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filed February 01, 2002

1-98-3778

JUSTICE REID delivered the opinion of the court:

Following a jury trial, Ricardo Lima (Lima) was convicted of one count of first degree murder (720 ILCS5/9-1 (West 1992)) and three counts of attempted first degree murder (720 ILCS 5/8-4, 9-1) (West 1992)) . He wasfirst sentenced to 60 years for the murder and to a 10-year concurrent sentence for the attempted murder. Followinga motion to reduce the sentence, Lima's sentence was reduced to 50 years for the first degree murder and to a 10-year consecutive sentence for the attempted first degree murder. He now appeals the conviction and the revisedsentence. We affirm defendant's convictions and sentence for first degree murder and modify defendant's sentencefor attempted first degree murder to run concurrently for the following reasons.

Lima was 16 years old at the time of his arrest. He was charged with first degree murder (720 ILCS 5/9-1(West 1992)), attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1992)) and aggravated discharge of afirearm (720 ILCS 5/24-1.2 (West 1992)) in connection with the shooting death of Armando Rodriguez(Rodriguez) and the shooting at Ruben Martinez (Martinez), Juan Ocun (Ocun) and Rocky Salazar (Salazar).

Prior to the trial, Lima moved to suppress his postarrest statement. In that motion, Lima claimed he wascoerced into signing his handwritten statement, that his requests to see his mother were ignored and that he was notinformed of his constitutional rights at the time he made his statements. Lima also moved to bar the introduction ofevidence of gang involvement. The trial court held a hearing on the motions in which the State called DetectiveDennis Walsh (Walsh) and Lima called his mother, Kathleen Rivera (Rivera). Walsh testified that he wasinvestigating the shooting death of Armando Rodriguez. After other officers had arrested Lima, Walsh testified hearrived on the scene. Since Lima was a juvenile, Walsh claimed he contacted the Area 4 Youth Division and toldthem to have a youth officer available as soon as possible. Walsh claimed he went into the interview room atapproximately 12:45 a.m., introduced himself to Lima and informed him of his constitutional rights. That phase ofthe interview lasted approximately 10 to 15 minutes. At that time, according to Walsh, Lima denied his involvementin the shooting.

At approximately 1:30 a.m., Walsh testified he went back into the interview room with youth officerRobert Mihajlov. Walsh claimed the youth officer introduced himself and explained his role in the process, afterwhich they began to discuss the shooting. In an interview that lasted approximately 10 to 15 minutes, Walshtestified that Lima admitted some involvement in the shooting. At 2 a.m., Walsh claims he allowed Kathleen Riverato visit with her son for approximately 10 minutes. He claimed that, upon leaving the interview room, Rivera toldWalsh she had to go home for some medicine. Walsh claimed Rivera left at that time. Walsh next claimed he,Mihajlov and Assistant State's Attorney Michael O'Malley went back into the interview room at approximately 3a.m. O'Malley introduced himself and advised Lima of his rights. He also informed Lima that, should the victimdie, he could be charged as an adult. According to Walsh, Lima again admitted his involvement in the crime. At theconclusion of that interview, Walsh testified he told Lima's mother that she would be allowed to see her son.

Walsh then testified that O'Malley wrote Lima's handwritten statement in Lima's presence. Lima wasallowed to make corrections but never refused to sign the handwritten statement. According to Walsh, Lima neverasked for the presence of an attorney or his mother. Walsh claims no one ever refused to allow Lima's motheraccess to her son and never threatened or physically coerced Lima into signing the statement.

Kathleen Rivera claimed that she got off work at approximately 10 p.m. on the night of the shootings. Shedrove to Ohio and Oakley Streets to pick up her two sons. Rivera claimed she was told that her son was just beingquestioned. Electing to go to the police station instead of waiting at home to hear what would happen with her son,Rivera claimed she arrived at the police station between 11:30 and 11:45 p.m. Rivera spoke with Detective Walsh,who told her she would not be able to immediately speak with her son because the State's Attorney had stepped out. She was told she would be able to speak with her son when the State's Attorney returned. Rivera claims that shehad to ask Walsh to see her son seven or eight times. At some point after she had made a few requests, she claimsWalsh told her she was getting on his nerves and she might not get to see her son at all if she did not stop annoyinghim.

