{ "id": 887277, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR ALMENDAREZ et al., Defendants-Appellants", "name_abbreviation": "People v. Almendarez", "decision_date": "1994-08-18", "docket_number": "Nos. 1-90-1863, 1-91-0171 cons.", "first_page": "639", "last_page": "649", "citations": [ { "type": "official", "cite": "266 Ill. App. 3d 639" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "480 N.E.2d 1147", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 582", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3635584 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0582-01" ] }, { "cite": "599 N.E.2d 1220", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "233 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2688797 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0971-01" ] }, { "cite": "609 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. 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App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099300 ], "weight": 4, "pin_cites": [ { "page": "305-06" }, { "page": "305" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0298-01" ] } ], "analysis": { "cardinality": 990, "char_count": 21198, "ocr_confidence": 0.811, "pagerank": { "raw": 8.19352427328155e-08, "percentile": 0.47578121349931984 }, "sha256": "fe24c1f30765fc026cb71a08cc06cad71e159061e49943438c969c45f8df2fd5", "simhash": "1:e66235a479607657", "word_count": 3546 }, "last_updated": "2023-07-14T15:25:32.104609+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. ARTHUR ALMENDAREZ et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nAfter a trial before separate juries, Arthur Almendarez and Francisco Nanez were convicted of aggravated arson and the murder of two persons who died in the fire. The court sentenced each defendant to natural life in prison without parole. We consolidated their appeals and now affirm the convictions.\nJohn Galvan, a third defendant, was tried separately. We affirmed his conviction for aggravated arson and murder in People v. Galvan (1993), 244 Ill. App. 3d 298, 614 N.E.2d 391. The narrative of the crime and arrests appears in Galvan, and so we do not repeat it here.\nOn appeal Almendarez raises eight issues and Nanez five. We first address the issues raised by Almendarez.\nAlmendarez argues that the trial court erred when it denied his motion to quash the arrest and suppress the subsequent statement. Detective Switski testified at the hearing on the motion to quash. He stated that he spoke with Jose Ramirez, Soccoro Flores, Michael Almendarez, and John Galvan before he arrested Arthur Almendarez.\nJose Ramirez told Detective Switski that seconds before the fire started he saw John Galvan with a person named \"Michael\u201d and two other men walking together about a half block away from the house on 24th Place. Ramirez identified a photo of Michael Almendarez as the man he saw walking with John Galvan. The police brought Michael Almendarez and John Galvan to the station. Michael Almendarez stated that Galvan and Nanez said they started the fire. They told him that Nanez threw a bottle full of gas at the house and, when it did not ignite, Galvan lit it with a cigarette.\nGalvan confessed and stated to police that he, Nanez, and Arthur Almendarez agreed to \"burn out\u201d a rival gang member who lived on 24th Place near Rockwell. Galvan said Nanez and Almendarez bought the gas and Nanez threw the bottle filled with gas at the house. Gal-van further admitted that he threw a lit cigarette at the house and started the fire.\nSoccoro Flores told police she saw three Hispanic men standing in an alley on 24th Place moments before the fire. She then saw one of the men throw something and the house catch on fire.\nThe police then arrested Arthur Almendarez on the sidewalk in front of his house.\nAlmendarez contends he was arrested without probable cause. We disagree. Probable cause exists when the facts and circumstances known to the officers are such that a reasonable person would believe the suspect has committed a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475.) Probable cause may be established by an accomplice where he makes a statement against his penal interest or the statement corroborates what the police already know. People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998.