People v. Arroyo

1-99-4435
)
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v.
)
)
ULISES ARROYO, ) Honorable
) James M. Schreier,
Defendant-Appellant. ) Judge Presiding.
)
JUSTICE REID delivered the opinion of the court:
Following a bench trial, Ulises Arroyo was convicted of first degree
murder (720 ILCS 5/9-1)(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 NBA
championship. He was sentenced to 35 years. On appeal, the defendant
asserts that the trial court committed reversible error by not allowing the
inculpatory statement of a non-testifying third person into evidence.
Defendant also argues judicial error in denying his motion to suppress
statements, and in limiting testimony regarding incidents of past violent
acts committed by members of the street gang which had initially instigated
violence. Defendant further argues his guilt was not proved beyond a
reasonable doubt and his sentence was excessive. For the following
reasons, we affirm the conviction and sentence.
THE FACTS
Arroyo, a member of the Milwaukee Kings street gang, watched the
championship game on 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 Marmora in Chicago.
He had previously been told that, even though he was not an official member
of the Reese Park Imperial Kings, he would be working security at the Apple
Pantry in case anything happened. While this was transpiring, members of
the Pachucos street gang were throwing bricks and bottles at cars passing
through their territory. The Pachucos hit a car driven by Pedro
Villalobos, 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 had happened to him. Several
Imperial Gangsters and Reese Park Imperial Kings left the Apple Pantry,
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!" He claims he was told to shoot. Arroyo pulled his gun and shot
in a northerly direction, up and over the 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. When
the 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 Illinois Masonic Hospital.
While those events were transpiring, another group led by Oscar
Molina and Luis Villalobos drove in a van painted a dark color to Fullerton
and Long and opened fire on the Pachucos 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 the jurisdiction 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 the police and brought to Area 5. Arroyo made a statement to
the police in which he confessed to the crime orally and in a signed,
handwritten statement.
During pre-trial discovery, Arroyo filed a motion to suppress his
statement. Arroyo claimed that the police had violated his fifth amendment
rights because he was physically and psychologically coerced into
confessing. At the time of the interrogation, Arroyo had no attorney
present and no one from his family had been notified of his arrest. He was
not arrested pursuant to 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 informed him 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 began
slapping him. After a full day of interrogation which he claimed lasted 30
hours, Arroyo claims he succumbed to the pressure and signed the five-page
statement written by an Assistant State's Attorney. The claim that Arroyo
was interrogated for 30 hours is disputed by the State. The arrest report
shows that he was arrested June 15, 1997 at 8:30 p.m. The handwritten
statement states it was created June 16, 1997 at 12 p.m. Both of these
documents are contained in the common 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 head during the interrogation process.
He also accused the police of preventing him access to his attorney by
tearing up the attorney's card, which Arroyo carried. Arroyo's mother and
girlfriend testified they had been looking for him the entire time he was
being interrogated. The girlfriend testified that the police denied having
Arroyo in their custody, even though he had been there for quite some time.
The mother and girlfriend claimed they knew the police were lying because
they saw Arroyo's car in the parking lot.
The investigation was conducted by Detectives Engel and Sofrenovic.
At the motion to suppress, the State called Engel, who testified that he
conducted a brief interview shortly after Arroyo arrived at the Area 5
station wherein he did not ask Arroyo about Dellatorre's death and did not
mentally or physically coerce him in any way. He also denies that Arroyo
requested his attorney 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, Sofrenovic informed 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 and agreed 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 Arroyo that his
story did not wash because two witnesses placed defendant at the shooting
and that the police had recovered a gun.
Arroyo's statement was memorialized at approximately noon on the
second day. At that point, Assistant State's Attorney Gallagher again read
Arroyo his Miranda rights and took the statement. 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 were initialed. Arroyo, Gallagher and Sofrenovic signed the
statement once the corrections were made. 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 favor of the State.