Rivera testified that she finally got to see her son at approximately 2 a.m. She did not get to see her son inprivate, as she claimed six plainclothes police officers were inside the room. She also testified that, when shefinally got to see him, one side of Lima's face was swollen. According to her, she asked Lima in Spanish about theinjury to his face. Lima allegedly responded that he could not talk about it, but he moved his eyes like he was tryingto send a signal for her to drop her line of questioning.

In closing arguments on the motion to suppress, Lima's counsel argued that, because he was 16 years old atthe time of the arrest, Lima should have again been read his Miranda rights before the start of the second interview. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The trial court found that Rivera'sestimate of her arrival time was not accurate. The trial court also found that Walsh was credible and that Rivera didget the chance to be alone with her son after the original oral statement was made and before the handwrittenstatement. Finally, the trial court ruled it was unaware of any case law requiring police to give fresh warningspursuant to Miranda each time they speak with a suspect. Additionally, the trial court denied a pretrial motion inlimine to bar introduction of evidence of Lima's gang involvement.

A jury trial commenced in this case on January 27, 1998. The State first called Salazar, a member of theSatan Disciples street gang, who testified he, Ocun and Rodriguez were passengers in a minivan driven by Martinez. All were members of the Satan Disciples except Ocon, who was a member of the Latino Jivers street gang. According to Salazar, the Satan Disciples and Latino Jivers were on friendly terms. He also claimed there were noweapons in the vehicle. After driving a while they dropped off Martinez at his girlfriend's home then continued todrive on Erie Avenue in Chicago. Erie Avenue is the line of demarcation between the gang territory of the LatinKings and C-Notes. Salazar testified they saw seven or eight men on the sidewalk parallel to the minivan. Salazarclaimed these men were C-Notes and that one of them was Lima. Salazar and Lima had known each other for along time. According to Salazar, Lima jumped off the sidewalk and into the street along the passenger side of thevan. Salazar, seeing Lima, ordered Martinez to increase speed because the C-Notes were outside. Turning, Salazarclaims he saw Lima fumbling with his clothing then heard shots fired. Salazar estimated he heard five or sixgunshots from behind the van. One of the bullets flew past his shoulder, hitting the front metal part of the window,causing a spark. Through the rearview mirror, Salazar claimed he saw Lima standing by himself in the street behindthe van. Salazar testified that, after realizing Rodriguez had been shot, they drove him to the hospital. On cross-examination, Salazar admitted to being a drug user and having been on drugs on the evening in question.

Ocon was the next to testify. He testified that he was a passenger in the van when someone jumped in thestreet and started shooting at them with a chrome gun. Though Ocon could not see the face of the shooter, heclaimed he could tell he was wearing a "hoodie" and a black coat. He also testified he heard six shots fired.

Martinez, currently serving a seven-year term in the Illinois Department of Corrections for arson and drugcharges, testified next. As he slowed down in front of his girlfriend's house, Martinez claimed he saw 10 to 15people standing on the sidewalk. He accelerated when he heard gunshots. Martinez, who had been smokingmarijuana that evening and claimed he did not know what was going on, sped away from the scene. They thenrealized that Rodriguez had been shot in the head and would need to go to the hospital. Martinez testified he droveRodriguez to the Norwegian American Hospital, where they dropped off Rodriguez before going to get his parentsand take them to the hospital. Martinez acknowledged identifying Lima at a lineup and before the grand jury, buttestified at trial that Lima was not the shooter.

Chicago police officer James Shadur testified next. He is an evidence technician assigned to the mobileunit of the crime laboratory. On December 22, 1996, the night in question, Shadur responded to a call of a shootingat 2220 West Erie Avenue in Chicago. When he arrived on the scene, the police had been protecting the crimescene. Shadur spoke with the officers and detectives at the scene. He then photographed the scene and surroundingareas and looked for physical evidence. Shadur found six .9-millimeter cartridge cases on the south side of thestreet. He also found a fired bullet on the sidewalk area of a house on a diagonal line from the crime scene, at 2204West Erie Avenue. This was further east than where he found the cartridge casings.