\nIn James, as here, the defendant was implicated by an accomplice who confessed and described the actions of both parties. The court held that a statement of an accomplice made while in police custody, implicating another, may be probable cause to arrest the person implicated if there is some indicia of reliability. (James, 118 Ill. 2d at 225.) The James court set out three elements which enhance the reliability of such a statement: (1) it is against penal interest; (2) it was not made in response to promises of leniency or other inducements; and (3) it is supported by facts learned through police investigation. James, 118 Ill. 2d at 224-25.\nHere Galvan implicated himself as well as Almendarez in the arson. His admission to the police was not made in response to a promise of leniency or other inducement. It is supported by facts the police learned from talking with Jose Ramirez, Soccoro Flores, and Michael Almendarez.\nSecond, Almendarez argues that he was denied a fair trial when the court allowed Jose Ramirez to testify that John Galvan was a member of a gang. The State responds that the evidence was properly admitted because it was relevant to prove motive, and we agree.\nGang evidence is admissible to show a common purpose or design or to provide a motive for an otherwise inexplicable act. (People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900.) The probative value of such evidence outweighs its prejudicial effect and the trier of fact may consider it. People v. Buchanan (1991), 211 Ill. App. 3d 305, 320, 570 N.E.2d 344.\nHere Detective Hanrahan testified that Almendarez admitted Galvan told him he was having problems with some \"rival\u201d gang members living in the area and wanted to burn their house down. The testimony that Galvan was a gang member and wanted to set fire to a rival gang member\u2019s house was the motive for an otherwise inexplicable act. In measuring prejudicial impact, we note that no one accused Almendarez of being a gang member. When the State asked Ramirez, \"Do you know if Arthur Almendarez, the defendant, was a member of any street gang?\u201d Ramirez answered, \"I never seen him, you know; I never seen him.\u201d\nAlmendarez\u2019s third argument is that he was prejudiced by repeated references to the court-reported statements of codefendants. Almendarez takes issue with the trial testimony of Assistant State\u2019s Attorney Joel Leighton, who was assigned to the felony review unit on June 8, 1987, and called to the station on that night. Leighton interviewed John Galvan and then Arthur Almendarez. Almendarez then made a written statement. At this point in his testimony, Leigh-ton read to the jury Almendarez\u2019s statement admitting involvement in the crime. Leighton next testified that, after Almendarez made his statement, he spoke with Nanez for about 10 minutes. Leighton then interviewed some other witnesses he did not identify and called for a court reporter. He was present when two court-reported statements were made. The court reporter typed the statements, and Leighton reviewed them with the persons who made them.\nAlmendarez claims this testimony \u201cwent beyond what was necessary to describe the investigation and arrest.\u201d We disagree. Leighton did not reveal the substance of his conversations with the nontestifying codefendants, only that conversations had taken place in the course of his investigation of the arson. Illinois courts have held this testimony to be proper, even if a logical inference may be drawn that the witness took subsequent steps as a result of the substance of the conversation. People v. Jones (1992), 153 Ill. 2d 155, 606 N.E.2d 1145.\nAlmendarez\u2019s fourth contention is that the prosecutor made improper remarks in closing argument which denied him a fair trial. He has waived review of the issue by failing to properly object at trial and include the objections with specificity in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) We decline to examine this issue under the plain error doctrine in view of the overwhelming evidence of guilt.\nAlmendarez\u2019s fifth contention is that the trial court erred in finding that the State offered race-neutral explanations for peremptory challenges to exclude two Hispanic veniremembers in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Because the State explained its use of peremptory challenges, we do not address the moot issue of whether Almendarez has shown a prima facie case of racial discrimination. (See Hernandez v. New York (1991), 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866.) We will not overturn the court\u2019s finding that the State\u2019s explanations were race-neutral unless it is clearly erroneous. People v. Andrews (1993), 155 Ill. 2d 286, 293-94, 614 N.E.2d 1184.