Trial commenced on April 30, 1999. The State called Enereida
Zendejas, who testified how Rudy Dellatorre was struck by a bullet. She
testified that she observed a large group walking down Fullerton carrying
bats and bottles. Zendejas then saw a light-colored van and a dark-colored
car drive by the area. She testified she believed the shots came from one
of the cars, not the group on the street. She also testified that she saw
a Hispanic man come from the car who was approximately 6'1" tall, weighing
approximately 180-200 pounds.
The State also called Sergio Hernandez and Terrence Rizzo, members of
the Milwaukee Kings street gang. They testified that they were with Arroyo
on the night in question. The Pachucos threw bricks at Hernandez and the
group with him. Hernandez testified he saw Arroyo fire a single shot, then
run away. As Arroyo was running, Hernandez testified he heard three or
four other shots from what sounded to him like a larger gun. Hernandez
also testified that he did not see the bullet fired by Arroyo actually hit
anyone. Rizzo also saw Arroyo shoot but did not see the bullet strike
anybody. Rizzo testified to hearing a second volley of shots but that the
shots did not come from Arroyo's gun. After the incident, Rizzo met up
with Arroyo. According to Rizzo, Arroyo did not mention thinking he hit
someone when he fired the gun. Arroyo then asked another gang member to
put the gun in the gang's stash. Hernandez subsequently took the police to
the stash where they recovered the .25 caliber handgun.
The State then called Sofrenovic, who testified consistently with his
testimony at the motion to suppress. He testified that he spoke with
Arroyo, Hernandez and Rizzo. Sofrenovic witnessed the writing of the
handwritten statement. He also saw Arroyo sign the statement. On cross-
examination, Sofrenovic admitted there was no lawyer present for any of the
interrogation and that certain details were missing from the statement.
Sofrenovic, through testimony published the statement to the trial court.
The statement indicated that Arroyo got the gun from a gang 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 did not have guns. The statement also states that defendant
fired 4 shots into the crowd. Arroyo thought he might have hit someone but
was uncertain.
On cross-examination, Sofrenovic testified about the oral statement
Arroyo gave before the handwritten statement. In the oral statement,
Arroyo allegedly told the police that he did not know if the Imperial
Gangsters or Maniac Latin Disciples carried firearms when they left to go
to the scene of the shooting. However, Arroyo later contradicted himself
by stating that he knew someone had a .9mm gun. Arroyo told Sofrenovic
that he knew the person with the gun would be 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 the police recovered a .9mm gun from Molina that same day.
Prior to resting its case-in-chief, the State introduced two
stipulations into evidence. The first contained stipulated testimony of
the medical examiner that the victim died from a gunshot to the right side
of the head. The medical examiner would have testified that the bullet was
a small caliber, copper-jacketed bullet. The second stipulation was of a
firearms expert named Sanchez. Sanchez would have testified that the
bullet recovered from Dellatorre's head had been fired from the .25 caliber
handgun recovered from the Milwaukee Kings' stash. This concluded the
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 and some others met members of the Imperial Gangsters and
Maniac Latin Disciples around Fullerton and McVicker. Arroyo said he
agreed to go along and help the other gangs fight the Pachucos. He
admitted he was carrying a gun, "in case anything goes down, anybody ends
up shooting or pulls a gun or anything like that." When they arrived on
the scene, both sides began throwing things at each other.
Arroyo testified he stood by himself on the southwest corner of
Fullerton and Long where he heard shots fired. He testified he did not
know from where the shots had come. In response to 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, Arroyo headed westbound away from the scene. He gave the gun to
Jowers and did not learn anyone had been shot until he was arrested and
taken to Area 5. Arroyo testified that he spent 30 hours at Area 5 before
giving his statement. Arroyo claimed he did not read the statement or have
it read to him by the police before he signed it. Arroyo also testified
about other incidents with the Pachucos. This included an auto collision,
an incident when a Pachucos member allegedly pointed a gun at Arroyo, and a
third incident where Arroyo allegedly heard that the Pachucos shot at other
gang members.
