People v. Slywka ( 2006 )

SECOND DIVISION
MARCH 31, 2006
No. 1-03-1410
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 00 CR 28960
)
) The Honorable
WALTER B. SLYWKA, ) Colleen McSweeney-
) Moore,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
On December 8, 2000, the defendant, Walter B. Slwyka, was
indicted for first degree murder (720 ILCS 5/9-1 (West 2000)).
Specifically, that on March 28, 1992, the defendant (1)
"intentionally or knowingly shot and killed Jose Roman with a
firearm" (See 720 ILCS 5/9-1(a)(1) (West 2000)) (count I), and
(2) shot and killed Roman with a firearm "knowing that such
shooting with a firearm created a strong probability of death or
great bodily harm" (see 720 ILCS 5/9-1(a)(2) (West 2000)) (count
II). On March 20, 2003, a jury returned a general verdict
finding the defendant guilty of first degree murder. On April
22, 2003, the defendant was sentenced to 25 years in the Illinois
Department of Corrections (DOC), on the offense of murder with
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the intent to kill or injure (720 ILCS 5/9-1(a)(1) (West 2000)).
The defendant appeals, arguing: (1) he was improperly
convicted of first degree murder where one of the two counts
alleged intentional murder, because he had been acquitted of
attempt murder, based on the same shooting, in an earlier
proceeding; (2) his fifth amendment privilege against self-
incrimination was violated by the improper admission of
statements he had made to a juvenile probation officer (U.S.
Const., amend. V); and (3) he was denied his right to a fair
trial due to prosecutorial misconduct.
BACKGROUND
I. Prior Juvenile Proceedings
On April 23, 1992, a petition for adjudication of wardship
was entered against the defendant, and the defendant was charged
in a juvenile petition with, inter alia, attempt murder (Ill.
Rev. Stat. 1991, ch. 38, par. 8-4), armed violence (Ill. Rev.
Stat. 1991, ch. 38, par. 33A-2), aggravated discharge of a
firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2(a)), and two
counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, pars.
12-4(a), (b)(1)). 12-4(a), (b)(1).
The juvenile charges stemmed from the shooting of Jose Roman
in Chicago, Illinois, on March 28, 1992. Specifically, the
attempt murder charge alleged that the defendant "took a
substantial step towards the commission of the crime of murder by
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attempting to kill (Jose A. Roman) by shooting [him] in the head
with a sawed off shot gun causing serious injury." The counts of
armed violence and aggravated discharge of a firearm were also
based on the shooting of Roman. One aggravated battery count
alleged that the defendant "knowingly, without legal
justification caused great bodily harm to [Roman] by shooting
[him] in the head with a sawed off shotgun causing great bodily
injury." The other aggravated battery count alleged that the
defendant "knowingly, without legal justification caused bodily
harm to [Roman] by shooting [him] in the head causing serious
injury while using a deadly weapon."
In April 1993, the defendant was adjudicated delinquent by
the juvenile court of armed violence and aggravated battery.
However, the defendant was acquitted of attempt murder. In May
1993, the defendant was committed to the juvenile department of
corrections, and he was paroled in December 1994.
II. Instant Criminal Proceedings
Jose Roman languished in extremis for eight years, until he
died on October 24, 2000. On December 8, 2000, the State charged
the defendant, and codefendant Samuel Rios, with two counts of
first degree murder based on the 1992 shooting of Roman.
Prior to trial, defense counsel filed a motion to dismiss
the criminal indictment based on collateral estoppel. Defense
counsel argued that the defendant's earlier acquittal of attempt
murder barred a subsequent prosecution for murder based on the
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same facts. The trial court rejected the argument and denied the
defendant's motion to dismiss.
At trial, the following facts were adduced. On March 28,
1992, at approximately 5 p.m., the defendant, who was 15 years
old, and his friend, Samuel Rios, were driving around the area of
Cicero and Parker, in Chicago, Illinois, in a stolen gold, four-
door Oldsmobile Cutlass Supreme (Oldsmobile). The defendant and
Rios were part of a street gang called the Spanish Cobras, and
they were looking for a member of the Latin Kings street gang in
order to retaliate for a shooting that had targeted the Spanish
Cobras a few days earlier. Initially, the defendant was driving
the Oldsmobile and Rios was in the front-passenger seat; however,
at some point the two switched places. A shotgun was under the
front seat. The defendant and Rios saw the victim, Roman, and
believed he was a Latin King. The defendant flashed Roman a
Latin King's hand signal, and Roman flashed a signal back.
Believing that Roman returned the hand signal because he was a
member of the Latin Kings, the defendant grabbed the shotgun and
fired one shot at Roman's head.
