Ed. 2d 203,

109 S. Ct. 1143.

The facts in this case demonstrate the danger of cursory applica-

tion of principles to facis. What “reasonable notice” was given here?

Sandra Lorenzi, defendant’s mother, testified that the police came to

her home at about 10 p.m. They first told Ms. Lorenzi her daughter

had witnessed a murder. Later in this conversation, they told her the

daughter was involved in a murder. Without contradiction, Ms.

Lorenzi testified to the following: she immediately told the police she -

wanted to go to the station. The police told Ms. Lorenzi not to come

and that they would call her when it was time for her to come. The

call from police never came. At 2 a.m., when Ms. Lorenzi became

desperate, she went to the station on her own. The fact that the po-

lice told Ms. Lorenzi not to come and did not threaten her if she did

come does not change that fact that the police psychologically and ef-

fectively prevented Ms. Lorenzi’s visit to her daughter until after all

the questioning was completed and the confession was taken.

It takes little mental effort to understand the reluctance of a par-

ent to disregard a police directive, to stay at home until police called

her. To say that this evidence clearly establishes that the police

made a “good faith” effort after defendant was arrested when they

notified defendant’s mother of her arrest makes a mockery of the

concept of “reasonable notice.” “Notice” here must be understood to

have some purpose, namely, to allow, where possible, the concerned

adult to confer and counsel with the juvenile before interrogation

and confession. Yes, an attempt was made to contact a youth officer

before the statement was taken; but the interrogation went forward

anyway, within minutes. And yes, the parent here was “notified,” but

in the same breath she was told she could not see her child until

called. These circumstances demonstrate the intended fulfillment of

notice here was simply a tragic charade. See generally People v.

McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33.

As previously mentioned, Ms. Lorenzi testified that by 2 a.m. she

was desperate, and although the police had not contacted her as

promised, she nevertheless went to the police station, spoke to the

desk sergeant, and was again told to wait. Instead, she went to an

upstairs area of the station and spoke to a Spanish-speaking detec-

tive who had come to her house. He also told her to wait downstairs.

She waited in the station for another hour and one-half. Nobody

273 Ill. App. 3d 844 People v. Montanez 851

contacted her. She went upstairs agai

" gain. The same Spanish-

ae told her to “get the hell out” of there <beait rr pes

ing to defendant. Several times more she unsuccessfully trtod Aa

see her daughter. Eventually, at 8

J 4 :30 a.m. i

for counselling, she was era a eg ae —aa

According to the record

= the Spanish-speaking detective to whom she had spoken. No

pres even potentially in a position to contradict Mg ‘Lo vn

— 0) 7 State in this aspect of the case ae

ective Halvorsen, who was constant] wi

i 7 y with def :

—— — who was with defendant most of the Siese' gene ae

= my ry fae Dillon, who was with defendant from about 1:15

- Pes id tify. They, however, were in no position to contradict

ats ory because they claimed they were not “aware” she w

~_ p* A — ee The circuit judge correctly found

er arrived sometime after the a : j

ee or spt that the officers testified chet ac

see her i i

eae ee st mi In fact, no oflicer testified that Ms.

th ee ”

ey were not “aware” of her request. On almost identical facts

then writing for a unanim

ous appellate i i

Brown (1989), 182 Ill. App. 3d 1046, 1063-64, 638 Nad oon 7

Ss Brown 8 mother testified that she arrived at heen 6 late in th

: — around 7 o'clock on December 23. It is a reasonable inft :

ee wed testimony of the State’s witnesses that they wan

are of her presence at Area 6 until th d i

rogation of Brown at about 8:30 wr the ek a

‘30 p.m. However, the fact th

assistant State's Attorney and poli i osuaeniell

t police oflicers who

mio = one know of his mother’s silanes ot hae

ien avoid the obligation to allow a

parent to see hi

=n a pst — the parent has indicated an Pavgsae: he

€ police station. Under such circu

officers who know of the parent's Scot

presence have an affi [

to inform those actually questioning a j 1 parse oh :

Kk a juvenile of th 4

— and request to see her child. And, in soaring page yor

ay ta 4 @ statement, those actually questioning the’ hen

ave an affirmative duty to atop the estioni

Parent to confer with her child.” Ginphashs adicaY —_—o

852 People v. Montanez 273 Ill. App. 3d 844

, the alleged “notice” given here was vacuous. Defendgnt 8

aman were ans before atten eae ie hee

to questioning, with an adult demonstrati _— Lo Sige

mother, who was present at the station for 0

sven ee is “material to determining the ge of

[a minor] defendant's statement.” People v. Knox (1989), a ~ App.

3d 808, 815, 542 N.E.2d 910 (Knox); People v. R.B. (1992), . App.

7 N.E.2d 879.

” = anos, detentont’s convictions were reversed enege _

confession should have been suppressed on his motion. — —

also age 15, was arrested at his home at 9:15 p.m. His - sd —

then at home and he was told he could accompany his * 4 —

tion, but the father could not because he was caring - is : er

younger children. Defendant arrived at the station at 9:3 a yy

the present case, the arresting officer notified the police youth ge

sion of Knox's presence between 9:45 and 10 p.m., but no ape

ficer appeared. As also asserted in the instant case, Knox was - vis

of his rights and stated he understood them. Starting about re ~

Knox had a 45-minute interview with the police, during rem e

admitted his involvement in the crime. An assistant State’s —

was notified. At 1:45 a.m., the assistant State H Attorney again a ‘

vised Knox of his rights. Knox repeated his confession. His oe

was reduced to writing and was read and signed by Knox at 2: :

a.m., after Knox made and initialed corrections in the payrony '

read it once to himself and again when it was read aloud a im by

the assistant State’s Attorney. Knox, 186 Ill. App. 3d at 809-13. .