After he processed the crime scene, Shadur went to Norwegian Hospital to process the van. Hephotographed the van, finding a fired bullet on the front passenger's seat. He also noticed holes in the exterior ofthe van. Additionally, the rear window was shattered and a brake light had a bullet hole through it.

Detective Thomas Flaherty testified next. He was assigned to investigate the shooting with DetectiveDennis Walsh and Detective Carlos Velez. They learned that Rodriguez had been shot in the back of the head andwould likely be transferred from Norwegian American Hospital to Cook County Hospital. Once they arrived atNorwegian American Hospital, they spoke with Martinez. Martinez indicated at the time of the interview that Limawas the shooter. Martinez also indicated that the van was parked in the hospital parking lot. Flaherty examined thevan. He subsequently went to the scene of the shooting, where he saw spent shell casings and a fired bullet. Whilehe was there, Flaherty monitored a radio message that Lima had been arrested. Flaherty next went to the locationwhere Lima was arrested. Lima was taken to Area 4 Violent Crimes by other police officers. After Lima was takeninto custody, Flaherty was present when Lima was identified in a lineup by Martinez and Salazar.

Cook County Assistant State's Attorney Michael O'Malley next testified that he interviewed Martinez andLima at the police station. As to Lima, O'Malley claimed he explained that he was not Lima's lawyer. O'Malleyalso testified he read Lima his Miranda rights after which Lima agreed to waive his rights and talk with him. O'Malley confirmed that, after he explained the different types of statements that could be made, Lima chose to givea handwritten statement.

O'Malley testified that he, Detective Walsh and youth officer Mihajlov left the room to give KathleenRivera a chance to be alone with her son. Lima told O'Malley that his choice was not to have his mother present forthe actual giving of the handwritten statement. O'Malley testified he wrote out the statement. He then had Limaread aloud his Miranda rights and the first few paragraphs of the statement. O'Malley explained he read theremainder of the statement aloud, periodically asking Lima if he wanted to make any corrections or additions to thestatement. Lima indicated that he did not want to change anything.

In the handwritten statement, Lima admitted having been a member of the C-Notes gang since he was 10years old. He knew Martinez since he was five years old by his nickname "the professor." He knew Martinez was amember of the Satan Disciples, enemies of the C-Notes. Lima admitted to keeping a gun in a garbage can behindhis girlfriend's house where he would sometimes sleep. On December 21, 1996, he took the gun from the garbagecan and put it in the waistband of his pants. Armed with the fully loaded gun, Lima went to Tammy Aceituno'shome at 2309 West Grand in Chicago. Once a larger group of C-Notes was present, they went to hang out onOakley Street where Lima met more C-Notes. The group of six decided to go to Erie Avenue, near Hoyne Street. As they were walking eastbound on Erie Avenue, someone yelled out Ruben, which is Martinez' first name. Limaindicated he turned around and saw the van he recognized as belonging to Martinez. Lima, because of the badblood between them, began yelling obscenities at Martinez. He claims Martinez responded in kind. Lima thendrew his gun and began shooting at the van. After being hit by some of the bullets, the van sped off down ErieAvenue.

After the shooting, Lima indicated he ran toward Leavitt Street with the gun at his side. When he reachedthe Holy Rosary Church, Lima lifted a nearby sewer cap and disposed of the gun down the hole. He then went backto Tammy Aceituno's house, where he stayed approximatly 15 minutes until the police arrived. The statementconcluded by stating that he was allowed to meet with his mother a couple of times, was fed, given beverages andallowed to use the washroom when necessary. Additionally, the statement indicates Lima was not threatened orpromised anything in exchange for making his statement.

In concluding the State's case in chief, certain stipulations were introduced. Doctor Segovia, an expert inforensic pathology, would testify that her job as deputy medical examiner required her to perform a post mortem onRodriguez. She found a gunshot entrance wound at the back of the victim's skull. The path of the bullet extendedfrom the entrance wound through his brain where it lodged. In her expert opinion, Rodriguez died as a result of thesingle gunshot wound to the back of his head.

The next stipulation was from Brian Mayland, a forensic evidence examiner for the Illinois State CrimeLab and expert in firearms analysis. Mayland examined the bullet casings from the van and the one retrieved fromRodriguez's head. Each of the bullets found was fired from the same weapon. One of the bullets was damaged, soit could not be compared.

