Find Legal Information

1-99-4435

JUSTICE REID delivered the opinion of the court:

Following a bench trial, Ulises Arroyo was convicted of first degree murder (720 ILCS5/9-1)(West 1996)) in the shooting death of Rudy Dellatorre just after midnight on June 14,1997, during the street "celebration" which occurred after the Chicago Bulls won the NBAchampionship. He was sentenced to 35 years. On appeal, the defendant asserts that the trialcourt committed reversible error by not allowing the inculpatory statement of a non-testifyingthird person into evidence. Defendant also argues judicial error in denying his motion tosuppress statements, and in limiting testimony regarding incidents of past violent acts committedby members of the street gang which had initially instigated violence. Defendant further argueshis guilt was not proved beyond a reasonable doubt and his sentence was excessive. For thefollowing reasons, we affirm the conviction and sentence.

Arroyo, a member of the Milwaukee Kings street gang, watched the championship gameon television at his girlfriend's house. He is not a member of the Reese Park Imperial Kings. After the game, he went to meet another friend at the Apple Pantry near Fullerton and Marmorain Chicago. He had previously been told that, even though he was not an official member of theReese Park Imperial Kings, he would be working security at the Apple Pantry in case anythinghappened. While this was transpiring, members of the Pachucos street gang were throwingbricks and bottles at cars passing through their territory. The Pachucos hit a car driven by PedroVillalobos, a member of the rival Imperial Gangsters street gang. To help him retaliate,Villalobos recruited Imperial Gangsters as well as some of the Reese Park Imperial Kings. Villalobos went to the Apple Pantry and told everyone there, including Arroyo, what hadhappened to him. Several Imperial Gangsters and Reese Park Imperial Kings left the ApplePantry, walking East on Fullerton toward Long where the bricks had been thrown. Once there,violence ensued.

Arroyo claimed he heard gunshots and someone's voice saying "they are bursting!" Heclaims he was told to shoot. Arroyo pulled his gun and shot in a northerly direction, up and overthe heads of the crowd. He then left the scene to put the gun back in the Kings' hiding spot. Arroyo claims he did not aim at anyone specific and did not know anyone had been shot. Whenthe shots were fired, Rudy Dellatorre was standing in the middle of a group of 20-25 people,waving a Mexican flag. Dellatorre was shot during the gunfire. He died the next day at IllinoisMasonic Hospital.

While those events were transpiring, another group led by Oscar Molina and LuisVillalobos drove in a van painted a dark color to Fullerton and Long and opened fire on thePachucos standing on the corner. On June 15, 1997, Molina and Villalobos were arrested. Molina confessed that he thought he hit someone while shooting his .9mm handgun. Villalobos'statement corroborated Molina's statement. After Molina gave his statement, he fled thejurisdiction and was a fugitive at the time of Arroyo's trial.

Also, on June 15, 1997, at approximately noon, Arroyo was taken into custody by thepolice and brought to Area 5. Arroyo made a statement to the police in which he confessed to thecrime orally and in a signed, handwritten statement.

During pre-trial discovery, Arroyo filed a motion to suppress his statement. Arroyoclaimed that the police had violated his fifth amendment rights because he was physically andpsychologically coerced into confessing. At the time of the interrogation, Arroyo had no attorneypresent and no one from his family had been notified of his arrest. He was not arrested pursuantto a warrant and was not being interrogated by the arresting officers.

At the hearing on the motion to suppress, Arroyo testified that the police never informedhim of the charges against him and refused upon request to allow him contact with an attorney. When Arroyo showed the police his attorney's business card, he claimed they tore it up and beganslapping him. After a full day of interrogation which he claimed lasted 30 hours, Arroyo claimshe succumbed to the pressure and signed the five-page statement written by an Assistant State'sAttorney. The claim that Arroyo was interrogated for 30 hours is disputed by the State. Thearrest report shows that he was arrested June 15, 1997 at 8:30 p.m. The handwritten statementstates it was created June 16, 1997 at 12 p.m. Both of these documents are contained in thecommon law record. By the State's calculation, Arroyo was interrogated for only 16 hours.