Knox's mother testified that she was not home when the po a

came. When she arrived home at 9:40 p.m., she learned her wig iners

been arrested and went to the station, arriving there at abou bog

p.m. She identified herself at the desk and was told to ory

p.m., a detective told her that her son had already confessed, t at “

assistant State’s Attorney would og a and that she mig

me. Knox, 186 Ill. App. 3d a ;

5 yy cima the parents and the youth division were — !

Knox’s arrest and presence in the station. The appellate court a

the fact that neither was actually present during defendant 8 con -

sion required suppression, first, because Knox's father » nen

to accompany his son was an “empty” one due to his pomnet i y

for the other children (Knox, 186 Ill. App. 3d at 813) and, yo , un

contredicted testimony given by his mother established that ——_

lice contributed significantly to eliminating any opportunity 7 en

dant had from speaking to his mother al the police station.” { —

186 Ill. App. 3d at 813-14.) Considering this evidence, the court stated:

273 Ill. App. 3d 844 People v. Montanez 853

“We do not believe such conduct by police is consistent with the

great care required where a juvenile's incriminating statement is

received. A‘ worst, the police purposely precluded defendant's

mother from contact with defendant by neglecting to see if

defendant's mother had arrived until after such time as defendant

had completed his confession. At best, the police simply subjected

defendant to the same routine questioning of a criminal suspect

without special regard for his youth, Either scenario is impermis-

sible and casts some doubt over the voluntariness of defendant's

statement.” (Emphasis added.) (Knox, 186 Ill. App. 3d at 814.)

The same conclusion is compelled by consideration of the evidence in

the instant case.

Here, the ongoing interrogation was part of a pattern of police at-

tempts to question the minor without prior parental counselling.

This pattern of conduct started when the police, already interrogat-

ing defendant, told the mother not to come to the station; the pattern

continued when the mother, desperate to see her daughter, neverthe-

less came, only to be obstructed from communicating with her daugh-

ter until after statements were made, reduced to writing, and signed.

Juveniles possess the same constitutional privilege against self-

incrimination as adults; and when juveniles are unaided by counsel,

great care “must be taken to assure that the admission was volun-

tary, in the sense not only that it was not coerced or suggested, but

also that it was not the product of ignorance of rights or of adoles-

cent fantasy, fright or despair.” (Jn re Gault (1967), 387 U.S. 1, 55, 18

L. Ed. 2d 527, 661, 87 S. Ct. 1428, 1458.) Further, special care must be

taken in scrutinizing the record where a juvenile is involved, since

juveniles could be “ensy victim|s] of the law.” Haley v. Ohio (1948),

332 U.S. 5696, 699, 92 L. Ed. 224, 228, 68 S. Ct. 302, 303-04; People v.

Travis (1984), 122 Ill. App. 3d 671, 674, 462 N.E.2d 654.

In another factual setting similar to the present case, People v.

R.B. (1992), 232 Ill. App. 3d 583, 592-93, 597 N.E.2d 879, the appel-

late court held:

“Juvenile confessions are to be carefully reviewed to ensure

that they are voluntary and not coerced, suggested, or the product

of a juvenile’s ignorance of rights, his adolescent fantasy, fright or

despair. (People v. Holcomb (1989), 192 Ill. App. 3d 158, 548 N.E.2d

613; People v. Racanelli (1985), 132 Ill. App. 3d 124, 476 N.F..2d

1179.) The teat is whether, under the totality of the circumstances,

the statement was made freely, without compulsion or induce-

ment of any sort (Haynes v, Washington (1963), 373 U.S. 503, 10 L.

Ed. 2d 613, 83 S. Ct. 1336), with consideration given to the

characteristics of the accused and the details of the interrogation,

(Schneckloth v. Bustamonte (1973), 412 U.S. 21, 36 1.. Ed. 2d 864,

93 S. Ct. 2041.) Considering the totality of the circumstances, and

. 3d 844

854 People v. Montanez 273 Ill. App

jar to incrim-

th officer or parent pridr

| ly the absence of a you y meee

a conclude that the trial court tp ea

defendant's motion to suppress his statement and qu

This court has stated that the failure to —— poe

defendant's parents, or the absence of a parent | ur y smn

sy factor in determining voluntariness, but is not de e

io yp pe orden defendant's confession should oo — >

nec v. Stachelek _~ mete gy peyote

21 Ill. App. ; .E. ie

pee vay red mwe to take appropriate steps to ensure we ~

- ‘ile defendant had an opportunity to confer with an in - se

dull ith ra parent or a youth officer, this court has he a

* ~ lice stir rendered his confession rpneay er —

Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910. (Emphasis

In aft J.O. (1992), 231 Ill. App. 3d 853, 855, 596 oe yet

ther case involving similar facts, the appellate court ae is

sriaiss “A juvenile’s age and the fact that the interrogation pera th

the middle of the night may properly be aaa - Note —_

the voluntary nature of a confession. (Haley v. -* npn bows

S. 696, 92 1. Ed. 224, 68 S. Ct. 302.) i —

vaca indicated an interest by their presence, pes veda rea

allowed to confer with their children before any ques ee

ll as be present when any questioning occurs. » .

1982 103 Ill. App. 3d 1008, 431 N.E.2d 759.) The presen :

poe fa arent is a factor in evaluating the voluntary ‘+ a

writ under the totality of the circumstances 09 ne :

S.D.S. (1982), 103 Ill. App. 3d 1008, 431 N.E.2d 759." (Emp

In range sub judice, not only oo shntet S a

i ity ti fer with a concer >»

ses rota omg adap Barer y fi rustrated by police. ne <9

tor on terial” in determining the voluntariness of defen “7 -

prvtinvens (Knox, 186 Ill. App. 3d at 815; R.B., 232 lll. App.