\nThe State explained that it excused Elvira DeBorde because she spoke English and Spanish fluently. At least two witnesses were scheduled to testify through a Spanish-English translator. The State explained that it did not want to risk bilingual jurors gleaning nuances from testimony that other jurors might not hear. The State excused Concepcion Sierra because she worked as a teacher\u2019s aide at an elementary school when Francisco Nanez attended the school and because the school is near the crime scene.\nWe conclude that the trial court\u2019s finding was not clearly erroneous. Almendarez does not contend that a juror shared any of the characteristics of either Sierra or DeBorde. It is race-neutral for the State to believe that DeBorde might pick up nuances from witnesses testifying through an interpreter. It is also race-neutral for the State to believe that Sierra might discover she knew Nanez or heard or read about the crime.\nAlmendarez\u2019s sixth argument is that the court abused its discretion when it overruled three defense objections at trial. The first happened during the testimony of William Walton, a gas station attendant who sold gas to an Hispanic man on the night of the fire. Walton testified that the man had a milk container but no gas can. Walton said the man told him that his car had run out of gas a few blocks away, so Walton sold him the gas. Almendarez argues that the man\u2019s statement is hearsay and improperly admitted. It is not. The context of the examination makes clear that the statement was offered, not to prove that the man\u2019s car had run out of gas, but to show why Mr. Walton sold the man gas even though he did not have a gas container.\nThe second objection occurred during testimony by Blanca Martinez whose two brothers died in the fire. She began to cry while testifying. Defendant objected and asked for a mistrial which the court denied. A genuine emotional outburst by a witness does not require a mistrial. (People v. Smith (1993), 242 Ill. App. 3d 344, 609 N.E.2d 857.) Here the State did not provoke Martinez\u2019s display of emotion. The court was in the best position to asses the impact that this incident had on the jury. We find the court did not abuse its discretion.\nThe third objection occurred during the testimony of Detective Scheithauer, who testified to photographs admitted in evidence. He showed where stairs led and where tiles burned in a photograph of the house. Almendarez fails to show how this testimony unfairly prejudiced him.\nAlmendarez\u2019s seventh argument is that the aggravated arson statute is unconstitutional. (See Ill. Rev. Stat. 1991, ch. 38, par. 20\u2014 1.1.) He adopts the defense argument on this issue in Galvan (244 Ill. App. 3d at 305-06). We adhere to our reasoning rejecting that argument. See Galvan, 244 Ill. App. 3d at 305.\nWe next address the Nanez trial. His statement was admitted and published to the jury. In it, he admitted that John Galvan told him that he wanted to burn somebody\u2019s house down because Galvan had some kind of difficulty with the person. Nanez then stated that Galvan and Almendarez \"convinced me to go along with it.\u201d He went to the gas station and watched Galvan and Almendarez buy gas and put it into a milk container. The three men then drove to an alley near 24th Place, where Almendarez found an empty liquor bottle. Galvan poured the gas into the bottle. Nanez then stated, \"we found a piece of clothing from a cocktail bomb.\u201d He stated that Galvan lit the cloth and threw the bottle through the window of the house. Nanez then left with Galvan and Almendarez. The defense proceeded on the theory that the statement and evidence were insufficient to show Nanez\u2019s involvement in the crime. The jury found Nanez guilty of murder and aggravated arson.\nNanez first argues that the prior inconsistent statement of Michael Almendarez was erroneously admitted as substantive rather than impeaching evidence. Michael Almendarez made a written statement that Galvan and Nanez told him they started the fire. He stated that they said Nanez threw a bottle of gas at the house and Galvan ignited the gas. At trial Michael Almendarez denied the statement and claimed he made it because the police coerced him. The court allowed the State to impeach Michael Almendarez with the written statement. The State then made this reference to the statement in closing argument:\n\"You heard *** from Michael Almendarez and you heard that a couple weeks after the fire, in early October of 1986, [Nanez is] out on the street and he runs into Michael Almendarez *** and he\u2019s with John Galvan and they start talking, friend to friend. And you heard what [Nanez] said, 'We\u2019re the ones that started the fire. I threw the bottle. It broke but didn\u2019t ignite and John Galvan walked up and threw a match on it and it ignited.