Fernando Perez testified on Arroyo's behalf. He was a co-defendant
until he pled guilty and was sentenced to 4 years. Luis Villalobos also
testified on Arroyo's behalf. He had been charged 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.
Perez testified that he learned that Molina's gun was a .9mm. Though he
heard 2 groups of gunshots that 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's Attorney admitted into evidence. The trial court
took notice that Molina was out of the jurisdiction, possibly out of the
country, and refused to admit the statement into evidence. The trial court
ruled that the statement lacked sufficient indicia of reliability to
justify its admission into evidence. Arroyo was found guilty of first-
degree murder. He was sentenced to 35 years.
ANALYSIS
I
Arroyo argues on appeal that the trial court's refusal to admit the
Molina statement because it purportedly lacked an indicia of reliability
was error which he claims resulted in prejudice to him. He argues that the
indicia of reliability overwhelmingly favored admission of the confession
because it was made when Molina was in custody, during an interrogation
when Molina was anything but safe from prosecution. Arroyo also argues
that, since the confession was made while Molina was in police custody, it
is far more reliable than had it been made outside of police custody.
The State responds that the confession lacked sufficient indicia of
reliability and therefore the trial court was correct in barring its
admission. The State argues that, since Arroyo failed to make the Molina
statement part of the record on appeal, it is unclear what the confession
actually said. Since it was not included in the record, the State argues
that Arroyo cannot actually show how the trial court allegedly abused its
discretion.
In determining whether or not to allow the admission of an
incriminating statement by a third-party, courts follow the guidelines
articulated in Chambers v. Mississippi, 410 U.S. 284, 35 L. 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 is inadmissible hearsay, even though the statement is against the
declarant's penal interest. People v. 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
exception to the hearsay rule if the statement contains sufficient indicia
of reliability and if justice so requires. McAllister, 193 Ill. 2d at 100,
citing People v. Bowel, 111 Ill.2d 58, 66 (1986), citing Chambers 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 look foremost 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
look to whether the statement was made spontaneously to a close
acquaintance shortly after the crime occurred; whether the statement was
corroborated by other evidence; and whether there was adequate opportunity
for cross-examination of the declarant. These latter factors are not "hard
and 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 the
admissibility of the hearsay declaration is whether it was "made under
circumstances which provide '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. at 300-01, 35 L.
Ed. 2d at 311-12, 93 S. Ct. at 1048-49. Whether a statement is admissible
under the statement-against-penal-interest exception to the hearsay rule
rests within the sound discretion 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 inadmissible because 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. 2d at
100. Molina's statement that he fired a .9mm handgun in the vicinity where
the victim was shot 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-court statement did not
comprise an admission that he committed the murder at issue, it could not
have been admitted under the Chambers exception. For the same reason,
Molina's statement also did not contain sufficient indicia of reliability
and, most importantly, justice did not require its admittance. In both the
trial court and on appeal, defendant has completely failed to present any
plausible basis to find that the interests of justice would be served by
admitting Molina's statement. Indeed, a strong argument could be made that
defendant's failure to make Molina's entire statement part of the record
was a purposeful effort to obfuscate this issue. The trial court's ruling
that Molina's statement was inadmissible hearsay was correct.