' ourt concluded: ;

aia aoe ea the failure to have a juvenile wm gr

terial to determining the voluntariness of defen re bene

Pe t. That fuilure, in view of the failure to permit — —

pao an opportunity to see her son at the police ener! ~ehe ye

paste of his only chance to consult with any pe hen ne

in hia welfare prior to making a statement. Such is in —

sensitivity to be accorded to receipt of a minors statement.

e:: untariness of a confession

273 Ill. App. 3d 844 People v. Montanez 855

We therefore reverse defendant's convic

matter for a new trial.”

at 816-16.

The same result is r

characterizes

instead of a to

tions and remand the

(Emphasis added.) Anox, 186 Ill. App. 3d

equired in the instant case. The dissent mis-

our decision by charging that we apply a per se rule

tality of the circumstances test in determining the vol-

untariness of defendant's confession. Our decision, however, is not

based solely on the fact that defendant was interrogated without the

opportunity to confer with a concerned adult. Here, a juvenile defen-

dant, age 15, was interrogated throughout the night as part of a pat-

tern of police conduct designed to elicit a confession, as well as to

obstruct parental counselling. Under all these circumstances, the

confession was not voluntary. That defendant was tried as an adult is

after the material fact.

Notwithstanding the strong evidence of defendant's

case, reversal is mandated on principle and a new trial j

reasons set forth above.

Since this case must be retried, other

error need not be considered here.

guilt in this

8 ordered for

assignments of alleged trial

Reversed and remanded for a new trial.

McCORMICK, J., concurs.

JUSTICE DiVITO, dissenting:

The majority judg

. well-established Ilinvi

The majority errs

judge's ruling on a m

versed unless it is co

and (2) it ignores the

ment in this case cannot be reconciled with

8 law. I therefore respectfully dissent.

because (1) it ignores the standard that a trial

otion to suppress a confession should not be re-

ntrary to the manifest weight of the evidence,

standard that the voluntariness of a confession

is determined by the totality of the circumstances and that not hav-

ing either a parent or a youth officer present for a juvenile’s confes-

sion is merely a consideration which does not automatically render

that confession inadmissibic.

I. STANDARD OF REVIEW

“The established standard of review of n trial court's finding on a

question of the voluntariness of a confession is whether the finding is

contrary to the manifest weight of the evidence." (People v. Melock

BY (1992), 149 Ill. 2d 423, 448, 599 N.E.2d 941, 951.) Our Aupreme court

m has repeatedly stated that "(t]he finding of the trial court on the vol-

will not be disturbed unless it can be said

|

all

856 People v. Montanez 273 Ill. App. 3d 844

that it is contrary to the manifest weight of the evidence.” (People v.

Davis (1983), 97 Ill. 2d 1, 20, 452 N.E.2d 525, 534.) This standard of

review applies to a trial court's ruling concerning the admissibility of

a juvenile's confession as well. Jn re Lamb (1975), 61 Ill. 2d 383, 388,

336 N.E.2d 753, 756, cert. denied (1976), 425 U.S. 938, 48 L. Ed. 2d

180, 96 S. Ct. 1672.

The majority pays no heed to this standard; indeed, it totally

ignores it despite its significant application in both People v. Brown

(1989), 182 Ill. App. 3d 1046, 638 N.E.2d 909, and Jn re J.O. (1992),

231 Ill. App. 3d 853, 696 N.E.2d 1286, cases upon which it relies and

which are discussed below.

The classic explanation of the application of the standard,

‘repeated numerous times by our courts, is provided in Jn re Applica-

tion of County Collector (1978), 59 Ill. App. 3d 494, 375 N.E.2d 553:

“In order for a finding to be contrary to the manifest weight of

the evidence, an opposite conclusion must be clearly apparent.”

Application of County Collector, 59 Ill. App. 3d at 499, 375 N.E.2d

at 557.

Application of this standard in this case would have mandated

affirmance, for it cannot be said that a conclusion opposite that drawn

by the trial judge is clearly apparent. As will be demonstrated below,

the trial judge's ruling was correct and the per se rule applied by the

majority is inconsistent with precedent and unjustified by Illinois

law.

Il. TOTALITY OF CIRCUMSTANCES STANDARD

Our supreme court has stated that “this court has long looked to

the ‘totality of the circumstances’ to determine the voluntariness of

any confession.” (People v. Prude (1977), 66 Ill. 2d 470, 475, 363 N.E.2d _

371, 373, cert. denied (1977), 434 U.S. 930, 54 L. Ed. 2d 291, 98 S. Ct.

418.) It has stated that "(t]he determination of the question whether

or not a confession is [voluntarily given] depends not on any one fac-

tor, but upon the totality of all the relevant circumstances.” (People

v. Johnson (1970), 44 Ill. 2d 463, 468, 256 N.E.2d 343, 347, cert. denied

(1970), 400 U.S. 958, 27 L. Ed. 2d 266, 91 S. Ct. 366.) This standard

applies to statements of juveniles as well na to those of adults. Prude, .

66 Ill. 2d at 468, 363 N.K.2d at 373; Jn re Lamb, 61 Ill. 2d at 388, 336

N.E.2d at 756.

Every Illinois court that has addressed the issue (Knox, discussed

below, being the single exception because it does not address the is-

sue) has applied the totality of the circumstances test and rejected

the per se rule regarding a minor's opportunity to consult with a par-

ent or other person before being questioned: Jn re Stiff (1975), 32 Il.