\u2019 *** [T]here are two versions that you\u2019ve heard. One, a version from Michael Almendarez ***. *** [U]nder either version, ladies and gentlemen, he is guilty.\u201d\nUnder Illinois law, prior inconsistent statements may be admitted as substantive evidence under section 115 \u2014 10.1 of the Code of Criminal Procedure of 1963 (Ill.Rev. Stat. 1989, ch. 38, par. 115 \u2014 10.1) when certain conditions are met. The State concedes that Michael Almendarez\u2019s statement does not satisfy the conditions for admission under section 115 \u2014 10.1 because it does not relate to an event within personal knowledge. (See Ill. Rev. Stat. 1989, ch. 38, par. 115\u2014 10.1(c)(2); People v. Cooper (1989), 188 Ill. App. 3d 971, 544 N.E.2d 1273.) But the State argues that the error is harmless because there was abundant evidence to sustain the Nanez verdict and no reasonable probability that the verdict would have been different had the comment not been made.\n\"When the competent evidence in the record establishes the defendant\u2019s guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result, the conviction may be affirmed.\u201d (People v. Arman (1989), 131 Ill. 2d 115, 124, 545 N.E.2d 658.) There is sufficient evidence to sustain the jury\u2019s verdict finding Nanez guilty beyond a reasonable doubt on a theory of accountability based upon his own statement.\nA person is legally accountable for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such person in the planning or commission of the crime. (Ill. Rev. Stat. 1989, ch. 38, par. 5 \u2014 2.) Evidence that the defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and supports a conviction for a crime committed by another. (People v. J.H. (1990), 136 Ill. 2d 1, 17, 554 N.E.2d 961.) The statement of Nanez standing alone meets the statutory definition. We note here the testimony of Detective Switski that when he took Nanez\u2019s oral statement, Nanez admitted he found the glass bottle to hold the gas and he assisted in pouring the gas from the milk container into the glass bottle.\nNanez\u2019s second argument is that he was denied a fair trial when the court allowed Jose Ramirez to testify that John Galvan was a member of a gang. He makes the same argument as Almendarez and also relies on Smith (141 Ill. 2d 40, 565 N.E.2d 900) for the rule that \"when the State undertakes to prove facts which the State asserts constitute a motive for the crime charged, it must be shown that the accused knew of those facts.\u201d Smith, 141 Ill. 2d at 56.\nSmith and the cases upon which it relies are distinguishable from the facts before us. In Smith, which was not an accountability case, the State introduced evidence of the victim\u2019s treatment of gang members in prison while he was a deputy warden to suggest that it may have been a motive for the defendant\u2019s murder of the victim. But the State failed to introduce evidence that the defendant knew of the victim\u2019s treatment of gang members in his role as warden. Lacking evidence that the defendant knew of the victim\u2019s behavior, the State\u2019s introduction of such motive evidence was speculative.\nNo such speculation was indulged in by the State in this case. The evidence showed that Galvan was a gang member, he had some kind of difficulty with the person whose house he burned, and Nanez, in his own statement, admitted Galvan told him he had difficulties with the person whose house they burned.\nEvidence of common design, which includes motive evidence unquestionably attributable to one defendant, is not speculative when introduced as evidence against a second defendant charged on an accountability theory. It was enough that Nanez knew Galvan had a motive to make that motive probative in the case against Nanez.\nNanez\u2019s third argument is that the court erred when it responded to a question from the jury. During deliberations the jurors sent the trial judge a note asking: \"Is the fact that F. Nanez is present with the knowledge of his friends\u2019 intentions, make him legally responsible for the conduct of another person?\u201d Over the defendant\u2019s objection, the court directed the jurors to continue their deliberations using the instructions they had been given.