Rick Hernandez, a car salesman working at a car lot on the
west side of Cicero and Parker, testified that at around 5 p.m.
on March 28, 1992, he heard what he believed to be a car
backfire. Hernandez looked across the street and saw a man,
Roman, fall to the ground. Hernandez also saw a gold Oldsmobile
with two males wearing black hoodies speed away from the scene.
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Hernandez described the driver as a "darker-skinned Hispanic
guy," and the passenger as a "little bit lighter Hispanic."
Although Hernandez did not get the Oldsmobile's license plate, he
noted that the car had unusual rally wheels.
One of Hernandez's employees called the police, and
Hernandez ran across the street to the victim. Chicago police
detective Mark Flynn and Chicago police officer Leon Putyrski
were patrolling in the area and were the first to arrive at the
scene. Detective Flynn saw Roman lying on the sidewalk and noted
a gunshot wound to the back of Roman's head. Detective Flynn
contacted Chicago firefighters Robert Cordt and Rich Vale, who
arrived at approximately 5:10 p.m. Firefighter Cordt found that
Roman had suffered a gunshot wound to the back of the head, was
unresponsive, without a pulse, and was not breathing. Roman was
stabilized and transported to Advocate Illinois Masonic Medical
Center where he remained for four months before being transferred
to a long-term care facility.
Chicago police lieutenant Anthony Riccio was assigned to
conduct the investigation. On March 30, 1992, Lieutenant Riccio
reviewed the police reports and began searching for the
Oldsmobile that had been seen fleeing the scene. Later that same
day, Lieutenant Riccio located the Oldsmobile and discovered that
it had been reported stolen 7 to 10 days earlier. Lieutenant
Riccio contacted Hernandez, who positively identified the
Oldsmobile as the car involved in the shooting.
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Lieutenant Riccio also had the names of two possible
suspects, the defendant and Rios. On April 22, 1992, Lieutenant
Riccio went to the home of the defendant and the home of Rios and
transported both of them to the Area 5 police station. At
approximately 2 p.m., after the defendant had been read his
rights, Lieutenant Riccio had a conversation with him in the
presence of Youth Officer Joanne Hammermeister. The defendant
incriminated himself and admitted to shooting Roman in the back
of the head.
At approximately 6 p.m., Assistant State's Attorney (ASA)
Thomas Torcasso advised the defendant of his rights. The
defendant indicated he wanted to make a statement. ASA Torcasso
took the defendant's statement in the presence of Youth Officer
Hammermeister. In the statement, the defendant again admitted to
shooting Roman in retaliation for an earlier gang shooting. ASA
Torcasso allowed the defendant to review and correct the
statement. ASA Torcasso, Youth Officer Hammermeister, Lieutenant
Riccio, and the defendant each signed every page of the
statement.
The defendant's statement, which was published to the jury,
begins with his acknowledgment that he understood that he had the
right to talk to a lawyer and have an attorney present during
questioning. The defendant also acknowledged that he understood
that if he could not afford a lawyer, one would be appointed by
the trial court. The defendant then reaffirmed that he wished to
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give a statement. The defendant's statement contained the
following information. On March 28, 1992, he was a member of the
Spanish Cobra street gang, and at around 2:30 p.m. on that day,
he met Rios and others to discuss shooting a Latin King or Latin
Brother in retaliation for a shooting in which the Spanish Cobras
were targeted. Rios was going to do the shooting and the
defendant was going to drive; Rios had a sawed-off shotgun which
he placed in a book bag. Rios led the defendant to a brown four-
door Cutlass Oldsmobile. The defendant began driving, with Rios
in the passenger seat and the gun on the floor. A short time
later, the defendant and Rios switched places because Rios did
not think he could handle the kick from the gun. After driving
around for a while, the defendant and Rios drove up to the
intersection of Parker and Cicero, where a man had just stepped
off the sidewalk to cross the street in front of their car. The
defendant flashed the Latin King sign to see if the man would
return the gesture; when he did, the defendant raised the shotgun
and fired one shot. The defendant aimed for the man's back, but
did not know where he shot the man. The defendant and Rios then
sped away from the scene.
The State also called juvenile probation officer Mary
Patoff. Officer Patoff had conducted an interview in 1993 with
the defendant for a court-ordered presentence social
investigation report to be used in the defendant's dispositional
hearing. Officer Patoff testified that she questioned the
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defendant alone in order to get his version of events. Officer
Patoff testified that she was also receptive to hearing anything
else the defendant might want to tell her. Officer Patoff
testified that the defendant told her he was "in full agreement"
with the "findings from Juvenile Court," or the "findings and
charges that were brought into Juvenile Court." Officer Patoff
also recounted what the defendant told her regarding the day of
Roman's shooting. On cross-examination, Officer Patoff testified
that the defendant told her that he regretted what he had done;
Officer Patoff also testified that the defendant said he was
sorry and showed remorse. Officer Patoff testified that the
defendant knew Roman was in a nursing home, and, he told Officer
Patoff that he wanted to apologize to the victim and the victim's
family, as the defendant realized that his actions had ruined
both their lives. Officer Patoff also testified:
"He stated that he wished he could change the
situation, that it was very difficult for him
to face. He also felt that he ruined his
life, he told [me] that he realized he would
be held accountable for his actions."
