FIFTH DIVISION June 17, 2022

Nos. 1-21-0029 & 1-21-0030 (Cons.)

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of Cook County. ) v. ) 87 CR 8638 (03) (01) ) ARTHUR ALMENDAREZ & ) Honorable Timothy Joyce, JOHN GALVAN, ) Judge Presiding. ) Defendants-Appellants. )

JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

Held: Appeal dismissed for lack jurisdiction because the circuit court’s order taking the case “off call” was not a final and appealable order.

¶1 Defendants, Arthur Almendarez and John Galvan, appeal from the circuit court’s order

denying their motions to suppress evidence. The procedural history of this case is complex and

has been discussed at length in past orders of this court. See People v. Almendarez,

; People v. Galvan,

; People v. Almendarez,

; People v. Galvan,

; People v. Almendarez, 266 Ill. Nos. 1-21-0029 & 1-21-0030 (cons.)

App. 3d 369 (1994); People v. Galvan,

(1993). Accordingly, we will only

briefly address the background of this case and limit our discussion largely to those events that

have transpired since our latest decisions in Galvan,

, and Almendarez,

. For the following reasons, we dismiss this appeal for lack of

jurisdiction.

¶2 I. BACKGROUND

¶3 On September 21, 1986, at approximately 4 a.m., there was a fire at 2603 West 24th

Place in Chicago that killed two young men, Guadalupe and Julio Martinez, both of whom

resided with their family in the upstairs apartment of the building. Their siblings, Blanca and

Jorge Martinez, escaped. Investigators suspected arson. Galvan, Almendarez, and Francisco

Nanez were arrested nine months after the fire. They were charged with aggravated arson and

first degree murder

¶4 Prior to trial, defense counsel for both Galvan and Almendarez filed motions to quash

arrest and suppress their confessions. In the motions, they argued that they were abused by two

detectives: Victor Switski and James Hanrahan. They contended that they were told they could

go home if they signed statements.

¶5 At the hearing on the motions, Detectives Switski and Hanrahan denied that any physical

abuse occurred and denied that they told the suspects that they could go home if they signed a

statement. The circuit court denied the motions.

¶6 Following separate jury trials, Galvan and Almendarez were each convicted of

aggravated arson and first degree murder. They were each sentenced to natural life in prison

without parole.

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¶7 Almendarez and Galvan both filed postconviction petitions alleging actual innocence and

newly discovered evidence of police coercion. The circuit court denied these claims, but we

reversed for a third-stage evidentiary hearing.

¶8 A joint evidentiary hearing was held over the course of 14 days, where 23 witnesses were

presented. The details of that hearing are discussed at length in Galvan,

, ¶¶ 19-55, and Almendarez,

, ¶¶ 12-57. At the close of

evidence, the circuit court found that Galvan and Almendarez did not meet the necessary burden

of proof to entitle them to postconviction relief. The court found that the witnesses were not

credible and that their testimony did not lead to any conclusion that had the pattern of police

misconduct testimony been presented at their pretrial hearings on their motions to suppress their

confessions, such motions would have been granted.

¶9 On appeal, we found that the circuit court’s conclusion was manifestly erroneous.

Galvan,

, ¶ 74, and Almendarez,

, ¶ 76. We

stated that the new evidence presented, when weighed against the State’s original evidence, was

conclusive enough that the outcome of the suppression hearing likely would have been different

if the detectives had been subject to impeachment based on the pattern of abusive tactics the

witnesses testified about.

We reversed and remanded with directions that Galvan and

Almendarez receive a new suppression hearing and, if necessary, a new trial.

¶ 10 On remand, the circuit court stated that it would consider all witness testimony that it

heard during the third-stage post-conviction evidentiary hearing, but not the transcripts from the

original pretrial hearing on the motions to suppress.

¶ 11 At the new suppression hearing, Annette Faklis Moriarty testified that she was working

as a court reporter for the Cook County State’s Attorney’s Office on June 8, 1987. She did not

3 Nos. 1-21-0029 & 1-21-0030 (cons.)

have an independent recollection of the events on that date, but recognized the court-reported

statement that she took on that date. She also recognized the picture of Galvan that she took at

Area 4 Violent Crimes at approximately 12:10 a.m. In the 30 years she was employed with the

Cook County State’s Attorney’s Office, she was never alone in a room with a defendant. If she

saw signs of abuse on somebody, she would have complained to her supervisor. She testified that

she did not see signs of abuse in Galvan’s photograph.

¶ 12 On cross-examination, Moriarty testified that her standard procedure was to take a

statement, then give it to the State’s Attorney, and then take a picture. Everyone who was in the

room signed the picture. Moriarty testified that it appeared that ASA Joel Leighton and Detective

Switski signed Galvan’s picture as well. Moriarty stated that other than recognizing her

handwriting and her initials, she did not have any independent memory of being at Area 4

Violent Crimes on June 8, 1987.

