{ "id": 2621536, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICHOLAS DEVALLE, Defendant-Appellant", "name_abbreviation": "People v. Devalle", "decision_date": "1989-03-17", "docket_number": "No. 1\u201487\u20141034", "first_page": "1", "last_page": "12", "citations": [ { "type": "official", "cite": "182 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "weight": 3, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "345 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428306 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0105-01" ] }, { "cite": "407 N.E.2d 1121", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3184791 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0278-01" ] }, { "cite": "366 N.E.2d 1085", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3384264 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0545-01" ] }, { "cite": "396 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 780", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3290595 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0780-01" ] }, { "cite": "157 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2760972 ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0192-01" ] }, { "cite": "398 N.E.2d 351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5610367 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0230-01" ] }, { "cite": "197 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827929 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0437-01" ] }, { "cite": "96 S. Ct. 2243", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "95 S. Ct. 2139", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 14, "year": 1966, "pin_cites": [ { "page": "615-16" }, { "page": "96" }, { "page": "616" }, { "page": "96" }, { "page": "611" }, { "page": "94" }, { "page": "618" }, { "page": "98" } ], "opinion_index": 1, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "422 U.S. 171", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9429 ], "weight": 15, "year": 1976, "pin_cites": [ { "page": "180-81" }, { "page": "107" }, { "page": "2138-39" }, { "page": "182" }, { "page": "108" }, { "page": "2139", "parenthetical": "Douglas, J., concurring" }, { "page": "182-83" }, { "page": "108" } ], "opinion_index": 1, "case_paths": [ "/us/422/0171-01" ] }, { "cite": "57 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406571 ], "pin_cites": [ { "page": "231-32" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/57/0228-01" ] }, { "cite": "93 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3102415 ], "year": 1974, "pin_cites": [ { "page": "428-30" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/93/0421-01" ] }, { "cite": "24 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802161 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "353-54" }, { "page": "354" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/24/0350-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "pin_cites": [ { "page": "327" }, { "page": "579" }, { "page": "2793" } ], "opinion_index": 1, "case_paths": [ "/us/443/0307-01" ] } ], "analysis": { "cardinality": 1058, "char_count": 27362, "ocr_confidence": 0.759, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3050096743091972 }, "sha256": "4ce2910415eb8732417886030c3f7f6923ebf10a32e90c97be65da68d261900b", "simhash": "1:aeeabc2c724609f5", "word_count": 4587 }, "last_updated": "2023-07-14T18:08:14.831486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICHOLAS DEVALLE, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MURRAY\ndelivered the opinion of the court:\nFollowing a joint bench trial, defendant was found guilty of attempted murder and sentenced to 14 years in prison. On appeal, defendant contends that the trial court erred in considering facts not in evidence and that the State\u2019s evidence was flawed.\nAt the trial there was testimony from Jesus Rodriguez, the victim, defendant and defendant\u2019s girlfriend, Annette Muniz. Rodriguez testified that on August 28, 1986, he saw a black Oldsmobile Delta 88 drive past while he was standing on the corner of California and Hirsh in Chicago. Rodriguez stated that there were four men in the car, and he identified the driver of the car as defendant. He also identified one of the passengers in the back seat as codefendant Arturo Delfi.\nAfter the car drove away, Rodriguez returned to 1437 North California to wait for his mother. Approximately one-half hour later, while standing outside waiting, Rodriguez saw the black Delta 88 driving down California Avenue. The car came to a stop about 25 feet from Rodriguez, whereupon the person in the front passenger\u2019s seat made a sign with his hand and shouted \u201cLatin Kings.\u201d Rodriguez responded by saying \u201c[f]uck you.\u201d At that point, the front-seat passenger took a gun from the glove compartment and fired three or four shots, striking Rodriguez once in the chest. Rodriguez was taken to the Cook County Hospital, where he received treatment.