II
Arroyo next argues that the trial court improperly denied his motion
to suppress his confession. He claims the confession was improperly
obtained after 30 hours of interrogation in police custody without benefit
of counsel. Arroyo claims that the trial court failed to give sufficient
weight to the effects of his prolonged isolation. In this way, Arroyo
argues he was effectively denied his constitutional right to counsel. The
State responds that the confession was voluntary and that Arroyo was
repeatedly informed of his Miranda rights. The State argues it established
by a preponderance of the evidence that the confession was voluntarily
given and that Arroyo 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 determining whether a confession was
voluntary, we must consider the totality of the circumstances. In Re G.O.,
191 Ill. 2d 37, 54 (2000); citing Gilliam, 172 Ill. 2d at 500. Factors to
consider include the respondent's age, intelligence, background,
experience, mental capacity, education, and physical condition at the time
of questioning; the legality and duration of the detention; the duration
of the questioning; and any physical or mental abuse by police, including
the existence of threats or promises. G.O., 191 Ill. 2d 37, 54; citing
Gilliam, 172 Ill.2d at 500-01. Significantly, no single factor is
dispositive. G.O., 191 Ill. 2d 37, 54; citing Gilliam, 172 Ill.2d at 500.
The test of voluntariness is whether the respondent "made the statement
freely, voluntarily, and without compulsion or inducement of any sort, or
whether the [respondent's] will was overcome at the time he or she
confessed." G.O., 191 Ill. 2d 37, 54; quoting Gilliam, 172 Ill.2d at 500.
"The benchmark for voluntariness is not whether the defendant would have
confessed in the absence of interrogation but, rather, whether the
defendant's will was overborne at the time of the confession." People v.
Brown, 169 Ill. 2d 132, 144 (1996); citing People v. House, 141 Ill. 2d
323, 376 (1990); People v. Terrell, 132 Ill. 2d 178, 198 (1990).
"Consequently, in reviewing whether respondent's confession was voluntary,
we will accord great deference to the trial court's factual findings, and
we will reverse those findings only if they are against the manifest weight
of the evidence. However, we will review de novo the ultimate question of
whether the confession was voluntary. We caution that, for this standard
of review to function as it is intended, trial courts must exercise their
responsibility to make factual findings when ruling on motions to suppress.
Reviewing courts should not be required to surmise what factual findings
that the trial court made. Instead, the trial court should make clear any
factual findings upon which it is relying. It is only through this synergy
between the trial and reviewing courts that appellate courts can develop a
uniform body of precedent to guide law enforcement officers in their
determination 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 and tear it up in his face.
This alone would be sufficient to invalidate the confession and exclude it
from 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
this claim by the State to be more credible. On this record, we cannot
hold that the trial court's ruling is 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 of time. Arroyo was repeatedly read his rights. He was
provided with food and drink. He admitted he was well-treated during his
interrogation and was not subjected to punishment. Though Arroyo 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 breaks between 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 an unlawful detention. Though Hardway might
superficially seem similar to the case at bar, it is readily
distinguishable. Hardway turned on whether that detention resembled a
traditional arrest or 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 told whether or not
he was under arrest. He was also not told that he need not accompany the
police officers to the station. This is factually specific and quite
unlike Arroyo's situation. Arroyo had no doubt he was under arrest. He
does not dispute that he was detained, merely that, in his opinion, the
detention was too long. Arroyo would have this court consider the length
of time of the detention as though that were the only fact to be
considered. This we cannot do because such an approach would be too rigid
and would fail to take into account the totality of the circumstances. The
evidence presented at the motion to suppress is directly in conflict. If
the defendant's witnesses are to be believed, the statement should be
suppressed. If the State's witnesses are to be believed, the motion to
suppress was properly denied. These evidentiary conflicts were resolved by
the trial court in favor of the State's witnesses. Given the great
deference we must give to such findings, we cannot say that the trial court
abused its discretion in denying defendant's motion to suppress. G.O., 191
Ill. 2d at 50.
III
Arroyo next claims the trial court denied him his right to confront
certain witnesses when it restricted testimony concerning prior acts of
violence by the Pachucos against Arroyo personally and their previous
history of violence in general. In his testimony, Arroyo was allowed to
make some mention of the Pachucos' prior acts but was limited in other
respects. He argues that any actions by the trial court to limit or
foreclose such testimony was error. The State responds that, since the
trial court allowed Arroyo to elicit testimony from several witnesses about
the Pachucos' reputation for violence, the rulings did not deny Arroyo his
right of confrontation. The State points out that, since Arroyo did not
include this issue in a post-trial motion and did not object to the trial
court's handling of the issue, it should be treated as having been waived.