F, that a parent or a

oa youth officer be notifi

fy: Venile is charged as an adult, because

273 Ill. A d

: pp. 3d 844 People v. Montanez 857

i 3d 971, 978, 336 N.E.2d 619, 625 (cit

aresmetances” test, explicitly r

rule when parent is not notified

ficer); Jn re Bertrand (1978), 65 Il. App. 3d 703, 705, 382 N I°.2d 660.

! ing supreme court “totalit

ejected invitation to adopt per pi

App. 3d 1008, 1012, 431

Md ’ N.E.2d 759 . ¢

869, 74 L. Ed. 2d 128, 103 S. Ct. 189 (per oe 1 pried, 1982), 459 US

voluntariness of confessi

stances); Jn re J.S. (1984), 1 “th mg

412, 418-19 (totality of circumstances test

parent and youth officer merely a consider

untariness; juvenile’s con fessi

on properly admitted):

ents (1985), 136 Ill. App. 3d 1001, 1007-08, 482 NEOd ove gag

nied (1986), 476 US. 1106 ’ & 676, 680, cert.

ity of circumstances test applied; failure to noti

nile with below average IQ did not rend

tog A Dane (1986), 146 Ill. App. 3d 391, 402-03, 495 N.E

, ity of circumstances test applied; failure to aa

venile inadmissible; statute

interrogation”); Peop/ m police investigation and

548 N.E.2d 613 eople v. Holcomb (1989), 192 II. App. 3d 168

, 227 Ill. App. 3d 681, 692 NF

E.2d 301, ap.

» 602 N.E.2d 469, the court held that

705, 692 N.E.2d at 316.

Altho

ugh some courts have held that the statutory requirement

ed does not apply when a ju-

the juvenile ia not aubject to

to that of the criminal court

1071, 1084, 698 N.i2.2d 968

the jurisdiction of the juvenile court but

(People v. Sevier (1992), 230 Ill. App. 3d

978; People v. Green (1988), 179 Ill. App. 3d 1, 13 535 N.E.2d 413,

o bad, Or a EPA | ’

858 People v. Montanez 273 Ill. App. 3d 844

420, appeal denied (1989), 127 Ill. 2d 627, 545 N.E.2d 120; People v.

Visnack (1985), 135 Ill. App. 3d 113, 126, 481 N.E.2d 744, 753), most

courts addressing the issue, as indicated in the preceding two

paragraphs, hold that failure to comply with the statutory require-

ment is merely a consideration in determining admissibility of a

juvenile’s statements in either juvenile or adult proceedings. The

majority's decision here is not defensible under either line of cases.

In People v. Zepeda (1970), 47 Ill. 2d 23, 266 N.E.2d 647, in

construing the section of the Juvenile Court Act requiring parental

notification and surrender of the minor defendant to a juvenile of-

ficer, our supreme court held that the juvenile defendant's state-

ments in that case were properly admitted despite being taken out of

the presence of parents and a juvenile officer. The court held that

‘because the statements of the juvenile had been voluntarily given

and with due regard for his constitutional rights, “even if it be as-

sumed that there was a failure to reasonably comply with (the rele-

vant statute] and that such failure caused defendant to be unlawfully

detained,” those facts would not in themselves invalidate a confes-

sion. Zepeda, 47 Ill. 2d at 27, 265 N.E.2d at 649.

In People v. Steptore (1972), 51 Ill. 2d 208, 281 N.E.2d 642, the po-

lice concededly did not comply with Juvenile Court Act provisions

that required notice to a parent and surrender to a juvenile officer.

Nevertheless, our supreme court held that because the juvenile de-

fendant was told of his rights to silence and to have counse) present

and he understood them, “{uJnder the circumstances failure to comply

with [the relevant statute] did not render the statement inadmie-

sible.” Steptore, 61 Ill. 2d at 214-15, 281 N.E.2d at 645.

Illinois’ rejection of the per se rule is understandable. Although a

requested attorney must be present for custodial questioning, there is

no requirement—constitutional, statutory, or case law—that a par-

ent or youth officer be present for questioning of a minor. The statute

in question here' requires only the notification of a parent or guard: ,

ian and that the minor be taken to a youth officer. As our supreme

'The relevant statute rends as follows:

“A law enforcement officer who takes a minor into custody without

a warrant °** shall, if the minor is not released, immediately make a

reasonable attempt to notify the parent or other person legally

responsible for the minor's care or the person with whom the minor

resides that the minor has been tnken into custody and where the

minor is being held: and the law enforcement officer shall without un-

necessary delay take the minor to the nearest juvenile police officer

designated for such purposes in the county of venue or shall sur-

render the minor to a juvenile police officer in the city or village :

273 Ill. App. 3d 844

pty ee Beery in [the statute], or in any other provi-

nile Court] Act, imposes sanctions f. fai

comply and, under the rule lon sep ms

g adhered to by this court

a will not, of itself, invalidate a confession or rad po:

pense ae 47 -s 2d : 27, 265 N.E.2d at 649.) It is thus not

e well-established standard in Illinois i

violation of the statute is iderati pepe i lye:

Her -ceayt yi mabyraicad merely a consideration in weighing the

Interestingly, the majori it i

rt Jority does not say it is applyin

pn prove arn ge Ki a it twice says that the de pio so ma

nts mother to see defendant 6 ial”

determining the voluntarines iahelaaad Uae iee

8 of defendant's statement. (27

pu od ~ aman 854.) If “material” is code for per se, the Pinte

oe ough incorrect, is at least logical. If “material” is merel

rip ive of the kind of “consideration” the evidence merits the

—— 8 oe cannot be justified. one

n reaching its judgment, the majority j

, : » th y ignores every case cited j

comer yt fo ae er it a the ssall-onbalidtaheed ae

ses. Inexp icably, it also ignores the f,

= depeche yer while arguing for suppression of the fear tng

pie , gt maps wl invoked the totality of circumstances test and

e absenc ’

merce ye me > eon mother and a youth officer

People v. Montanez 859

III. DETERMINATION OF VOLUNTARINESS IN TIIIS CASE

- - (a) The Evidence

a ih ee ~e is critical in applying the correct Atandards to a

as this. For that reason, a summary of the relevant

where the offense is alleged to h ”

: Cites tae cK ave been committed.” 705 ILCS 405/

ma Pea my = phy pe mneot ey denies applying a

, . ) For the first time in its

iy in Precrce 9 with this denial, does the majority concede the ee

on a - the totality of the circumatances teat in determining the

mK, defendant's confession.” (273 Ill. App. 3d at 855.) Th

ee oo basis for finding the atatementa involuntary ithat ps

— Po thee rong oa pa a part of n pattern of police

licit nfeasion”) (273 Il, App. 3d at 865) j

opie donee te in a to the trial judge's findings. ‘Sato , no

! ng more than the per re rule bolatered | lus

gatements designed to comply with the totality of ham,"

hoe eh dit et) Lee Se ee B fouls sian

eo ed eh ow Ww ted

860 People v. Montanez 273 Ill. App. 3d 844

i i ial follows. People v.

i t the suppression hearing and at tria

King (1980), 109 Ill. 2d 614, 525, 488 N.E.2d 949, 955, cert. denied

(1986), 479 U.S. 872, 93 L. Ed. 2d 173, 107 S. Ct. 249 (on review, evi-

dence presented at trial may be considered in addition to evidence

t suppression hearing).

agg gr Hisham hearing, four witnesses testified: Detective

rsen, youth oflicer Robert Pulia, and Assistant State's

ro eiag ge for the State; and Sandra Lorenzi, defendant’s

t.- . .

gay iw nell testified that he contacted the 14th ~—

and requested that a beat car go to the home of yr pes ogee

to tell her that defendant was at Area 5. Each of 7 , : vb theres

nesses testified that he or she had been informed tha oe —-

mother had been notified of defendant’s arrest. Detective Ha

testified that between 9:30 and 10 p.m. he learned that the you sel

ficer from the 25th District was otherwise occupied and ma —

5 youth officer would not be available until midnight. oe - :

not handcuffed. The State’s witnesses testified that ae _ ~

sober and coherent, did not appear under the influence o drugs .

alcohol, did not smell of drugs or alcohol, understood questions, —

was responsive to them. Each of the three State witnesses, at vpia °

times, gave defendant Miranda warnings at least once; on each = '

sion defendant said she understood her rights. She pt

cigarettes. She asked for and was given a soda; later she = bn

and was given food. She privately told the assistant State's my

that “she had been treated well and she had no complaints. 4

youth officer was present for all of defendant's interrogations mre

the first. Detective Halvorsen was never told that defendant's Pr 1er

wanted to see defendant; when they were in the open area “ the po-

lice station, none of the three State witnesses was aware of anyone

iri defendant.

re gave Detectives Halvorsen and Renaldo oe -

oral statement, which lasted 20 to 30 minutes, starting at a x =

p.m.; she gave the assistant State’s Attorney an oral statement, w rem

lasted 20 to 30 minutes, starting at about 1:15 a.m.; she - :

statement to the court reporter, which lasted about 10 minu sr star

ing at about 6:16 a.m.; and she read, corrected, and signed = sper

of the transcribed statement, which was 11 pages long, gy es

about 6:20 a.m. The assistant State’s Attorney had her reac = =

portion of her statement aloud to satisfy himself that aye “ : ce

English. Sitting next to her, he then read it aloud as she fo —_

along. Dyring this time she made corrections on the gn

initialled the corrections, and signed each page. This process took ap

273 Ill. App. 3d 844 People v. Montanez. 861

proximately 15 to 20 minutes. A photograph taken of defendant im-

mediately after she signed the statement, showing her “with a big

smile,” was signed by her and admitted into evidence.

In her statement to the court reporter, defendant was advised of

her Miranda rights and waived them. She said she had been treated

well by the police and the assistant State’s Attorney, had not been

promised anything, had not been threatened in any way, and had

been given food and cigarettes. She said that she was a member of

the Maniac Latin Disciples street gang. On the day of the killings,

she met with fellow female gang members “Muneca” and “Tuti” to

plan “a mission” to get revenge for the killing of “Mudo,” a fellow

male gang member who had been killed by the Latin Kings, an enemy

gang, a couple of days before. She had a .25-caliber automatic. They

drove in the car of “Rabbit,” the brother of Muneca, to the area of

the Latin Kings. They looked for Latin Kings and finally met Jimmy

Cruz, whom she knew, and Hector Reyes, whom she had met previ-

ously. They were Latin Kings. They were in another car and agreed

to meet in Humboldt Park “to catch a buzz.” At the park, they left

their cars and walked. She walked with Cruz until they arrived at a

washroom. Reyes said he needed to use the washroom, and she

walked in with him. They kissed in the washroom for a couple of

minutes. When Reyes turned his back to use the toilet, she shot him

in the back of the head. After leaving the washroom, she gave the

gun to Muneca. Tuti, who was walking hand in hand with Cruz, gave

Muneca a signal, and Muneca went up to Cruz and shot him in the

back of the head. Defendant “[sJhowed [her] respect” for Cruz and

then drove with her friends to her gang’s area. There she told her fel-

low gang members what they had done and they celebrated with

marijuana and beer.