Rios testified and substantially corroborated the statements
attributed to the defendant. Rios testified that his testimony
was not part of any agreement or deal. On cross-examination,
Rios testified that he and the defendant had been to juvenile
court and were convicted; however, the State objected to the jury
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learning that the defendant had been acquitted of attempt murder
in the juvenile proceeding.
Cathy Roman, the victim's sister, testified that she saw her
brother on the morning of the shooting and did not see him again
until he was in the hospital's intensive-care unit. Cathy Roman
also told jurors that her brother never regained consciousness
after the shooting and was housed in a nursing home for 8 2
years until his death.
Dr. Michael Grendon, the victim's treating physician from
August 10, 1992, until his death, testified that Roman was in a
chronic vegetative state from the time he was admitted to the
nursing home until his death. Dr. Grendon also described Roman
on good and bad days.
At the close of evidence and arguments, the jury was given
instructions corresponding to the two counts of the indictment
(Illinois Pattern Jury Instructions, Criminal, Nos. 7.01, 7.02
th
(4 . ed. 2000)), and returned a general verdict finding the
defendant guilty of first degree murder. On April 21, 2003, the
trial court sentenced the defendant to 25 years in DOC, with
credit for time served as a juvenile. The trial court's
sentencing order reflects that the sentence was entered on the
intentional murder count of the indictment. This appeal
followed.
ANALYSIS
I. Collateral Estoppel
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The first issue we must consider on appeal is whether the
State was collaterally estopped from charging the defendant with
two counts of first degree murder: intentional murder (720 ILCS
5/9-1(a)(1) (West 2000)), and strong probability murder (720 ILCS
5/9-1(a)(2) (West 2000)).
A. Standard of Review
The parties disagree as to the correct standard of review.
The defendant asserts that the issue before us is one of law and
should be reviewed de novo. Conversely, the State urges that the
defendant "challenges his conviction based upon the sufficiency
of the evidence" and the relevant standard is "whether, after
viewing 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."
Contrary to the State's assertion, the defendant is not
challenging his conviction based on the sufficiency of the
evidence. Instead, the defendant asserts that the State was
foreclosed from charging him with first degree murder as he was
previously acquitted of attempt murder in the juvenile
proceedings. As this presents a question of law, our review is
de novo. People v. Mitchell, 353 Ill. App. 3d 838, 844, 819
N.E.2d 1252 (2004) (the appellate court reviews pure questions of
law under a de novo standard of review).
B. Motion to Dismiss
Collateral estoppel is a component of double jeopardy.
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People v. Carrillo, 164 Ill. 2d 144, 151, 646 N.E.2d 582 (1995).
The doctrine of collateral estoppel provides that when a valid,
final judgment determines an issue of ultimate fact, the same
parties cannot litigate the issue in any future lawsuit. People
v. Jones, 301 Ill. App. 3d 608, 609-10, 703 N.E.2d 994 (1998).
Collateral estoppel applies when (1) the issue decided in the
prior adjudication is identical to the one presented in the
instant suit, (2) there was a judgment on the merits in the prior
adjudication, and (3) the party against whom estoppel is asserted
was a party, or in privity with a party, to the prior
adjudication. People v. Krstic, 292 Ill. App. 3d 720, 723, 686
N.E.2d 692 (1997), citing Talarico v. Dunlap, 177 Ill. 2d 185,
191, 685 N.E.2d 325 (1997).
Sections 9-1(a)(1) and (a)(2) present multiple theories that
constitute the single offense of murder, and each of these
theories has its own mental state. People v. Stalions, 139 Ill.
App. 3d 1033, 1036, 488 N.E.2d 297 (1986). In this case,
following the death of Roman, the State charged the defendant
with two counts of murder. Count I alleged murder as defined in
section 9-1(a)(1), specifically that on March 28, 1992, the
defendant "intentionally or knowingly shot and killed Jose Roman
with a firearm." See 720 ILCS 5/9-1(a)(1) (West 2000). Section
9-1(a)(1) is known as "intentional murder." See People v. Davis,
213 Ill. 2d 459, 471, 821 N.E.2d 1154 (2004). Count II of the
indictment alleged murder based on section 9-1(a)(2),
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specifically that the defendant shot and killed Roman with a
firearm, "knowing that such shooting with a firearm created a
strong probability of death or great bodily harm" to Roman. 720
ILCS 5/9-1(a)(2) (West 2000). Section 9-1(a)(2) is known as
"strong probability murder." People v. Villarreal, 198 Ill. 2d
209, 213, 761 N.E.2d 1175 (2001). The drafters of section 9-1
explained that "[s]ubsection (a)(1) is intended to define the two
most culpable types of conduct," while "[s]ubsection (a)(2) is
intended to define the conduct which, lacking actual intent to
kill or do great bodily harm or knowledge that such a result will
occur, involves knowledge of the probability that the offender's
acts will cause death or great bodily harm." 720 ILCS Ann. 5/9-1,
Committee Comments-1961, at 16-17 (Smith-Hurd 2002); Stalions,
139 Ill. App. 3d at 1036. Moreover, the intent to do great
bodily harm that results in death does not refer to the same
mental state as that of the intent to kill. Stalions, 139 Ill.