Once the State's case in chief was concluded, Lima made a motion for directed verdict, which was deniedby the trial court. The defense next put on its case-in-chief, starting with Kathleen Rivera. While she was workingat the United Center, some police officers assigned there told her of an announcement on the radio that her sons hadbeen arrested. When she got off work, Rivera went to Ohio and Oakley Streets to pick up her other son Rafael. Upon arrival she saw Rafael in handcuffs against a car. Collecting her sister, Gina Falco, Rivera went to the Area 4police station. Rivera estimated she arrived at the police station at approximately 11:30 p.m. Detective Walsh toldher she could not see Ricardo right away. She was allowed to see Ricardo at approximately 2 to 2:30 a.m., after hewas interviewed by Assistant State's Attorney O'Malley. Rivera testified that she was not allowed to be alone withRicardo as there were five or six plainclothes officers present when she finally got to see him.

Lima testified next. He testified that he was a member of the C-Notes gang since he was 11 years old. Onthe night in question, Lima and several of his fellow C-Notes were walking down Erie Street when they saw the van. Lima claims he saw Salazar and Martinez in the front seat of the van while he was standing in the middle of thestreet. Lima testified that Salazar yelled an obscenity at him. He claimed that he and Martinez had been in anautomobile accident the previous year at which time Martinez allegedly fired gunshots at Lima. A week prior to theincident for which Lima was on trial, Lima testified that Martinez and some of his friends jumped out of a van andchased after him, brandishing baseball bats and golf clubs.

In the case at bar, Lima claims that he saw the van begin to back up toward him. Because he was afraidthat some of the occupants were armed, Lima claims he fired his weapon at the van in self-defense and did notintend to kill anyone. After the shooting, Lima ran to Leavitt Street, stopping at the Holy Rosary Church, where hethrew the gun down a sewer.

Lima testified that, once he was arrested, the police never let him tell his story or explain how the previousconflict with Martinez happened. Lima also claimed that he initially refused to sign the written statement but, afterbeing thrown against a wall by the police, who threatened to arrest his brothers as accessories, Lima signed thestatement. He also claimed he was only allowed to visit with his mother once and not until he signed the statement. Further, Lima claims he was not given the choice as to what kind of statement to make or given the opportunity tosimply tell what happened. According to him, Lima only got the chance to answer yes or no to questions.

On cross-examination, Lima admitted he knew the C-Notes and Satan Disciples were at war. He admittedhe was carrying a 9 millimeter pistol with him that he purchased from a man off the street. While Lima claimed thegun was to protect himself from someone from whom he stole money, he claimed that it was not to protect him fromMartinez. Lima admitted he did not see weapons in the van when it drove by. He also admitted that no one got outof the van prior to the firing of the first shots. According to Lima, he asked for his mother and a lawyer at least 10times but was refused.

The defense next called Pamela Stiglich, who testified to witnessing the baseball bat and golf club incident. She acknowledged she has a conviction for insurance fraud for which she received probation. Stiglich admitted shedid not call the police or report what she saw.

After the defense rested, youth officer Mihajlov testified that, contrary to her testimony, Rivera did get tospeak with her son alone. Mihajlov also testified that Rivera had a second private meeting with her son after he hadspoken with the Assistant State's Attorney. Both of these meetings preceded his written statement. He also testifiedthat Lima did not want his mother present for some of the proceedings. He further testified that no brutality tookplace and no one threatened that Lima's brothers would be held as accessories.

Detective Walsh testified in rebuttal that Rivera was never denied access to her son. He also deniedthrowing Lima against a wall or pipe as was alleged.

The jury found Lima guilty of one count of first degree murder and three counts of attempted first degreemurder. A motion for new trial was made and denied. Lima was sentenced to 60 years on the murder convictionwith a 10-year concurrent term on the attempted murders. He was given a credit for 498 days already served. Onmotion, the sentence was later changed to reflect 50 years on the murder charge with a 10-year consecutive term onthe attempt charges.

Lima argues that the trial court erred in denying the motion to suppress. Lima contends that his Mirandawarnings became stale and should have been repeated during the investigation. He also argues that he wasprevented from seeing his mother within a reasonable time of her arrival at the police station.