Detective Anthony Riccio testified at trial that at about 9 a.m. he

took defendant from the interview room. When she saw television

cameras outside the room, defendant said, “What is up with these

cameras?” She then said “Disciple thing” and gave the sign of the

Maniac Latin Disciples, a pitchfork in an upright position. As she

entered an office, she said “Maniac” and then “K.K.,” which meant

"King Killer.” Riccio testified that defendant was sober, alert, and

able to understand directions “completely.” A videotape showing de-

fendant, her actions, and her words was then played for the jury.

Defendant's mother testified that two plainclothes detectives

came to her home at about 10 or 10:15 p.m. One of them was a “Span-

ish guy.” They “pounded” on the door and “came with some guns in

their hands.” They scared her and her baby and told them to go into

another room because “they needed to talk to {her] husband” for

862 People v. Montanez 273 Ill. App. 3d 844

whom they specifically asked by asking him if he was William Bur-

rell. They told him that his daughter called him. When she heard

her daughter's name sh~ came out of the other room and said, “no it

wasn’t lilo that.” The officer said that her daughter had seen a mur-

der and “({tJhat he had her in custody, whatever, protective custody.”

He gave her the correct address of the place where she was in

custody. The officer then told her that defendant “had called the

house and that she seen the murder, and it was a lie because she

talked to me.” The officer then told her that defendant was in custody;

she was involved in a murder. At the hearing, she testified the police

were there about an hour and left “{aJbout 11, 12”; at trial she testi-

fied the police were there “maybe an hour, an hour and a half’ and

left at “maybe eleven, 11:15.”

Defendant's mother then testified that she waited at home

because the police had told her not to go to the police station and

that they would call her when she could go. Though she received no

call, she went to the police station with a girlfriend at about 2 a.m.

About 10 minutes after arriving, she went upstairs and was told by

the same Spanish officer who had been to her home that she “couldn't

go in there.” She went downstairs for about 1'/2 hours, and at

“[aJbout 3:00, 3:15” (she had her watch on so she knew the time), the

same officer told her “that I had to get the hell out of there because

they were talking to her.” She finally saw her daughter at 8:30 a.m.

At first her daughter did not know who she was. Her daughter was

gagging and she could not understand her. She could understand her

speech "[vjery little, very little.” Her daughter's face and eyes “were

all pushed out like she would have been high.” She believed her

daughter had been on drugs or alcohol that morning.

On cross-examinntion, defendant's mother testified that defen-

dant did not live at home. She was living in a foster home, but she

was a runaway from that home at the time. As for the girlfriend who

accompanied her to the police station, “[sJhe got beat up with the

gangs so she left town” and she had not talked to her for about five

months. At trial, when shown the photograph taken of her daughter

immediately after the statement to the court reporter, she said her

daughter looked worse than she did in the picture, “[hJer hair was all

messed up and everything.” Nevertheless, she testified, “[yJou can

tell she was high there too, but not that much.”

(b) Cases Cited by the Majority

Except for a single aberration, the cases cited by the majority

directly support the opposite conclusion or are distinguishable.

. is well settled that the voluntariness

273 Ill. App. 3d 844 People v. Montanez 86:

In People v. Brown (1989), 182 III

; ° . App. 3d 1046, 538

court While th the granting of a motion to suppress in the circuit

App 3d at 861), majority correctly quotes from the decision (273 Ill

“apneic ee ee heme the quoted portion the appel-

: e failure to advise a co ed

merely a consideration in evaluati seernes ee ae

the voluntari ’

statement or confession. Usin - en a oe

2 ° i g the defendant's inabilit

Salas paper ec as a consideration, combined with the falitare of tin

concluded that, a oe fendant of his Miranda rights, the court

rem anit a the trial judge's finding that the statement was

poses Ag against the manifest weight of the evidence Brown

p son when + 04 majority solely for its out-of-context language thine

seckey and e ve fails to do: it utilizes the proper standard of

tion of Ine applies the totality of circumstances test. Proper applica-

ruling h ge ny gone oo yr care affirmance of the trial judge’s

peng not against the manifest weight of the evi-

The majority says Peo

ple v. R.B. (1992), 232 Il. A

ae (273 Ill. App. 3d at 863-64), presents “pietla yt: oe

peyton seid rd the present case.” (273 III. App. 3d at 853.) It neglects

the detendens cet aoe ve appellate court concluded that

A ed without probabl

pra sufficient attenuation existed to asso ote yates

that the eviden —— of his illegal seizure, the court pa

rand rights, The courts Space rae teaant waived ha Mi

. iscussion of the failure of

sag Fargo a youth officer was connected to the atenuaton

: context of a juvenil ; ;

gr ec case bears no lent any se

Ape ant ox2.,(1992), 231 Il. App. 3d 853, 696 N.F.2d 1285 (273 TI

sisaniaa eanieal » Is another case in which the State appealed tl

the pra = 4 ta ace order. On appeal, the State contended that

solely hanmeciraoes 4 , ad erred in suppressing the juvenile’s confession

Diets hae ok a parents had been denied the right. to see him: the

ss ae rgued that the circuit court had erred hy applying m4 ,

juveniles “< ype court said that “there is no per se rule that

elias me allowed to consult with their parents prior to

8." (231 Ill. App. 3d at 854.) The court also stated that “it

: of a juvenile’s confession j

enaatte oes ’ 196 N.E.2d at 1286-87.) It then evaluated the circuit

aiid a “ using the totality of the circumstances standard, and

at the circuit court had applied a totality of circum

864 People v. Montanez 273 Ill. App. 3d 844

stances standard and not a per se standard and thus oe =

circuit court's suppression order. Again the majority ae 7 A

pellate court's statement out of context, making ~ appear to suppo

i the opposite.