During the motion to suppress, the defense called Arroyo, his mother Yolanda Sharon,and his girlfriend Lindora Cox. Arroyo testified he was threatened, coerced and hit in the headduring the interrogation process. He also accused the police of preventing him access to hisattorney by tearing up the attorney's card, which Arroyo carried. Arroyo's mother and girlfriendtestified they had been looking for him the entire time he was being interrogated. The girlfriendtestified that the police denied having Arroyo in their custody, even though he had been there forquite some time. The mother and girlfriend claimed they knew the police were lying becausethey saw Arroyo's car in the parking lot.

The investigation was conducted by Detectives Engel and Sofrenovic. At the motion tosuppress, the State called Engel, who testified that he conducted a brief interview shortly afterArroyo arrived at the Area 5 station wherein he did not ask Arroyo about Dellatorre's death anddid not mentally or physically coerce him in any way. He also denies that Arroyo requested hisattorney or that the police contact Arroyo's family members.

Sofrenovic testified that he interviewed Arroyo at approximately 12:30 a.m. on June 16,1997. He claims Arroyo was not cuffed at the time. Reading from a printed form, Sofrenovicinformed Arroyo of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694,86 S. Ct. 1602 (1966). Sofrenovic testified that Arroyo indicated he understood his rights andagreed to speak. The interview continued from 12:30 a.m. to approximately 4 a.m. At that point,Sofrenovic testified he read the Miranda rights a second time. Sofrenovic allegedly told Arroyothat his story did not wash because two witnesses placed defendant at the shooting and that thepolice had recovered a gun.

Arroyo's statement was memorialized at approximately noon on the second day. At thatpoint, Assistant State's Attorney Gallagher again read Arroyo his Miranda rights and took thestatement. The statement was written by Gallagher, allegedly based on things Arroyo told him. Portions of the statement were read aloud in front of Arroyo, who made corrections which wereinitialed. Arroyo, Gallagher and Sofrenovic signed the statement once the corrections weremade. The statement is nearly 5 pages in length, containing language that Arroyo was well-treated and neither threatened nor coerced into making the statement.

At the close of the hearing on the motion to suppress, the trial court denied the motion,holding that it would resolve all issues of credibility between the defendant and the State in favorof the State.

Trial commenced on April 30, 1999. The State called Enereida Zendejas, who testifiedhow Rudy Dellatorre was struck by a bullet. She testified that she observed a large groupwalking down Fullerton carrying bats and bottles. Zendejas then saw a light-colored van and adark-colored car drive by the area. She testified she believed the shots came from one of thecars, not the group on the street. She also testified that she saw a Hispanic man come from thecar who was approximately 6'1" tall, weighing approximately 180-200 pounds.

The State also called Sergio Hernandez and Terrence Rizzo, members of the MilwaukeeKings street gang. They testified that they were with Arroyo on the night in question. ThePachucos threw bricks at Hernandez and the group with him. Hernandez testified he saw Arroyofire a single shot, then run away. As Arroyo was running, Hernandez testified he heard three orfour other shots from what sounded to him like a larger gun. Hernandez also testified that he didnot see the bullet fired by Arroyo actually hit anyone. Rizzo also saw Arroyo shoot but did notsee the bullet strike anybody. Rizzo testified to hearing a second volley of shots but that theshots did not come from Arroyo's gun. After the incident, Rizzo met up with Arroyo. Accordingto Rizzo, Arroyo did not mention thinking he hit someone when he fired the gun. Arroyo thenasked another gang member to put the gun in the gang's stash. Hernandez subsequently took thepolice to the stash where they recovered the .25 caliber handgun.

The State then called Sofrenovic, who testified consistently with his testimony at themotion to suppress. He testified that he spoke with Arroyo, Hernandez and Rizzo. Sofrenovicwitnessed the writing of the handwritten statement. He also saw Arroyo sign the statement. Oncross-examination, Sofrenovic admitted there was no lawyer present for any of the interrogationand that certain details were missing from the statement. Sofrenovic, through testimonypublished the statement to the trial court. The statement indicated that Arroyo got the gun from agang member named Jowers. Arroyo was carrying the gun "just in case anything happened." Arroyo knew he was the only person in his group with a gun. He also heard the Pachucos didnot have guns. The statement also states that defendant fired 4 shots into the crowd. Arroyothought he might have hit someone but was uncertain.