\nAnnette Muniz testified for the defendant. Muniz stated that she and defendant were dating and that she had known him for about one year. According to Muniz, she and defendant were sleeping at their friend\u2019s house when this incident occurred.\nDefendant also testified at the trial. He stated that he was no longer a \u201cLatin King\u201d and that he owned a black Delta 88, but he did not have it on the day of the incident. According to defendant, he was arrested on August 23, 1986, for driving without a license. The next morning he discovered his car had been stolen. Defendant, however, did not report the theft to the police. He claimed that he did not make out a police report because he did not have a title to the car. Defendant denied being involved with the murder attempt.\nFollowing the trial, defendant was found guilty as charged. Codefendant was found not guilty.\nOn appeal, defendant contends that the trial court erred in considering facts not in evidence. Defendant maintains that the trial court\u2019s comments that defendant did not surrender and that defendant made certain comments to the police about the shooting were facts not in evidence. Defendant, therefore, claims that he was entitled to a new trial. We disagree.\nWhile it is true that in a bench trial it will be presumed that the trial judge considered only competent evidence (People v. Robinson (1964), 30 Ill. 2d 437, 197 N.E.2d 45), this presumption is overcome if it affirmatively appears from the record that the improper evidence was considered by the court. (People v. Cepolski (1979), 79 Ill. App. 3d 230, 398 N.E.2d 351; People v. Grodkiewicz (1959), 16 Ill. 2d 192, 157 N.E.2d 16.) In this case, we find that it is not affirmatively apparent from the record that the trial court considered incompetent evidence. Clearly, there was sufficient evidence outside of the court\u2019s comments to convict defendant. Moreover, it does not affirmatively appear from the record that the trial court considered improper evidence, especially when defendant was found guilty on January 27, 1987, and the comments in question were made on April 2, 1987. Therefore, for the above reasons, we see no reason to disturb the trial court\u2019s judgment.\nDefendant further maintains that his conviction should be reversed because the circumstantial evidence against him was flawed. Defendant argues that the State did not present sufficient evidence to prove him guilty by accountability. Ill. Rev. Stat. 1987, ch. 38, par. 5\u2014 2(c).\nIn People v. Cawley (1979), 77 Ill. App. 3d 780, 396 N.E.2d 865, this court held that although a defendant does not directly and personally murder the victim, he could be held accountable for such murder where he solicited, aided, abetted or attempted to aid codefendant in planning the commission of the offense. Moreover, defendant\u2019s participation must occur before or during the commission of the offense with concurrent specific intent to promote or facilitate commission of the offense. People v. Cawley (1979), 77 Ill. App. 3d 780, 396 N.E.2d 865.\nIn People v. Daniels (1977), 51 Ill. App. 3d 545, 366 N.E.2d 1085, the court found the driver of a getaway car accountable. Also, in People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121, the court stated that when the plan, express or implicit, calls for a person to sit in a car while the crime is being committed and then spirit the others away from the scene, the driver\u2019s participation is deemed to occur during the commission of the crime, not after. In addition, proving defendant\u2019s specific intent to promote or facilitate the commission of the crime may be inferred from the circumstances surrounding the commission of the act. See People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480.\nWe note that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant\u2019s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The relevant inquiry is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.\nAfter viewing the evidence in a light most favorable to the prosecution, we see no reason to disturb the judgment of the trial court.\nAccordingly, the judgment of the circuit court is affirmed. As part of our judgment, we grant the State\u2019s request and assess defendant $50 as costs for this appeal.\nJudgment affirmed.\nCOCCIA, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE MURRAY" }, { "text": "JUSTICE PINCHAM,\ndissenting:\nI dissent. It clearly and affirmatively appears from the record before us on appeal that in finding the defendant guilty and in overruling the defendant\u2019s motion for a new trial, the trial court wrongly relied on and considered highly improper facts and circumstances which were not in evidence. The defendant\u2019s conviction and 14 years\u2019 imprisonment sentence should therefore be reversed and the cause should be remanded for a new trial. A brief summary of the facts of the case, the trial court\u2019s comments and the procedural posture in which the comments were made permit no other valid conclusion.