According to the Illinois Supreme Court, "in reviewing whether respondent's confession was voluntary, wewill accord great deference to the trial court's factual findings, and we will reverse those findings only if they areagainst the manifest weight of the evidence. However, we will review de novo the ultimate question of whether theconfession was voluntary." In re G.O., 191 Ill. 2d 37, 50 (2000). "'Whether a statement is voluntarily givendepends upon the totality of the circumstances. The test of voluntariness is whether the statement was made freely,voluntarily and without compulsion or inducement of any sort, or whether the defendant's will was overcome at thetime he confessed.'" People v. Miller, 173 Ill. 2d 167, 181 (1996), quoting People v. Clark, 114 Ill. 2d 450, 457(1986). In the case of a juvenile confession, there are extra factors to consider. "'Factors to consider include the[juvenile's] age, intelligence, background, experience, mental capacity, education, and physical condition at the timeof questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mentalabuse by police, including the existence of threats or promises.'" People v. Golden, 323 Ill. App. 3d 892, 900(2001), quoting G.O., 191 Ill. 2d at 54. "Also relevant is the 'concerned adult' factor: whether the juvenile beforeor during interrogation, had an opportunity to consult with an adult interested in his welfare. This factor isespecially relevant 'in situations in which the juvenile has demonstrated trouble understanding the interrogationprocess, he asks to speak with his parents or another "concerned adult," or the police prevent the juvenile's parentsfrom speaking with him.'" Golden, 323 Ill. App. 3d at 900, quoting G.O., 191 Ill. 2d at 55. It is important toremember, however, "[n]o single factor is dispositive, and the failure to confer with a parent before or duringinterrogation does not per se render a juvenile's statement involuntary." Golden, 323 Ill. App. 3d at 900; citingG.O., 191 Ill. 2d at 55.

In this case, the totality of the circumstances supports the trial court's denial of the motion to suppress. While Lima's mother may not have been able to see her son as quickly as she would have otherwise preferred, theevidence shows that she did get to spend time with him. In ruling on the motion to suppress, the trial court foundthat Lima's mother did get access. This was supported by both the statement of Lima and the testimony of hismother, Rivera. The trial court also found credible the statement of Detective Walsh that Rivera got to see her sonalone. The trial court also found sub silencio that it disbelieved the claims that Lima was brutalized, threatened orintimidated while in custody. We find no reason to disturb that ruling of the trial court.

The remaining questions addressed by the trial court in the motion to suppress are whether the Mirandawarnings were stale at the time Lima made his statement and, by extension, whether that statement was ultimatelymade. The Illinois Supreme Court has recently stated that "'fresh Miranda warnings are not required after thepassage of several hours.'" Miller, 173 Ill. 2d at 182, quoting People v. Garcia, 165 Ill. 2d 409, 425 (1995). "Anew set of Miranda warnings is required `only in those situations where a substantial probability exists thatwarnings given at a previous interrogation are so stale and remote that a substantial possibility exists that the suspectwas unaware of his or her constitutional rights at the time subsequent interrogation occurs.' [citation.] The totalityof the circumstances should be considered in determining whether a defendant understands his constitutional rightsin post-Miranda questioning." Miller, 173 Ill. 2d at 182-83, quoting Garcia, 165 Ill. 2d at 425-26. In ruling on themotion, the trial court again found Detective Walsh credible. Accordingly, the trial court found that Lima was givenhis Miranda warnings at approximately 12:45 a.m. The trial court also found that subsequent Miranda warningswere given at 3 a.m. and 3:30 a.m. Additionally, the trial court found that youth officer Mihajlov was present at the1:30, 3 and 3:30 a.m. interviews. Lima argues that Miranda warnings are ephemeral in nature, tending to evaporatelike steam vapor on a bathroom mirror. While it is true that, given enough time between the reading of the warningsand the start of questioning, a defendant, particularly an adolescent, could lose the benefit of them. Based upon theguidance of the Illinois Supreme Court, the standard is as it should be, that the statement "'"was not the product ofignorance of rights or of adolescent fantasy, fright or despair."'" G.O., 191 Ill. 2d at 54, quoting People v.Simmons, 60 Ill. 2d 173, 180 (1975), quoting In Re Gault, 387 U.S. 1, 55, 18 L. Ed. 2d 527, 561, 87 S. Ct. 1428,1458 (1967). Based upon the totality of the record, and the passage of approximately 45 minutes from warning tostatement, there is nothing which compels us to disturb the trial court's conclusions that Lima was aware of hisrights at the time he gave his statement.