On cross-examination, Sofrenovic testified about the oral statement Arroyo gave beforethe handwritten statement. In the oral statement, Arroyo allegedly told the police that he did notknow if the Imperial Gangsters or Maniac Latin Disciples carried firearms when they left to go tothe scene of the shooting. However, Arroyo later contradicted himself by stating that he knewsomeone had a .9mm gun. Arroyo told Sofrenovic that he knew the person with the gun wouldbe east of the Pachucos. Further, Arroyo stated that when he heard his own group members yell"shoot shoot" he did not know whether the Pachucos had a gun. Sofrenovic testified that thepolice recovered a .9mm gun from Molina that same day.

Prior to resting its case-in-chief, the State introduced two stipulations into evidence. Thefirst contained stipulated testimony of the medical examiner that the victim died from a gunshotto the right side of the head. The medical examiner would have testified that the bullet was asmall caliber, copper-jacketed bullet. The second stipulation was of a firearms expert namedSanchez. Sanchez would have testified that the bullet recovered from Dellatorre's head had beenfired from the .25 caliber handgun recovered from the Milwaukee Kings' stash. This concludedthe State's case-in-chief. Defendant unsuccessfully moved for a directed verdict.

The defendant's case-in-chief began with Arroyo himself. Arroyo testified that he andsome others met members of the Imperial Gangsters and Maniac Latin Disciples aroundFullerton and McVicker. Arroyo said he agreed to go along and help the other gangs fight thePachucos. He admitted he was carrying a gun, "in case anything goes down, anybody ends upshooting or pulls a gun or anything like that." When they arrived on the scene, both sides beganthrowing things at each other.

Arroyo testified he stood by himself on the southwest corner of Fullerton and Long wherehe heard shots fired. He testified he did not know from where the shots had come. In responseto the shots, Arroyo drew his gun and fired 3 or 4 bullets in an attempt to "scare them off." Arroyo shot in a northwest direction but did not aim at anyone. After the shooting, Arroyoheaded westbound away from the scene. He gave the gun to Jowers and did not learn anyone hadbeen shot until he was arrested and taken to Area 5. Arroyo testified that he spent 30 hours atArea 5 before giving his statement. Arroyo claimed he did not read the statement or have it readto him by the police before he signed it. Arroyo also testified about other incidents with thePachucos. This included an auto collision, an incident when a Pachucos member allegedlypointed a gun at Arroyo, and a third incident where Arroyo allegedly heard that the Pachucosshot at other gang members.

Fernando Perez testified on Arroyo's behalf. He was a co-defendant until he pled guiltyand was sentenced to 4 years. Luis Villalobos also testified on Arroyo's behalf. He had beencharged with murder but pled guilty to discharge of a firearm and was sentenced to 6 years. Villalobos gave a statement which indicated that Molina also had a gun that evening. Pereztestified that he learned that Molina's gun was a .9mm. Though he heard 2 groups of gunshotsthat night, Villalobos testified he did not actually see anybody shooting either gun.

At the close of his case-in-chief, Arroyo moved to have Molina's statement to the State'sAttorney admitted into evidence. The trial court took notice that Molina was out of thejurisdiction, possibly out of the country, and refused to admit the statement into evidence. Thetrial court ruled that the statement lacked sufficient indicia of reliability to justify its admissioninto evidence. Arroyo was found guilty of first-degree murder. He was sentenced to 35 years.

Arroyo argues on appeal that the trial court's refusal to admit the Molina statementbecause it purportedly lacked an indicia of reliability was error which he claims resulted inprejudice to him. He argues that the indicia of reliability overwhelmingly favored admission ofthe confession because it was made when Molina was in custody, during an interrogation whenMolina was anything but safe from prosecution. Arroyo also argues that, since the confessionwas made while Molina was in police custody, it is far more reliable than had it been madeoutside of police custody.

