# Opposition Brief — Illinois v. Montanez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1186%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1251 ## Text 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 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 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 “ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1186%3A3. Public record. Not legal advice.