App. 3d at 1036.
Prior to the defendant's trial, defense counsel filed a
motion to dismiss both counts of murder on the basis of
collateral estoppel. Defense counsel argued that the defendant's
acquittal of attempt murder in his juvenile proceeding barred the
State's murder prosecution. Defense counsel relied on Carrillo,
164 Ill. 2d 144, 646 N.E.2d 582, and particularly the facts
surrounding the defendant Dolly Stacey.
In Carrillo, Dolly Stacey solicited Eduardo Carrillo to
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break into the basement apartment of her tenant, Helen Serafin,
in order to frighten Serafin into vacating the premises.
Carrillo, 164 Ill. 2d at 147. Carrillo and several associates
broke into Serafin's apartment and proceeded to rob and shoot
her. Carrillo, 164 Ill. 2d at 147. Serafin was paralyzed,
languished for nine years, and ultimately died. Carrillo, 164
Ill. 2d at 146. Shortly after the break-in and shooting, Stacey
and Carrillo were charged with attempt murder, home invasion,
armed robbery, burglary, aggravated battery, and armed violence.
Carrillo, 164 Ill. 2d at 147. Stacey was convicted of home
invasion and burglary on an accountability theory; however, she
was acquitted of attempt murder, armed robbery, aggravated
battery, and armed violence. Carrillo, 164 Ill. 2d at 147.
Carrillo pled guilty to all charges. Carrillo, 164 Ill. 2d at
147.
Upon Serafin's death, the State charged Carrillo and Stacey
with: (1) intentionally and knowingly shooting and killing
Serafin, (2) knowing that such a shooting created a strong
probability of death or great bodily harm, and (3) felony murder
based on home invasion, burglary, and armed robbery. Carrillo,
164 Ill. 2d at 146. The defendants moved to dismiss the
indictments based on double jeopardy. The trial court denied the
defendants' motions; however, the appellate court considered the
principles of double jeopardy and collateral estoppel and
reversed the trial court, barring all indictments except for that
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of murder based upon a strong probability of death or great
bodily harm. Carrillo, 164 Ill. 2d at 146.
For our purpose, it is only necessary to recount our supreme
court's findings as to Stacey's claims based on collateral
estoppel. Our supreme court found that collateral estoppel
barred Stacey's prosecution for murder based upon the intent to
kill or cause great bodily harm, as well as felony murder based
upon armed robbery, because she had been acquitted of attempt
murder, aggravated battery, and armed robbery. Based on the
three acquittals, it was established that reasonable doubt
existed as to the intent to kill (attempt murder), intent to
cause great bodily harm (aggravated battery), and armed robbery
(felony murder). Carrillo, 164 Ill. 2d at 152. "Consequently,
we conclude that the murder charges based upon intent to kill or
do great bodily harm are foreclosed as against Stacey based upon
principles of collateral estoppel." Carrillo, 164 Ill. 2d at
152.
Our supreme court did not find that the State was
collaterally estopped from charging Stacey with first degree
murder that alleged a mental state other than the mental states
present in attempt murder or aggravated battery. Specifically,
our supreme court held:
"As regards Stacey, we hold that she may
be charged with *** murder based upon ***
the knowledge that her actions created a
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strong possibility of death or great bodily
harm. We further find, however, that she may
not be charged with *** murder based upon ***
the intent to kill or cause great bodily
harm." Carrillo, 164 Ill. 2d at 152.
The State seeks to distinguish Carrillo by contending that
the defendant in this case was found guilty of aggravated
battery. The State correctly concedes that the defendant's
"acquittal for attempt murder was tantamount to a determination
that there was reasonable doubt that defendant had the requisite
intent to kill the victim and, therefore, foreclosed the
possibility of subsequently prosecuting defendant for intentional
murder." The State asserts, however, that the defendant's
argument would require this court to ignore the principles of
statutory construction. The State contends that the defendant's
argument is "fatally flawed" because it disregards the plain and
ordinary meaning of the first degree murder statute, which states
that a defendant commits first degree murder pursuant to section
9-1(a)(1) where "he either intends to kill or [intends to] do
great bodily harm to that individual." (Emphasis in original.)