\nThe defendant was charged with attempted murder. The State\u2019s evidence was that in a street gang confrontation and retaliation, the defendant drove his car to a location at which a passenger in the defendant\u2019s car fired shots which struck the pedestrian-victim and the defendant drove off. The shooting victim at trial identified the defendant as the driver of the car.\nThe defendant testified at trial and denied any involvement in the shooting and denied being at the crime scene. He related that at the time the offense was committed he was asleep with his girlfriend, Annette Muniz, in the home of friends, at which he was momentarily residing, some distance from the crime scene. Annette Muniz likewise so testified. The trial court rejected the defendant\u2019s defense and found the defendant guilty on January 27,1987.\nThe defendant\u2019s motion for a new trial was filed on February 27, 1987, and each of its five paragraphs, in varying forms, asserted that the evidence failed to prove the defendant guilty beyond a reasonable doubt. At the hearing of the defendant\u2019s motion for a new trial on April 2, 1987, the defendant\u2019s attorney reviewed the evidence in detail and vociferously argued that the evidence did not prove the defendant\u2019s guilt beyond a reasonable doubt. In responding to the defense attorney\u2019s argument that the evidence was insufficient to sustain the trial court\u2019s guilty finding, and in denying the motion for a new trial, the trial court stated:\n\u201cTHE COURT: I\u2019m going to deny your motion, Mr. Stanton. In this case the defendant is connected with the car in question. The car comes around at least two times. The car stops according to the victim here. Gang slogans are thrown back and forth. The victim yells an epitaph. A gun is pulled out of the glove compartment of the car that the defendant is connected with. In fact I think he\u2019s shown to be the owner of the car. Shots are fired.\nThe defendant and occupants flee in that car. The defendant does not stop and aid the victim in any manner, shape and form which is one of the factors that are being taken into consideration for assessing accountability and whether there\u2019s sufficient evidence in the record to show intent and accountability.\nThe defendant does not surrender. The defendant when he\u2019s arrested does not testify, does not state to the police, yes, I was the driver hut I never knew that the shooting was going to take place. I never knew that the passenger was going to shoot. He doesn\u2019t get on the witness stand and state the same thing.\n* * *\nHe denies ever being involved in this ***. So I will deny the post-trial motion.\u201d (Emphasis added.)\nFirst, it appears that the trial court was in error when it stated that \u201cThe defendant does not surrender.\u201d The defense attorney promptly corrected the trial court, stating:\n\u201cJudge, I just want to correct before I go in mitigation one thing that Your Honor said. You said that Mr. Devalle did not turn himself in but *** he called the police and they met at an appropriate spot and he did turn himself in.\u201d\nThe trial court responded that the defendant turned himself in to the police \u201cafter the word went on the street that the police officers were looking for him.\u201d This statement by the trial court is totally unsupported by the record on appeal before us.\nSecond, the trial court\u2019s statements that when the defendant was arrested he did not \u201cstate to the police, yes, I was the driver but I never knew that the shooting was going to take place. I never knew that the passenger was going to shoot\u201d are also totally unsupported by the evidence. There is no evidence in the record of what the defendant told the police when he was arrested. The record is completely silent on whether the defendant told the officers anything when he was arrested. It is elementary that \u201cthe court erred in considering matters which were not properly in the record,\u201d that, \u201cthe deliberations of the trial judge are limited to the record made before him during the course of the trial,\u201d and that \u201c[a] determination made by the trial judge based upon *** private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.\u201d People v. Wallenberg (1962), 24 Ill. 2d 350, 353-54; People v. Yarbrough (1982), 93 Ill. 2d 421, 428-30; People v. Harris (1974), 57 Ill. 2d 228, 231-32.