ition when in fact it does exactly

9 ‘Both People v. Cole (1988), 168 Ill. ae wd pn rel greg

1 ON.E. . ,

1 denied (1988), 122 Ill. 2d 682, 63

at 850) ant People v. McGhee (1987), 164 Ill. hy het aries we ham

} 5 N.E. ‘ ,

1 denied (1987), 116 Ill. 2d 570, 61

pee on are contrary to the majority's age pong ae rol —s

| : : :

ed a juvenile’s confession because of an

aaaniend that failure to notify a parent or to have a youth rere

namo was properly considered, “but that Ree mse of wo _

se denial of a juvenile’s constitutional rights. e,

168 iL Apo 3a at 181, 522 N.E.2d at 640.) In McGhee, the court, “

ouppressing the confession of a juvenile because “ “a Patients

i i i tances test and sai at den

applied the totality of circumst ' alge nen pgpalior

j ile’ tunity to see him and no youtl

2 aerate gt itute a denial of the defendant's

resent “does not per se constitute a

wiita MeOhen. 154 Ill. App. 3d at 236-37, 507 N.E.2d - po ene

People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E. , —

denied (1989), 127 Ill. 2d 630, 645 N.E.2d Sewhyt yong d peigehoonnig

najori Ill. App. 3d at 852-53, 864-55), is «

upon by the majority (273 Ap at adh rsa

he li this issue. In Knox a pa

tion from the line of cases deciding é oP gph emg

he circuit court, without citation to |

appellate court reversed t ' + hacraay Degeont

i ing i i holding, without considering

ity regarding its ultimate ) Herne Senet

i i dard of review, and without r )

weight of the evidence stan pron

inci ilure tify a parent or a you

the principle that the failure to no ae

i ion in the evaluation of the voluntar

merely one consideration in t t tag vocal

j ile’ fession. Without saying so, the ‘oul

juvenile’s statement or con . Sakis tae

i r se rule, contrary to every other ca |

te etn finds this aberrant case persuasive, but it should

not be followed.

icati 7 dards to This Case

c) Application of Correct Stan oT

The ee ys this case discloses that the — albeit

i i test in ruling that defendant's :

correct totality of circumstances “pombe

issi i f the correctness of the judg

ments were admissible. Our review 0 | brchpers to

icati the manifest weight of the

ing, by application of the against

Praag aaa affirmance. The fact that defendant 8 3 her is

' dant prior to interrogation is

ly unable to speak to defen

re te consider in the totality of the circumstances, as is the eae

that a youth ollicer was not present when defendant gave her firs

273 Ill. App. 3d 844 People v. Montanez 865

statement. These factors are overridden, however, by the remainder

of the evidence which showed that defendant's confession was freely

given, without threats, promises, inducements, or physical coercion.

Defendant was given food when she requested it, treated well by the

police, and had no complaints about her treatment. She could read

and understand English, she understood her written statement, she

made corrections to it, and she signed it. She did not appenr to the of-

ficers, the assistant State's Attorney, or the youth officer to be under

the influence of alcohol or other drugs. There was no evidence that

she asked to speak to her mother. The clarity of her statements,

particularly the detail contained in the statement given to the court

reporter, belied the testimony of her mother that she was nearly

incomprehensible. The bravado displayed by defendant for the sake

of television cameras, a videotape of which was shown to the jury,

also belied her mother's testimony and was consistent with the con-

scious actions of a defiant person who was in control, not those ofa

youngster in a coercive environment.

The majority relies heavily on the fact that no one was called to

rebut the testimony of defendant's mother. Without regard to the

inherent difficulties in proving a negative and without regard to the

fact that everyone addressing this issue in the circuit court—judge,

prosecutor, and defense attorney—applied the totality of circum.

stances test and saw the noncontact between mother and defendant

as only a consideration, the majority places too much reliance on the

fact that the evidence was uncontradicted. The circuit court is in a

superior position to evaluate a witness’ credibility when it. hears a

motion to suppress, and it need not accept the defendant's version of

the circumstances in preference to another version. People v. Cleesen

(1988), 177 Ill. App. 3d 103, 113, 631 N.E.2d 11 13, 1119,

Indeed, much of defendant's mother's testimony waa incredible.

Did the police officers, charged only with the responsibility of notify-

ing the mother of her daughter's whereabouts, really enter her home

with drawn guns? Did they refuse to talk to her and insist only on

talking to her husband? Did they stay for at least an hour? Why did

the police go to her house at all if they did not want her to know that

her daughter was in custody and where she could be seen? Did police

deny her access to her daughter until 8:30 a.m., even though all

statements had been completed by 6:40 a.m.? At 8:30 a.m., after hav-

ing given a coherent statement to a court reporter and minutes before

performing for television cameras, was her daughter oagging,

incomprehensible, and unaware?