\nA trial court has wide discretion in deciding whether to respond to a jury question. (People v. Flynn (1988), 172 Ill. App. 3d 318, 323, 526 N.E.2d 579.) The court has a duty to avoid giving the jury its opinion on the evidence and should not answer a question that requires a conclusion on the issues at trial. (People v. Williams (1975), 60 Ill. 2d 1, 13, 322 N.E.2d 819.) Here the jurors were given the proper Illinois Pattern Jury Instruction on accountability, and the court did not abuse its discretion in referring them to the instructions.\nFourth, Nanez argues he was unfairly prejudiced by comments made by the prosecutor during closing argument. Nanez contends the prosecutor misstated the law of accountability by asserting that Nanez\u2019s presence alone rendered him guilty. We find that where defense counsel responded to this argument and the court properly instructed the jury on the law of accountability, any error was rendered harmless.\nNanez next challenges the prosecutor\u2019s use of the dictionary definition of the word \"convince\u201d during rebuttal, contending that the prosecutor improperly relied on facts not in evidence. Nanez admitted in his statement that Galvan and Almendarez \"convinced\u201d him to aid them in their plan to burn the victims\u2019 house. During defense closing argument counsel stated, \"Mr. Leighton never asks [Nanez] *** what he means by the word 'convince.\u2019 'Convince\u2019 can mean all kinds of things and you know that. You can be convinced to do things in many different ways.\u201d The prosecutor then responded in rebuttal, \"The dictionary says the word 'convince,\u2019 to bring by argument to belief, consent or cause a course of action. To persuade.\u201d Where the complained-of remarks are within the rebuttal argument, they will not be held improper if invited by the defense counsel\u2019s argument. (People v. McKinley (1992), 242 Ill. App. 3d 124, 609 N.E.2d 720.) We find that to be the case here.\nNanez also argues that the prosecutor improperly shifted the burden when he stated, \"At the gas station did Francisco Nanez tell his buddies, hey, I\u2019ve changed my mind, I want no part of this? *** There is no proof in this case *** that Francisco Nanez wanted to divorce himself.\u201d Defense counsel objected to these comments, and the court sustained the objections. We find that any error was cured when the court sustained the objections and instructed the jury to disregard remarks not based on the evidence. People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.\nNanez next complains of the prosecutor\u2019s references to gang evidence during closing argument. We also find that any error was cured when the court sustained defense counsel\u2019s objections and instructed the jury to disregard remarks not based on the evidence.\nFinally Almendarez and Nanez argue that the mandatory life imprisonment statute under which they were sentenced is unconstitutional. Section 5 \u2014 8\u20141(a)(1)(c) of the Uniform Code of Corrections mandates a sentence of life imprisonment without parole in cases of multiple murder convictions. (Ill. Rev. Stat. 1991, ch. 38, par. 1005\u2014 8 \u2014 1(a)(1)(c).) Almendarez and Nanez make the same arguments that the defendant made in People v. Galvan (244 Ill. App. 3d at 306). Nanez additionally argues that the statute violates the eighth amendment prohibition against cruel and unusual punishment.\nThe validity of section 5 \u2014 8\u20141(a)(1)(c) has been upheld by Illinois courts, and challenges similar to those raised by Almendarez and Nanez have been rejected. See People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059; People v. Glenn (1992), 233 Ill. App. 3d 666, 599 N.E.2d 1220; People v. Rodriguez (1985), 134 Ill. App. 3d 582, 480 N.E.2d 1147.\nAffirmed.\nJOHNSON and THEIS, JJ., concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "Rita A. Fry, Public Defender (Andrea Monsees, Assistant Public Defender, of counsel), and Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender\u2019s Office, both of Chicago, for appellants.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR ALMENDAREZ et al., Defendants-Appellants.\nFirst District (4th Division)\nNos. 1 \u2014 90\u20141863, 1\u201491\u20140171 cons.\nOpinion filed August 18, 1994.\nRehearing denied September 21, 1994.\nRita A. Fry, Public Defender (Andrea Monsees, Assistant Public Defender, of counsel), and Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender\u2019s Office, both of Chicago, for appellants.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0639-01", "first_page_order": 657, "last_page_order": 667 }