\nThird, there can be no rational doubt and it is glaringly clear from the trial court\u2019s foregoing comments and the posture of the trial proceedings in which the comments were made that in finding the defendant guilty and in denying his motion for a new trial, the trial court improperly relied on and considered that when the defendant was arrested, he did not tell the police that (1) he was the'driver of the car; (2) he did not know that the shooting was going to take place; and (3) he did not know that the passenger was going to shoot.\nFourth, what the defendant refused to tell the officers, just as the defendant\u2019s silence upon his arrest, is inadmissible as evidence against the defendant as violative of constitutional due process and his privilege against self-incrimination. A fortiori, a trial court\u2019s consideration of and reliance on what the defendant refused to tell his arresting officer in finding a defendant guilty and/or in denying a defendant\u2019s motion for a new trial, which was not in evidence, violate constitutional due process and the defendant\u2019s privilege against self-incrimination. Most assuredly, the trial court\u2019s reliance on and consideration of what the defendant did not tell his arresting officer when he was arrested, of which there was no evidence, in finding the defendant guilty and/or in overruling the defendant\u2019s motion for a new trial clearly violated constitutional due process, the defendant\u2019s privilege against self-incrimination, as well as the expressed landmark holdings of the Supreme Court of the United States in United, States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.\nAs a prophylactic means of safeguarding fifth amendment rights, Miranda requires that a person taken into custody be immediately informed of his right to remain silent and that anything he says may be used against him, of his right to counsel and to confer with counsel before answering any questions and to have his counsel present during any interrogation of him. Thus, the defendant\u2019s silence or his refusal to tell the arresting officer that he was the driver of the car but that he did not know the shooting was going to take place or that the passenger was going to shoot, as stated by the trial court in the case at bar, may have been occasioned by the defendant\u2019s exercise of his Miranda rights. The trial court\u2019s reliance on or consideration of the defendant\u2019s declination to reveal to his arresting officers the information demanded by the learned trial judge clearly violates the mandates, holdings, meaning and spirit of Miranda.\nThe defendant in United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, was identified on the street by a robbery victim as one of the persons who had just robbed him of $96. The defendant fled, the police gave chase, arrested him and gave him his Miranda warnings. The defendant had $158 in his possession, and in response to the arresting officers\u2019 question of where did he get the money, the defendant remained silent. At trial, the defendant testified that he had received the money which was in his possession when he was arrested earlier that day from his estranged wife. The prosecutor asked the defendant on cross-examination if he told the arresting officers his source of the money, to which the defendant negatively responded. When asked by the prosecutor why not, the defendant stated that he didn\u2019t feel that it was necessary at the time. The trial court instructed the jury to disregard that cross-examination but refused to declare a mistrial. The defendant was convicted. The court of appeals reversed, holding that the prosecutor\u2019s questions of the defendant about his foregoing silence when he was arrested impermissibly prejudiced the defendant\u2019s defense and infringed upon his right to remain silent under Miranda.\nThe Supreme Court granted certiorari in Hale and found that the probative value of the defendant\u2019s pretrial silence was outweighed by the prejudicial impact of admitting it into evidence. The Supreme Court concluded and held in Hale:\n\u201cWe now conclude that the respondent\u2019s silence during police interrogation lacked significant probative value and that any reference to his silence under such circumstances carried with it an intolerably prejudicial impact.\nAccordingly, we hold that *** it was prejudicial error for the trial court to permit cross-examination of respondent concerning his silence during police interrogation, and we conclude, in the exercise of our supervisory authority over the lower federal courts, that Hale is entitled to a new trial.\u201d 422 U.S. at 180-81, 45 L. Ed. 2d at 107, 95 S. Ct. at 2138-39.\nJustice Douglas concurred in the judgment in Hale, stating:\n\u201c T can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it.\u2019 [Citation.] *** I do not accept the idea that Miranda loses its force in the context of impeaching the testimony of a witness. [Citation.] In my opinion Miranda should be given full effect.\nI also believe, as does my Brother White, that given the existence of Miranda due process is violated when the prosecution calls attention to the silence of the accused at the time of arrest.