Although pointing out “the danger of cursory application of

Principles to facts” (273 IIl. App. 3d at 860), without analysis the

7 ‘i

h v. Haran 273 Ill. App. 3d 866

Smith v. Ha

, teme

l1 of defendant's ata

= ras rule. In doing 89,

i broader than it

oa iculated per se rule is even a

If so, the com agri gore he fact that defendant had already

first appears. ’

’ by the

istant State’s Attorney

: tement to the assis ; A t 2 a.m., how

given hee rape arrived at the police ee cnaae at the

oo “aoe wa tainted by the alleged rebuff 0

: i le evi-

police station? the totality of the cosine ate schema tush ys if

; yy lr to support the trial aggre : procter perm osetia

ence in f argument, oe ]

the sake of arg lusion is not clearly

it be conceded, for ince the opposite conclusi

ess to her. Since the ion to suppress

was nen ag ruling of the trial judge on the seer ieieh.

watery ne borer and the judgment in this case 8

shou

866

laa

majority suppresse

application of its p

nts, through its broad

the majority leaves

in view of the evi-

dant at about the

can it be said that

Smith, De . !

I rT str c i am 4—062

4 i

’

i in finding that signed

a regs eS promise to pay. |

nt’s estate brought an — !

n decedent's wall safe that oo at

agreed to repay $125,000 to — 9

naacted business with d —

ed instrument did not contain 8

required in a prom-

pay, and the record

“Promissory Note,” ’

v ORS’ RIGHT i

+ eae ered in decedent's safe

ee dministrator of decede

the independent a

tg on an instrument he found i

by defendants and stated a rts

but defendants claimed that they ire

the trial court erred in arora of promise are

eee a ome as there can be deduced gee -

ue that decedent's name, her address, the h

show

273 Ill. App. 3d 866 Smith v. Haran 867

the phrases “We collaterize this note of $125,000” and “Note to be paid back

within 12 months” and the signatures of the defendants were sufficient to

show the signed instrument contained a promise to pay.

2. COMMERCIAL CODE—when plaintiff should recover on inatrument

unless defendants establish defense. Where the inatrument which plaintiff

found in decedent's safe was made and signed by the defendants and

contained the defendants’ unconditional promise to pay a sum certain in

money at a definite time, the plaintiff should be allowed to recover under the

terms of the instrument pursuant to section 3—805 of the Uniform Com-

mercial Code, which applies to any instrument whore terms do not preclude

transfer, and the instrument also met the requirements of section 3—307 of

the Code, which provides that when signatures on an instrument are admit-

ted or established, Production of the inatrument entitlea n holder to recover

on it unless the defendant establishes a defense, and the record showed that

the instrument in question did not preclude transfer, the defendants admit-

ted signing the document and the defendants failed to ertnblish a defense.

3. DEAD-MAN’S ACT—argument that Dead-Man's Act may only be

used as shield to protect estate and not as sword to prevent opposing party

from presenting defense was without merit. The defendants’ argument that

the Dead-Man’s Act was intended to be used as a shicld to protect estates

from fraudulent claims and not as a sword to prevent the opposing party

from presenting a legitimate defense was without merit, since the Act specifi-

cally states that it pertains to any action in which the representative of the

deceased sues or defends and, therefore, the Act contemplates actions where

the representative of the deceased sues Lo protect the interests of the estate.

4. DEAD-MAN'S ACT—dececdent's failure to give defendants money did

not qualify aa “event” under Dead-Man's Act. Where the Dead-Man's Act

provides for the exclusion of testimony regarding any event that took place

in the presence of decedent, defendants argued that their testimony regard-

ing the decedent's failure to Rive them money should not have been excluded,

since this event could not have taken place in the presence of the decedent,

but the decedent's failure to give defendants money was not an event under

the Dead-Man's Act, since “event” usually refers to an occurrence or a hap-

pening and, therefore, defendants’ negative testimony about a transaction

that did not take place was properly excluded.

5. DEAD-MAN'S ACT—tria/ court abused ita discretion in barring

defendants’ testimony regarding dealings with decedent, Although the Dead-

Man's Act states that when A party sues as representative of a deceased

person, no person directly interested in the action shall be allowed to testify

on his own behalf to any conversation with the deceased to any event which

APPENDIX B

The Trial Judge's Finding Denying Respondent's Motion to Suppress

°

3 | THE COURT S5asec cn wnat = nearsa, which

}

12 / SORSISSS sl the tessicmeny <i she sceiice sf#ttcecs,

il | primarily, and the mother cf the defendant I think

ma “the selices Ox@Sc.see & FSCS Faith sit stez eattar sue

Ld dertendant was arrested when they notified the mother

14 of her incarceration. That is uncontested. The

ia mother even admits that.

16 The only real issue is whether or no

17 ene motner was allcwed access =5 che daughter ats th

>

218 cclice station. She arrived scmetime after tke

£19 arrest and the citicers have testified that at no

time did she request to see the defendant.

As far as the alcohol and drug

ingestion, which is alileced in the motion on behaié

of Ms. Montanez, that is an indicaticn to me she is

a littie mcre soohiscicated than an average

#

o 1 15-year-old and the only one who can testify as to

* 2 the effects of the alcohol and drugs as it relates

3 3 to the voluntary nature of the confession or

. involuntary nature is the defendant herself as to

5 what effect they had on her.

6 I certainly don’t accept the mother’s

7 interpretation of the effect of the alcohol and

8 drugs on the defendant. That has to come from the

9 | deteddant as tc how severely ner will was effected

10 by the ingestion of alcohol and drugs.

ll Based cn the totality of the

12 | circumstances I believe that law enforcement acted

a a3 er Good faith, that the statement was given to them

14 and this is no question in my mind that Miranda was

15 given not once but twice.

16 It is a factual finding that this

17 Statement is voluntary and will be used against the

i +8 defendant at her subsequent trial.

| 19 So, Moticn Defendant to Suppress

F 20 Statements denied.

3 21 What date?

ea

a 22 MR. BERMAN: We are talking about August 4th?

5 23 THE COURT: For?

c: 24 MR. BERMAN: Jury trial at this point.