The State responds that the confession lacked sufficient indicia of reliability and thereforethe trial court was correct in barring its admission. The State argues that, since Arroyo failed tomake the Molina statement part of the record on appeal, it is unclear what the confession actuallysaid. Since it was not included in the record, the State argues that Arroyo cannot actually showhow the trial court allegedly abused its discretion.

In determining whether or not to allow the admission of an incriminating statement by athird-party, courts follow the guidelines articulated in Chambers v. Mississippi, 410 U.S. 284, 35L. Ed. 2d 297, 93 S. Ct. 1038 (1973), and its progeny. In general, a declarant's unsworn,out-of-court statement that he committed the crime for which a defendant is charged isinadmissible hearsay, even though the statement is against the declarant's penal interest. Peoplev. McAllister, 193 Ill. 2d 63, 100 (2000); citing People v. Tate, 87 Ill.2d 134, 143 (1981). However, such a statement may be admitted under the statement-against-penal-interest exceptionto the hearsay rule if the statement contains sufficient indicia of reliability and if justice sorequires. McAllister, 193 Ill. 2d at 100, citing People v. Bowel, 111 Ill.2d 58, 66 (1986), citingChambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313, 93 S. Ct. 1038, 1049 (1973)("the hearsay rule may not be applied mechanistically to defeat the ends of justice").

To determine whether a statement contains sufficient indicia of reliability, courts lookforemost to whether the statement is self-incriminating and against the declarant's interest. McAllister, 193 Ill. 2d at 100, citing People v. Keene, 169 Ill.2d 1, 29 (1995). Courts also lookto whether the statement was made spontaneously to a close acquaintance shortly after the crimeoccurred; whether the statement was corroborated by other evidence; and whether there wasadequate opportunity for cross-examination of the declarant. These latter factors are not "hardand fast requirements" for admissibility but, instead, are simply "indicia" of trustworthiness. McAllister, 193 Ill. 2d at 100, citing People v. House, 141 Ill.2d 323, 390 (1990), citing Bowel,111 Ill.2d at 67; Keene, 169 Ill.2d at 29. In every case, the ultimate question in deciding theadmissibility of the hearsay declaration is whether it was "made under circumstances whichprovide 'considerable assurance' of its reliability by objective indicia of trustworthiness."McAllister, 193 Ill. 2d at 100-01, citing Bowel, 111 Ill.2d at 67, quoting Chambers, 410 U.S. at300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49. Whether a statement is admissible underthe statement-against-penal-interest exception to the hearsay rule rests within the sounddiscretion of the trial court. McAllister, 193 Ill. 2d at 101, citing Bowel, 111 Ill.2d at 68.

In the case sub judice, the trial court properly held Molina's statement to be inadmissiblebecause the Chambers exception to the hearsay rule applies only to "a declarant's unsworn, out-of-court that he committed the crime for which a defendant is charged." McAllister, 193 Ill. 2dat 100. Molina's statement that he fired a .9mm handgun in the vicinity where the victim wasshot in the head by a .25 caliber bullet fired from Arroyo's gun in no way indicates that Molina"committed the crime for which (Arroyo) is charged." As Molina's unsworn, out-of-courtstatement did not comprise an admission that he committed the murder at issue, it could not havebeen admitted under the Chambers exception. For the same reason, Molina's statement also didnot contain sufficient indicia of reliability and, most importantly, justice did not require itsadmittance. In both the trial court and on appeal, defendant has completely failed to present anyplausible basis to find that the interests of justice would be served by admitting Molina'sstatement. Indeed, a strong argument could be made that defendant's failure to make Molina'sentire statement part of the record was a purposeful effort to obfuscate this issue. The trialcourt's ruling that Molina's statement was inadmissible hearsay was correct.