Lima next argues that the State violated the trial court's ruling on a motion in limine in its cross-examination of the defendant by introducing evidence of another crime for which Lima was not on trial. Prior totrial, Lima filed a motion in limine seeking to bar certain parts of Lima's oral statement to Detective Walsh frombeing presented to the jury. Specifically, the motion sought to bar the State from having Walsh testify that Limatold him that he had bought a gun to protect himself from a drug dealer from whom Lima had previously stolenmoney. The motion was granted and the State did not use the statement in its case in chief.

During his direct examination, Lima admitted to possessing a gun during the incident. The State askedLima why he had the gun, to which he responded that he acquired the gun for his own protection. The follow-upquestion was asked to determine from whom Lima felt he needed protection. Defense counsel objected to thefollow-up question and not the prior question of why he had the gun at all.

Including the question which generated the objection, the following discussion took place:

"Q. And in the two to three weeks before this shooting happened, youcarried that gun with you, is that correct?

A. Yes, that is.

Q. Wherever you might go, is that correct?

A. Yes.

Q. And when you carried it with you would you normally keep it inyour coat pocket or in your waistband? Where would you keep it?

A. It depends on where I go, but most of the time, I keep it in my - inmy waistband or wherever I can put it.

Q. Because you want to have it handy in case you might need to use it,is that right?

A. Yes.

Q. Why did you get the gun?

A. For my protection.

Q. Well, for your protection from whom?

THE DEFENSE: Objection.

A. For my protection.

THE COURT: Overruled.

THE DEFENSE: We went over this area. Sidebar.

(After the conclusion of the sidebar, the following proceedings were held beforethe jury:)

"THE STATE: Mr. Lima, who did you have the nine millimeter pistolto protect yourself from?

A. My protection.

Q. Excuse me?

A. From my protection.

Q. Who?

THE COURT: For your protection?

A. Yes.

THE COURT: The question is from who?

A. Who?

THE COURT: Who.

A. Somebody I stole money from.

THE COURT: Somebody I stole money from?

A. Yes.

THE COURT: Go ahead.

THE STATE: Was it Ruben Martinez?

A. No, it was not."

The State argues that the line of questioning was proper as relevant to the issue of self-defense since theprobative value outweighed any prejudicial effect because Lima bought the gun to protect himself from someoneother than Martinez. The trier of fact had to determine whether the shooting was an act of aggression or ofprotection. Without allowing that testimony in, the State argues it would have been possible for the jury to get thewrong impression that Lima bought the gun to protect himself from Martinez. The State also argues that, sinceLima chose to testify, his credibility was certainly an issue for the jury to consider.

Evidence of collateral crimes, i.e., crimes for which the defendant is not on trial, is inadmissible if relevantmerely to establish the defendant's propensity to commit crimes. People v. Lindgren, 79 Ill. 2d 129, 137 (1980),citing Michelson v. United States, 335 U.S. 469, 475-76, 93 L. Ed. 168, 173-74, 69 S. Ct. 213, 218-19 (1948). Thesound rationale for that rule is that "[s]uch evidence overpersuades the jury, which might convict the defendant onlybecause it feels he or she is a bad person deserving punishment." Lindgren, 79 Ill. 2d at 137. "Few evidentiaryissues receive as much reviewing court attention as the use of other offense evidence in criminal cases. While theprinciples of law that apply to other offense evidence are easy to find and summarize, their application in aparticular case, being fact-intensive, is a different matter." People v. Bedoya, 325 Ill. App. 3d 926, 937 (2001). The standard for admissibility of other crimes evidence has not been clearly established in Illinois. It is more thanmere suspicion, but less than beyond a reasonable doubt. Bedoya, 325 Ill. App. 3d at 938, citing M. Graham,Cleary & Graham's Handbook of Illinois Evidence