720 ILCS 5/9-1(a)(1) (West 2000). The State goes on:
"[T]he People have no quarrel with the legal
premise that a defendant's earlier acquittals
for attempt murder foreclose any possibility
that the defendant could be prosecuted under
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a theory of intentional murder based on the
'intent to kill.' *** Here, defendant was
acquitted of attempt murder yet, found guilty
of aggravated battery. Therefore, the People
*** maintain that an acquittal for attempt
murder does not foreclose the possibility
that defendant can be prosecuted under a
theory of intentional murder based on 'intent
to do great bodily harm' where defendant was
previously convicted of aggravated battery
arising out of the same conduct."
The State's argument is a convincing one, but inapplicable
to the defendant at bar because the State did not charge the
defendant with intentional murder based on an "intent to do great
bodily harm." Instead, count I of the State's indictment charges
that the defendant "without lawful justification, intentionally
or knowingly shot and killed Jose Roman with a firearm." See 720
ILCS 5/9-(a)(1) (West 2000). Count I included as an element the
specific intent to kill with which he was charged in committing
the attempt murder in the juvenile proceeding. "The offense of
attempt murder requires the mental state of specific intent to
commit murder, to kill someone." People v. Jones, 81 Ill. 2d 1,
8, 405 N.E.2d 343 (1979). Section 8-4 clearly sets out, "A
person commits an attempt when, with intent to commit a specific
offense, he does any act which constitutes a substantial step
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toward the commission of that offense." 720 ILCS 5/8-4(a) (West
2000). As the defendant was acquitted of attempt murder, the
intent element required for attempt murder cannot support the
first count of the State's indictment charging the defendant with
"intentional murder." As such, the first degree murder charge
based on an "intent to kill" is foreclosed by Carrillo.
As in Carrillo, the State in this case was not barred from
charging the defendant with first degree murder based on the
defendant's shooting of the victim as stated in the indictment,
"knowing that such shooting with a firearm created a strong
probability of death or great bodily harm." See Carrillo, 164
Ill. 2d at 152; 720 ILCS 5/9-1(a)(2) (West 2000). However,
because the defendant was acquitted of attempt murder, there was
no basis for the intentional murder count of the State's
indictment. As such, the State erred in so charging the
defendant. In denying the defendant's motion to dismiss the
murder charges, the trial court distinguished Carrillo from the
facts of the instant case and stated, "[a]ttempt murder is a
specific intent crime, first degree murder is not." The trial
court's statement was only half right. First degree murder is
generally not a specific intent crime, except when intent is an
element of the offense. As Carrillo precluded the State from
prosecuting the defendant on the intentional murder charge, the
trial court erred in refusing to dismiss the first count of the
State's indictment.
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C. "One Good Count" Rule
Although we have determined that the State's charge relating
to "strong probability murder" was not collaterally barred by the
defendant's acquittal of attempt murder, we must address whether
the trial error in instructing the jury on intentional murder
tainted the jury's general verdict of guilt. The defendant
argues that because the State presented a theory of intentional
murder, and the jury was given an instruction regarding that
count of the defendant's indictment, there is no way to discern
whether the jury based its general finding of guilt on the
defective intentional murder count of the indictment or on the
count of strong probability murder.
While acknowledging the "one good count" rule established in
People v. Lymore, 25 Ill. 2d 305, 185 N.E.2d 158 (1962), may be a
basis to affirm a general finding of guilt where proof is
sufficient on the good count in an indictment, the defendant
contends that "the 'one good count' rule [does not apply] to
cases where a general verdict of guilt was tainted by a legally
deficient count." (Emphasis in original.) As support for his
position, the defendant quotes a passage from our supreme court
in People v. Griffin, 178 Ill. 2d 65, 83, 687 N.E.2d 820 (1997),
quoting People v. Griffin, 247 Ill. App. 3d 1, 16 (1993):
"'After [Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d
371, 112 S. Ct. 466 (1991)], then, a general guilty verdict based
on an instruction which includes different methods of committing
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the same offense in the disjunctive is ground for reversal only
where one alternative is legally defective ***.'"
Although there is no disputing that statement of law, its
application to this case is the issue. In reference to a
"legally defective" alternative to committing the same offense,
our supreme court in Griffin limited the application of "legally
defective" to where the alternative method "'fails to correctly
state the law, and not where the flawed alternative is factually
inadequate, i.e., where the evidence is insufficient to sustain
that count.'" Griffin, 178 Ill. 2d at 83-84, quoting People v.
Griffin, 247 Ill. App. 3d 1, 16, 616 N.E.2d 1242 (1993). No
error that the jury was misinstructed as to the law on
intentional murder has been urged here; nor did such an error
occur. The intentional murder instruction was a proper statement
of Illinois law; it was simply foreclosed by the previous finding
of not guilty of attempt murder. Moreover, the previous finding
of not guilty of attempt murder was an evidentiary-based finding
in the juvenile proceeding that reasonable doubt existed as to
the defendant's intent to kill; that is, the evidence was
insufficient to sustain that charge. The error in instructing
the jury on intentional murder in this case was not based on a
legally defective alternative method of committing first degree
murder, but rather on a factually inadequate alternative.