Arroyo next argues that the trial court improperly denied his motion to suppress hisconfession. He claims the confession was improperly obtained after 30 hours of interrogation inpolice custody without benefit of counsel. Arroyo claims that the trial court failed to givesufficient weight to the effects of his prolonged isolation. In this way, Arroyo argues he waseffectively denied his constitutional right to counsel. The State responds that the confession wasvoluntary and that Arroyo was repeatedly informed of his Miranda rights. The State argues itestablished by a preponderance of the evidence that the confession was voluntarily given and thatArroyo was well treated during his interrogation.

It is a fundamental principle of criminal procedure that a confession must be voluntary;otherwise it is inadmissible. People v. Gilliam, 172 Ill. 2d 484, 501 (1996). In determiningwhether a confession was voluntary, we must consider the totality of the circumstances. In ReG.O., 191 Ill. 2d 37, 54 (2000); citing Gilliam, 172 Ill. 2d at 500. Factors to consider include therespondent's age, intelligence, background, experience, mental capacity, education, and physicalcondition at the time of questioning; the legality and duration of the detention; the duration ofthe questioning; and any physical or mental abuse by police, including the existence of threats orpromises. G.O., 191 Ill. 2d 37, 54; citing Gilliam, 172 Ill.2d at 500-01. Significantly, no singlefactor is dispositive. G.O., 191 Ill. 2d 37, 54; citing Gilliam, 172 Ill.2d at 500. The test ofvoluntariness is whether the respondent "made the statement freely, voluntarily, and withoutcompulsion or inducement of any sort, or whether the [respondent's] will was overcome at thetime he or she confessed." G.O., 191 Ill. 2d 37, 54; quoting Gilliam, 172 Ill.2d at 500. "Thebenchmark for voluntariness is not whether the defendant would have confessed in the absenceof interrogation but, rather, whether the defendant's will was overborne at the time of theconfession." People v. Brown, 169 Ill. 2d 132, 144 (1996); citing People v. House, 141 Ill. 2d323, 376 (1990); People v. Terrell, 132 Ill. 2d 178, 198 (1990). "Consequently, in reviewingwhether respondent's confession was voluntary, we will accord great deference to the trial court'sfactual findings, and we will reverse those findings only if they are against the manifest weight ofthe evidence. However, we will review de novo the ultimate question of whether the confessionwas voluntary. We caution that, for this standard of review to function as it is intended, trialcourts must exercise their responsibility to make factual findings when ruling on motions tosuppress. Reviewing courts should not be required to surmise what factual findings that the trialcourt made. Instead, the trial court should make clear any factual findings upon which it isrelying. It is only through this synergy between the trial and reviewing courts that appellatecourts can develop a uniform body of precedent to guide law enforcement officers in theirdetermination of whether their actions may violate the constitution." G.O., 191 Ill. 2d at 50.

The most disturbing claim made by Arroyo is that he asserted his right to an attorney,pulled out his attorney's business card, only to have the police officer seize the business card andtear it up in his face. This alone would be sufficient to invalidate the confession and exclude itfrom evidence as a violation of the defendant's right to counsel. U.S. Const., Amend. V and XIV;Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; People v. Smith, 93 Ill. 2d 179 (1982). The State urges this court to accept the finding of the trial court which found the denial of thisclaim by the State to be more credible. On this record, we cannot hold that the trial court's rulingis contrary to the manifest weight of the evidence presented on this issue.

The undisputed evidence is that the interrogation took place over a substantial period oftime. Arroyo was repeatedly read his rights. He was provided with food and drink. He admittedhe was well-treated during his interrogation and was not subjected to punishment. ThoughArroyo made some claims of mistreatment, the trial court also found those claims incredible. The trial court rejected Arroyo's arguments, in part, because the police gave him long breaksbetween questioning, allowed him time to rest in addition to providing him with food and drinks.