¶ 13 Almendarez testified that Moriarty was not the court reporter that was present when he

gave his statement on June 8, 1987.

¶ 14 In closing argument, the State asked that the circuit court deny the motion to suppress

both statements. It noted that nothing is “amiss” about the statement or photograph of Galvan,

and that the pictures do not demonstrate “any kind of abuse or torture because it is a pure fiction

that has been growing for 35 years.” The State argued that in the photographs, the defendants are

smiling, which shows they were not abused.

¶ 15 Defense counsel argued that the defendants were smiling in the photographs because they

were relieved. They had been told they were going home if they gave a statement. Defense

counsel noted that at a suppression hearing, the State’s burden is to prove by a preponderance of

the evidence that the statement is voluntary, and the State did not meet that burden here.

4 Nos. 1-21-0029 & 1-21-0030 (cons.)

¶ 16 On December 17, 2020, the trial denied Galvan and Almendarez’s motion to suppress

statements. The court noted that at the third-stage evidentiary hearing under the Act, Galvan and

Almendarez had the burden to prove by a preponderance of the evidence that they were entitled

to constitutional relief, and that at a suppression hearing, it was the State’s burden to prove by a

preponderance of the evidence that the statements made by Galvan and Almendarez were

voluntary. The circuit court then found that the “State has done so. The motions will be

respectfully denied.” The circuit court then stated that the convictions and sentences would

remain, and that “the matters can go off call.” Galvan and Almendarez now appeal.

¶ 17 II. ANALYSIS

¶ 18 On appeal, Galvan and Almendarez argue that the circuit court erred in closing the case

after denying their motion to suppress, and therefore denying them new trials.

¶ 19 First, we must consider whether we have jurisdiction. A reviewing court has an

independent duty to consider its own jurisdiction. People v. Smith,

(2008).

Galvan and Almendarez suggest we have jurisdiction because they are appealing from a

judgment denying their motions to suppress. They do not cite any Supreme Court Rule that

arguably makes the circuit court’s order appealable, but rather cite to case law dealing with

situations where a reviewing court reserves its own jurisdiction. We find this case law to be

inapposite to the situation presented here.

¶ 20 In our most recent decisions, we reversed the circuit court’s orders denying Galvan’s and

Almendarez’s third-stage postconviction petitions and remanded for a new suppression hearing.

Galvan,

, ¶ 79; Almendarez,

, ¶ 78. Upon

receipt of our mandate, the circuit court held a new suppression hearing and denied Galvan and

Almendarez any relief. After doing so, the circuit court stated that the cases would be “off call,”

5 Nos. 1-21-0029 & 1-21-0030 (cons.)

and that “one of two things could happen.” The court indicated that Galvan and Almendarez

could file a notice of appeal “or somehow get the matter back to the Appellate Court,” or that

they could “put it back on the call if there is something else I ought to reconsider or do

differently.” The court continued, “But, for the moment, I will consider that the matter is

concluded, off call, and I will wait for you to tell me how you wish to proceed, however you

wish to proceed, or not tell me and just file a notice of appeal without bringing it to my

attention.”

¶ 21 When this court reversed the circuit court’s orders denying Galvan’s and Almendarez’s

third-stage postconviction petitions, it logically followed that this court was vacating their

convictions, as well as remanding for a new suppression hearing and trial, event though that

relief was not explicitly stated. This court’s stating that the matter was remanded for a new trial

“if necessary,” was intended to reflect that if the circuit court granted the motions to suppress,

the State might abandon the prosecution for lack of admissible evidence. This court did not

intend that if the circuit court denied the motions to suppress, that no new trial should take place.

Accordingly, the circuit court’s taking the matter “off call” left the need for a new trial

unresolved and thus was not a final and appealable order.

¶ 22 While the parties have briefed the issue of whether the court properly denied the motion

to suppress, we cannot comment on the outcome of the new suppression hearing at this time, as

Illinois Supreme Court Rule 604(a)(1) (eff. Jul 1, 2017) does not permit a defendant to appeal

from an order of a trial court denying a motion to suppress evidence until after conviction. See

People v. Johnson,

(2003); People v. Kepi,

(1978).

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¶ 23 Therefore, with the clarification that Galvan’s and Almendarez’s convictions were

vacated in Galvan,

and Almendarez,

,

necessitating a new trial, we dismiss this appeal for lack of jurisdiction.

¶ 24 III. CONCLUSION

¶ 25 For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.

¶ 26 Appeal dismissed.

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