The State points out that, in the post-trial motion, Arroyo only argued
that the trial court violated his right to impeach the witness, not the
right of confrontation. Next, the State argues that Arroyo failed to
explain exactly how the alleged error actually deprived him of his right 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' testimony to prior acts of violence by
the Pachucos, it was raised in context of a self-defense claim. No mention
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 by this 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 and vague 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
a new trial, if warranted. This casts a needless burden of preparing and
processing appeals upon appellate 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 appeal whether 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 first allow sufficient cross-examination to satisfy
the confrontation required under the Sixth Amendment as a matter of right.
People v. Brown, 243 Ill. App. 3d 1057, 1063 (1993). "To determine 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 been allowed to do.'" Brown, 243 Ill. App. 3d at 1063; quoting
People v. Edwards, 218 Ill. App. 3d 184 (1991). A reviewing court should
interfere with the trial court's decision involving the latitude of cross-
examination only when the trial court clearly abused its discretion and
manifest prejudice 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 counsel latitude to question the
witnesses about the Pachucos. The trial court limited questions in scope
but 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 of discretion, this court cannot
find error on the part of the trial court.
IV
Arroyo next argues that the case against him was insufficient to
convict him beyond a reasonable doubt. "The State carries the burden of
proving beyond a reasonable doubt each element 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 a criminal conviction on grounds of insufficient evidence
unless the proof is so improbable or unsatisfactory that there exists a
reasonable doubt of the defendant's guilt. When considering the
sufficiency 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 most favorable to the
prosecution, any rational fact finder could have found beyond a reasonable
doubt the essential elements of the crime. Maggette, 195 Ill. 2d at 353;
citing People v. Tye, 141 Ill.2d 1, 13-14 (1990); People v. Phillips, 127
Ill.2d 499, 509-10 (1989). We note that this standard of review 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, 146 Ill.2d 363, 374-75 (1992). It is well-
settled that when a case is tried without a jury, it is the responsibility
of the trial judge to determine the credibility of the witnesses and weight
to be given their testimony and where the evidence is merely conflicting ,
a reviewing court will not substitute 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, two
credible eyewitnesses watched Arroyo shoot a .25-caliber gun in the
direction of the Pachucos on the night of the incident. Sometime after the
shooting, one of the eyewitnesses watched Arroyo turn a .25-caliber gun
over to a fellow gang member and ask him to put it in the stash. All of
the eyewitness testimony exists in conjunction with Arroyo's own
confession, in which he indicated that he shot his .25-caliber weapon which
might have hit someone. Additionally, all of this testimonial evidence is
corroborated by the forensic evidence in this matter. The medical examiner
removed a .25-caliber bullet from the deceased's head. This bullet was
scientifically confirmed to have been fired from the same gun Arroyo fired.
The State argues that this evidence is overwhelming in its support for
Arroyo's conviction. We agree.
V
Finally, Arroyo argues that the sentence imposed was disproportionate
to the crime for which he was charged. The State responds that a 35 year
prison term for murder is within the statutory guidelines and is reasonable
under the circumstances. We agree. It is well settled that the 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 sentencing decision 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 is generally in a better position than the reviewing court
to determine the appropriate sentence. The trial 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 it would
have weighed these factors differently. Stacey, 193 Ill. 2d 203, 209;
citing Streit, 142 Ill.2d at 19. Arroyo's sentence is within the statutory
guidelines for a crime of this nature. "A sentence within statutory limits
will not be deemed excessive unless it is greatly at variance with the
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 does not support Arroyo's claim
that the sentence was disproportionate.
CONCLUSION
In light of the foregoing, the judgment of the trial court is
affirmed.
Affirmed.