Accordingly, contrary to the defendant's assertion, this is not a
case "where a general verdict of guilt was tainted by a legally
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deficient count." As such, we find the defendant's conviction
based on the charge of strong probability murder must be upheld
because the jury's general verdict supports count II of the
indictment as the evidence presented in the case was more than
sufficient to support the jury's finding of guilt. Where a
general verdict is "returned, the effect is that the defendant is
guilty as charged in each count to which the proof is
applicable." People v. Cardona, 158 Ill. 2d 403, 411, 634 N.E.2d
720 (1994).
In light of the different mental states involved in
intentional murder and strong probability murder, a remand is in
order to allow the trial court to determine whether a lesser
sentence should be imposed on count II of the indictment. See
Cardona, 158 Ill. 2d at 412, 634 N.E.2d 720 (1994) ("A killing
that occurs when acts are performed with the intent to kill or to
do great bodily harm involves a more culpable mental state than
does either a killing that occurs when acts are performed with
the knowledge that they create a strong probability of death or
great bodily harm or a killing that occurs in the course of a
felony. [Citation]. Where charges of intentional, knowing, and
felony murder have been proved, intentional murder is deemed to
be the most serious offense").
II. Fifth Amendment
The defendant next contends that his fifth amendment right
against self-incrimination was violated because Officer Patoff's
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testimony was admitted at trial as evidence that he murdered
Roman. As previously stated, Officer Patoff interviewed the
defendant when he was a juvenile, after he was found delinquent,
and in anticipation of his dispositional hearing. The defendant
specifically maintains that his fifth amendment privilege against
self-incrimination was violated because he was not warned of his
right to remain silent before his interview with Officer Patoff.
The defendant concedes that he has forfeited this argument as he
failed to raise it during trial. However, the defendant
emphasizes that he raised this issue in his posttrial motion and
urges us to consider the merits of his argument. We elect to do
so.
The fifth amendment, made applicable to the states through
the fourteenth amendment, commands that "[n]o person *** shall be
compelled in any criminal case to be a witness against himself."
U.S. Const., amends. V, XIV. In support of his position, the
defendant analogizes the facts of this case to those in Estelle
v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 186621
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1
(1981).
In Estelle, a death sentence was overturned because a
defendant's inculpatory statements, made during a court-ordered
psychiatric inquiry to determine the defendant's fitness to stand
trial, were also subsequently used during sentencing to establish
1
We note that although Estelle dealt with the defendant's
fifth amendment privilege against self-incrimination, the Estelle
Court also discussed the defendant's sixth amendment right to
counsel and found that that right had also been abridged. As no
such claim is made by the defendant in this case, we need not
discuss it.
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the defendant's future dangerousness. Estelle, 451 U.S. at 469
68 L.Ed 2d at 373, 101 S. Ct. at 1876. The defendant in Estelle
was indicted for murder arising from his participation in the
armed robbery of a grocery store during which the clerk was
fatally shot by the defendant's accomplice. The State of Texas
announced that it would seek the death penalty; thereafter, the
trial judge, as was his common practice in death penalty cases,
ordered the defendant to undergo a psychiatric evaluation to
determine the defendant's competency to stand trial. Dr. James
P. Grigson interviewed the defendant in jail for approximately 90
minutes and concluded that he was competent. The defendant was
subsequently found guilty. Estelle, 451 U.S. at 456-57, 68 L.
Ed. 2d at 365, 101 S. Ct. at 1870.
In Texas, capital cases are bifurcated into guilt and
penalty phases. At the penalty phase, if the jury affirmatively
answers three questions on which the State has the burden of
proof beyond a reasonable doubt, the judge must impose the death
penalty. One of the critical questions for the jury is:
"'whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing
threat to society.'" Estelle, 451 U.S. at 457-58, 68 L. Ed. 2d
at 366, 101, S. Ct. at 1870, quoting Tex. Code Crim. Proc. Ann'
art. 37.071(b)(2) (Vernon Supp. 1980).