\u201d 422 U.S. at 182, 45 L. Ed. 2d at 108, 95 S. Ct. at 2139 (Douglas, J., concurring).\nJustice White also concurred in Hale, on Miranda grounds, expressing his views as follows:\n\u201c[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. *** Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case. I would affirm on this ground.\u201d (Emphasis added.) 422 U.S. at 182-83, 45 L. Ed. 2d at 108, 95 S. Ct. 2139-40 (White, J., concurring).\nHaving affirmed the judgment of the court of appeals which reversed the defendant\u2019s conviction and remanded for a new trial in Hale on the probative value \u2014 prejudicial impact ground, the Supreme Court did not reach the broader Miranda constitutional due process and self-incrimination issue also presented in Hale. It reached these constitutional grounds, however, in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.\nIn Doyle, the defendants, Doyle and Wood, were charged with the sale of marijuana to a narcotics bureau informant. At their trial they testified that they were framed by the informant, that they were engaged in an unsuccessful purchase of marijuana from the informant, who, the defendants also testified, supplied the marijuana the agents recovered from the informant. The prosecutor cross-examined the defendants on their failure to tell the arresting agents the frame-up story and their trial version of the transaction when the agents arrested them. The defendants were convicted, and before the State appellate tribunal they contended that the trial court erred in allowing the prosecutor to cross-examine them on their post-arrest silence. The State appellate tribunal affirmed the defendants\u2019 convictions and, in rejecting the defendants\u2019 contention, in specious language similar to that used by the majority herein, stated: \u201cThis was not evidence offered by the state in its case in chief as a confession by silence or as substantive evidence of guilt but rather cross examination of a witness as to why he had not told the same story earlier at his first opportunity. We find no error in this. It goes to credibility of the witness.\u201d 426 U.S. at 615-16, 49 L. Ed. 2d at 96, 96 S. Ct. 2243.\nIn the case at bar, it is impossible to discern on what legal theory or basis the trial judge relied and considered the defendant\u2019s refusal to tell the arresting officers that he was the driver of the car but that he did not know that the passenger was going to shoot the victim. Under the Supreme Court\u2019s holding in Doyle, the basis of the trial court\u2019s reliance ther\u00e9on is irrelevant. Under Doyle, it was the trial court\u2019s reliance on the defendant\u2019s refusal to reveal anything to the arresting officer, i.e., the defendant\u2019s silence, that violates constitutional due process.\nIn Doyle, the Supreme Court stated, \u201cWe granted certiorari to decide whether impeachment use of a defendant\u2019s post-arrest silence violates any provision of the Constitution, a question left open last term in United States v. Hale (1975), 422 U.S. 171 ***.\u201d (426 U.S. at 616, 49 L. Ed. 2d at 96, 96 S. Ct. at 2244.) The Court in Doyle identified the question before it for review and its decision on that question, as follows:\n\u201cThe question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant\u2019s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. We conclude that use of the defendant\u2019s post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners.\u201d 426 U.S. at 611, 49 L. Ed. 2d at 94, 96 S. Ct. at 2241.\nThe Supreme Court additionally pointed out and held in Doyle:\n\u201c[Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person\u2019s silence to be used to impeach an explanation subsequently offered at trial * * *\nWe hold that the use for impeachment purposes of petitioners\u2019 silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.\u201d 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.\nThe officers who arrested the defendant in the case at bar did not testify at the defendant\u2019s trial, or, so far as I am able to determine from the record before us on appeal, at any other pretrial or post-trial proceedings. There were none. The defendant was not called upon during his trial testimony to relate any facts or circumstances of his arrest. An exhaustive search of the record before us on appeal does not reveal that the defendant turned himself in \u201cafter the word went on the street that the police officers were looking for him,\u201d as the trial court stated. This statement, too, by the trial court is evidentially baseless.