Arroyo argues that this case should have the same result as People v. Hardway, 163 Ill.App. 3d 596 (1987), wherein that defendant's confession was found to be the result of anunlawful detention. Though Hardway might superficially seem similar to the case at bar, it isreadily distinguishable. Hardway turned on whether that detention resembled a traditional arrestor whether a reasonable person would not have believed he was free to leave. Hardway, 163 Ill.App. 3d at 601; citing People v. Towers, 91 Ill. 2d 32 (1982). That defendant was not toldwhether or not he was under arrest. He was also not told that he need not accompany the policeofficers to the station. This is factually specific and quite unlike Arroyo's situation. Arroyo hadno doubt he was under arrest. He does not dispute that he was detained, merely that, in hisopinion, the detention was too long. Arroyo would have this court consider the length of time ofthe detention as though that were the only fact to be considered. This we cannot do because suchan approach would be too rigid and would fail to take into account the totality of thecircumstances. The evidence presented at the motion to suppress is directly in conflict. If thedefendant's witnesses are to be believed, the statement should be suppressed. If the State'switnesses are to be believed, the motion to suppress was properly denied. These evidentiaryconflicts were resolved by the trial court in favor of the State's witnesses. Given the greatdeference we must give to such findings, we cannot say that the trial court abused its discretion indenying defendant's motion to suppress. G.O., 191 Ill. 2d at 50.

Arroyo next claims the trial court denied him his right to confront certain witnesses whenit restricted testimony concerning prior acts of violence by the Pachucos against Arroyopersonally and their previous history of violence in general. In his testimony, Arroyo wasallowed to make some mention of the Pachucos' prior acts but was limited in other respects. Heargues that any actions by the trial court to limit or foreclose such testimony was error. The Stateresponds that, since the trial court allowed Arroyo to elicit testimony from several witnessesabout the Pachucos' reputation for violence, the rulings did not deny Arroyo his right ofconfrontation. The State points out that, since Arroyo did not include this issue in a post-trialmotion and did not object to the trial court's handling of the issue, it should be treated as havingbeen waived. The State points out that, in the post-trial motion, Arroyo only argued that the trialcourt violated his right to impeach the witness, not the right of confrontation. Next, the Stateargues that Arroyo failed to explain exactly how the alleged error actually deprived him of hisright of confrontation. Finally, the State urges this court to treat the alleged error as harmless.

The trial court entertained a post-trial motion for a new trial on December 2, 1999. Though Arroyo's motion included a claim of judicial error for restricting his witnesses' testimonyto prior acts of violence by the Pachucos, it was raised in context of a self-defense claim. Nomention in the motion was made of the confrontation clause of the United States Constitution. "Failure to specify grounds for a new trial in writing in a motion for a new trial has been held bythis court to constitute waiver of the issue on review in the absence of plain error." People v.Enoch, 122 Ill. 2d 176, 187 (1988). Moreover, this court has previously held that "general andvague allegations in a post-trial motions are not sufficient to overcome waiver." People v.Knight, 323 Ill. App. 3d 1117, 1124 (2001); quoting People v. Parchman, 302 Ill. App. 3d 627,632 (1998). "Failure to raise issues in the trial court denies that court the opportunity to grant anew trial, if warranted. This casts a needless burden of preparing and processing appeals uponappellate counsel for the defense, the prosecution and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appealwhether or not trial counsel considered them of any importance." Enoch, 122 Ill. 2d at 186.

A trial court has wide discretion to restrict the scope of cross-examination but must firstallow sufficient cross-examination to satisfy the confrontation required under the SixthAmendment as a matter of right. People v. Brown, 243 Ill. App. 3d 1057, 1063 (1993). "Todetermine if the cross-examination allowed satisfied the Constitutional requirement, a court'should not look at what a defendant had been prohibited from doing, but to what he had beenallowed to do.'" Brown, 243 Ill. App. 3d at 1063; quoting People v. Edwards, 218 Ill. App. 3d184 (1991). A reviewing court should interfere with the trial court's decision involving thelatitude of cross-examination only when the trial court clearly abused its discretion and manifestprejudice to the defendant resulted. Brown, 243 Ill. App. 3d at 1063; quoting People v.Edwards, 218 Ill. App. 3d at 193. In the case at bar, the trial court gave the defense counsellatitude to question the witnesses about the Pachucos. The trial court limited questions in scopebut still allowed some questions, provided the questions were not vague or based upon hearsay. These limitations were not outside the scope of the trial court's authority. Absent an abuse ofdiscretion, this court cannot find error on the part of the trial court.