At the commencement of the penalty phase of the defendant's
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trial, defense counsel called three lay witnesses and the State
called only Dr. Grigson. Before trial, defense counsel had
obtained an order requiring the State to disclose the witnesses
it planned to use at both the guilt and penalty stages of the
defendant's trial. As Dr. Grigson's name was not on the witness
list, defense counsel objected to his being called and made a
motion to bar his testimony. The trial court denied the
defendant's motion. Dr. Grigson then testified that the
defendant (1) "'is a very severe sociopath'"; (2) "'will continue
his previous behavior'"; (3) has a sociopathic condition which
will "'only get worse'"; (4) has no "'regard for another human
being's property or for their life, regardless of who it may
be'"; (5) that there is "'no treatment, no medicine ... that in
any way at all modifies or changes this behavior'"; (6) that he
"'is going to go ahead and commit other similar *** criminal acts
if given the opportunity to do so'"; and (7) that he "'has no
remorse or sorrow for what he has done.'" Estelle, 451 U.S. at
459-60, 68 L. Ed. 2d at 367, 101 S. Ct. at 1871. Dr. Grigson's
testimony was based on the examination the trial court ordered to
determine the defendant's fitness to stand trial. Following the
presentation of evidence, the jury answered the three questions
in the affirmative and the trial court sentenced the defendant to
death. Estelle, 451 U.S. at 460, 68 L. Ed. 2d at 367, 101 S. Ct.
at 1871.
The U.S. Supreme Court first considered whether the
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admission of Dr. Grigson's testimony at the penalty phase of the
defendant's trial violated the defendant's fifth amendment
privilege against compelled self-incrimination because the
defendant was not advised before the pretrial psychiatric
examination that he had a right to remain silent and that any
statement he made could be used against him at a sentencing
proceeding. Estelle, 451 U.S. , at 461, 68 L. Ed. 2d at 368, 101
S. Ct. at 1872.
The Supreme Court began its analysis by determining that
there was no basis to distinguish between the guilt and penalty
phases of the defendant's capital murder trial; "the State is not
relieved of the obligation to observe fundamental constitutional
guarantees." Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101
S. Ct. at 1873. The Court continued, "[a]ny effort by the State
to compel [the defendant] to testify against his will at the
sentencing hearing clearly would contravene the Fifth Amendment.
Yet the State's attempt to establish respondent's future
dangerousness by relying on the unwarned statements he made to
Dr. Grigson similarly infringes on Fifth Amendment values."
Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101 S. Ct. at
1873. The Estelle Court then recounted that the trial court had,
on its own motion, ordered a psychiatric examination "for the
limited, neutral purpose of determining [the defendant's]
competency to stand trial," but the results of the examination
were used for a much broader objective. "Consequently, the
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interview with Dr. Grigson cannot be characterized as a routine
competency examination *** if the application of Dr. Grigson's
findings had been confined to serving that function, no Fifth
Amendment issue would have arisen." Estelle, 451 U.S. at 465, 68
L. Ed. 2d at 369, 101 S. Ct. at 1874.
The Estelle Court also noted that the defendant's future
dangerousness was a critical issue at sentencing, and it had to
be proven by the State beyond a reasonable doubt. The Estelle
court commented that to meet its burden, the State presented only
one witness whose testimony was based on the defendant's own
statements, "unwittingly made without an awareness that he was
assisting the State's efforts to obtain the death penalty."
Estelle, 451 U.S. at 466, 68 L. Ed. 2d at 371, 101 S. Ct. at
1875.
The Supreme Court also discussed that because Dr. Grigson's
examination of the defendant took place while the defendant was
in custody, the defendant should have been given Miranda
warnings. Estelle, 451 U.S. at 466-67, 68 L. Ed. 2d at 371 S.
Ct. at 1875. "That respondent was questioned by a psychiatrist
*** is immaterial. When Dr. Grigson went beyond simply reporting
to the court on the issue of competence and testified for the
prosecution at the penalty phase on the crucial issue of [the
defendant's] future dangerousness, his role changed and became
essentially like that of an agent of the State recounting
unwarned statements made in a postarrest custodial setting."
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Estelle, 451 U.S. at 467, 68 L. Ed. 2d at 372, 101 S. Ct. at
1875.
The Supreme Court concluded its fifth amendment analysis by
noting that although volunteered statements are not barred by the
fifth amendment, under Miranda the defendant's statements to Dr.
Grigson were not given freely or voluntarily without any
compelling influences and, as such, could not be used unless the
defendant had been apprised of his rights and had knowingly
decided to waive them. Estelle, 451 U.S. at 469, 68 L. Ed. 2d at
373, 101 S. Ct. at 1876.
The Illinois Appellate Court has previously addressed
similar fifth amendment arguments in separate cases. In each
case, the defendant argued that his privilege against self-
incrimination was violated when statements made at presentencing
interviews were introduced at the defendant's sentencing hearing.
In People v. Bachman, 127 Ill. App. 3d 179, 184-85, 468 N.E.2d
817 (1984), the Second District concluded that Miranda warnings
were not required in connection with the defendant's submission
to a routine and court authorized presentence interview. A
similar finding was reached in People v. Corrigan, 129 Ill. App.
3d 787, 795, 473 N.E.2d 140 (1985), where the Fourth District
found that "Miranda warnings are not required when a defendant is
interviewed in connection with a routine presentence report."