\nIt is reasonable to assume that the defendant was arrested, and that in compliance with Miranda, the arresting officers advised the defendant of his Miranda warnings. Moreover, the trial court stated in denying the defendant\u2019s motion for a new trial, as previously set forth, that the defendant was arrested, and that at the time of the defendant\u2019s arrest, he did not state to the police that he was the driver of the car but did not know that the passenger was going to shoot. Thus, having premised its statement on the logical and practical assumption that the defendant was arrested, and then predicated its ruling, denying the defendant\u2019s motion for a new trial, on this assumed premise, it is therefore appropriate for me to likewise review same and pass judgment thereon, as though the defendant was arrested and properly admonished of his Miranda rights.\nFrom the above and foregoing, it is clear to me that in finding the defendant guilty and in overruling the defendant\u2019s motion for a new trial, the trial court improperly relied on and considered the inappropriate facts and circumstances of the defendant\u2019s refusal to tell the officers when he was arrested that he was the driver of the car but did not know that the shooting was going to take place, or that the passenger was going to shoot. This violated the defendant\u2019s Federal and State constitutional rights to due process and his privilege against self-incrimination, and the spirit, purpose, letter, language and holdings of the United States Supreme Court noted decisions in Miranda, Hale and Doyle.\nThe majority\u2019s assessment of the trial court\u2019s foregoing comments \u201cthat it is not affirmatively apparent from the record that the trial court considered incompetent evidence\u201d (182 Ill. App. 3d at 3) is simply the epitome of intellectual ostrichism. Moreover, the majority\u2019s statement, that the presumption that a trial judge considered only competent evidence is overcome if it affirmatively appears from the record that the improper evidence was considered by the trial judge, in the case at bar is a meaningless shibboleth. (Jackson v. Virginia (1979), 443 U.S. 307, 327, 61 L. Ed. 2d 560, 579, 99 S. Ct. 2781, 2793.) The majority fallaciously concludes that because the trial court had found the defendant guilty when it uttered its comments, which reveals that the trial court wrongly considered the improper facts and circumstances that were not in evidence in finding the defendant guilty, such post-finding comments cannot be relied upon to establish that the trial judge considered what he therein said he considered in finding the defendant guilty. This reasoning is nonsensical. The majority\u2019s comment that \u201cthere was sufficient evidence outside of the court\u2019s comments to convict defendant\u201d (182 Ill. App. 3d at 4) is totally irrelevant.\nEach of these aforementioned contentions on which the majority relies in the case at bar were rejected by the supreme court in People v. Wallenberg (1962), 24 Ill. 2d 350, 354, in the following language, clearly and uniquely applicable to the case at bar:\n\u201cWhile the evidence appearing in the record may be sufficient to establish the guilt of the defendant, the credibility of defendant and the defense of alibi were minimized and, in fact, entirely negated by the trial court\u2019s resort to personal beliefs.\nThe rule is clear that when the trial court is the trier of the facts every presumption will be accorded that the judge considered only admissible evidence and disregarded inadmissible evidence in reaching his conclusion. [Citations.] Nevertheless the trial Judge\u2019s statement, incorporated in the record, that he had considered matters which were not in evidence necessarily rebuts this presumption. Under the circumstances there is no alternative but to reverse and remand for a new trial.\u201d\nRegarding the sufficiency of the evidence, the prosecutor\u2019s complete case against the defendant was the uncorroborated single identification testimony of the victim. Although an uncorroborated single identification may be sufficient to convict, in the case at bar, however, the trial court apparently concluded that it was not, for the trial court also relied on the defendant\u2019s silence and refusal to state to the arresting officers that he was the driver but did not know that the passenger was going to shoot the victim in finding the defendant guilty and in denying the defendant\u2019s motion for a new trial. The trial court erroneously and unconstitutionally did so.\nFor the reasons I have stated, the defendant\u2019s conviction should be reversed and the cause should be remanded for a new trial. Accordingly, I dissent.", "type": "dissent", "author": "JUSTICE PINCHAM," } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICHOLAS DEVALLE, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201487\u20141034\nOpinion filed March 17, 1989.\nRehearing denied May 8, 1989.\nPINCHAM, J., dissenting.\nRandolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0001-01", "first_page_order": 23, "last_page_order": 34 }