Arroyo next argues that the case against him was insufficient to convict him beyond areasonable doubt. "The State carries the burden of proving beyond a reasonable doubt eachelement of the offense and the defendant's guilt." People v. Maggette, 195 Ill. 2d 336, 353(2001); citing People v. Ware, 23 Ill. 2d 59, 62 (1961). A reviewing court will not set aside acriminal conviction on grounds of insufficient evidence unless the proof is so improbable orunsatisfactory that there exists a reasonable doubt of the defendant's guilt. When considering thesufficiency of the evidence, it is not the function of a reviewing court to retry the defendant. Rather, the relevant question is whether, after reviewing all of the evidence in the light mostfavorable to the prosecution, any rational fact finder could have found beyond a reasonable doubtthe essential elements of the crime. Maggette, 195 Ill. 2d at 353; citing People v. Tye, 141 Ill.2d1, 13-14 (1990); People v. Phillips, 127 Ill.2d 499, 509-10 (1989). We note that this standard ofreview applies in all criminal cases, whether the evidence is direct or circumstantial. Maggette,195 Ill. 2d at 353; citing People v. Gilliam, 172 Ill.2d 484, 515 (1996); People v. Campbell, 146Ill.2d 363, 374-75 (1992). It is well-settled that when a case is tried without a jury, it is theresponsibility of the trial judge to determine the credibility of the witnesses and weight to begiven their testimony and where the evidence is merely conflicting , a reviewing court will notsubstitute its judgment for that of the trier of fact who heard the evidence. Hardway, 163 Ill.App. 3d at 601; citing People v. Woods, 81 Ill. 2d 537 (1980). In the case sub judice, twocredible eyewitnesses watched Arroyo shoot a .25-caliber gun in the direction of the Pachucos onthe night of the incident. Sometime after the shooting, one of the eyewitnesses watched Arroyoturn a .25-caliber gun over to a fellow gang member and ask him to put it in the stash. All of theeyewitness testimony exists in conjunction with Arroyo's own confession, in which he indicatedthat he shot his .25-caliber weapon which might have hit someone. Additionally, all of thistestimonial evidence is corroborated by the forensic evidence in this matter. The medicalexaminer removed a .25-caliber bullet from the deceased's head. This bullet was scientificallyconfirmed to have been fired from the same gun Arroyo fired. The State argues that thisevidence is overwhelming in its support for Arroyo's conviction. We agree.

Finally, Arroyo argues that the sentence imposed was disproportionate to the crime forwhich he was charged. The State responds that a 35 year prison term for murder is within thestatutory guidelines and is reasonable under the circumstances. We agree. It is well settled thatthe trial court has broad discretionary powers in imposing a sentence. People v. Stacey, 193 Ill.2d 203, 209 (2000); citing People v. Fern, 189 Ill. 2d 48, 53 (1999). The trial court's sentencingdecision is entitled to great deference. Stacey, 193 Ill. 2d 203, 209; citing People v. Perruquet,68 Ill. 2d 149, 154 (1977). The trial court is granted such deference because the trial court isgenerally in a better position than the reviewing court to determine the appropriate sentence. Thetrial judge has the opportunity to weigh such factors as the defendant's credibility, demeanor,general moral character, mentality, social environment, habits, and age. Stacey, 193 Ill. 2d 203,209; citing People v. Streit, 142 Ill.2d 13, 19 (1991); Perruquet, 68 Ill.2d at 154. Consequently,the reviewing court must not substitute its judgment for that of the trial court merely because itwould have weighed these factors differently. Stacey, 193 Ill. 2d 203, 209; citing Streit, 142Ill.2d at 19. Arroyo's sentence is within the statutory guidelines for a crime of this nature. "Asentence within statutory limits will not be deemed excessive unless it is greatly at variance withthe spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Fern, 189 Ill. 2d at 54; citing People v. Cabrera, 116 Ill. 2d 474, 493-94 (1987). This record doesnot support Arroyo's claim that the sentence was disproportionate.

In light of the foregoing, the judgment of the trial court is affirmed.

Affirmed.