We distinguish the facts of the case sub judice from Bachman
and Corrigan because each defendant in those cases made the
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incriminating statements during routine presentence interviews in
anticipation of sentencing in noncapital cases. We find the
facts of this case to be more similar to Estelle. Here, the
defendant's statements to Officer Patoff were made in
anticipation of Officer Patoff's preparation of a routine social
investigation report for the juvenile court, which is as far as
the holdings in Bachman and Corrigan reach; however, the
defendant's statements were then used at his trial for Roman's
murder where the State must observe "fundamental constitutional
guarantees" which bar "[a]ny effort by the State to compel [the
defendant] to testify against his will." Estelle, 451 U.S. at
463, 68 L. Ed. 2d at 369, 101, S. Ct. at 1873.
The defendant's statements, here, were taken by Officer
Patoff for the equivalent of a presentence investigation report.
As the U.S. Supreme Court similarly noted in Estelle, if Officer
Patoff's report had been confined to serving that function, no
fifth amendment issue would have arisen. Estelle, 451 U.S. at
465, 68 L. Ed. 2d at 370, 101 S. Ct. at 1874; A social
investigation report is mandated in the State of Illinois and
cannot be waived. In re D.B., 303 Ill. App. 3d 412, 422, 708
N.E.2d 806 (1999). A social investigation report is a useful
tool to the juvenile court because a juvenile court must have
current social information about a juvenile as provided in the
statute before making the important life-affecting decision to
commit a juvenile to the Department of Corrections. D.B., 303
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Ill. App. 3d at 422. However, the defendant's statements were
used for more than a disposition recommendation, without the
defendant being made aware of that possibility. The fifth
amendment privilege, therefore, is directly involved here because
the State used as evidence against the defendant the substance of
his disclosures to Officer Patoff during the social investigation
interview. Estelle, 451 U.S. at 465, 68 L. Ed. 2d at 370, 101 S.
Ct. at 1874.
Because the safeguards of the fifth amendment privilege were
not afforded the defendant, we find that the trial court erred in
permitting the State to introduce Officer Patoff's testimony at
the defendant's murder trial. The State urges that if we find a
fifth amendment violation, the admission of Officer Patoff's
testimony amounts to harmless error in light of the overwhelming
evidence against the defendant.
III. Harmless Error Beyond A Reasonable Doubt
A constitutional error does not automatically require
reversal of a conviction. People v. Patterson, 217 Ill. 2d 407,
423, 841 N.E.2d 889 (2005), citing Arizona v. Fulminante, 499
U.S. 279, 306, 113 L. Ed. 2d 302, 329, 111 S. Ct. 1246, 1263
(1991). The United States Supreme Court has applied harmless-
error analysis to a wide range of errors and has recognized that
most constitutional errors are trial errors, that is, "'error[s]
which occurred during the presentation of the case to the jury,
and which may therefore be quantitatively assessed in the context
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of other evidence presented in order to determine whether its
admission was harmless beyond a reasonable doubt.'" Patterson,
217 Ill. 2d at 424, quoting Fulminante, 499 U.S. at 307-08, 113
L. Ed. 2d at 330, 111 S. Ct. at 1264. We find that the
constitutional error in this case was a "trial error" and that
the error is subject to a harmless-error analysis. The issue,
therefore, is whether the fifth amendment violation in the case
at bar was harmless beyond a reasonable doubt.
In determining whether a constitutional error is harmless,
the test to be applied is whether it appears beyond a reasonable
doubt that the error at issue did not contribute to the verdict
obtained. People v. Patterson, 217 Ill. 2d 407, 428, 841 N.E.2d
889 (2005).
"[T]his court [has] listed three different
approaches for measuring error under this
harmless-constitutional-error test: (1)
focusing on the error to determine whether it
might have contributed to the conviction, (2)
examining the other evidence in the case to
see if overwhelming evidence supports the
conviction, and (3) determining whether the
improperly admitted evidence is merely
cumulative or duplicates properly admitted
evidence." Patterson, 217 Ill. 2d at 428;
citing People v. Wilkerson, 87 Ill. 2d 151,
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157, 429 N.E.2d 526 (1981).
In applying these approaches to the case at bar to determine
whether the admission of Officer Patoff's testimony was harmless
beyond a reasonable doubt, we find that Officer Patoff's
testimony did not contribute to the defendant's conviction
because it was cumulative and duplicated other evidence properly
admitted at the defendant's murder trial and there was
overwhelming evidence to support the defendant's conviction. In
his reply brief, the defendant argues that "[Officer] Patoff's
testimony amounted to nothing more tha[n] an unwarned confession
attributed to [the defendant], and a 'confession is the most
powerful piece of evidence the State can offer, and its effect on
the jury is incalculable.' [Citation]" We agree that a
confession is powerful evidence when placed before the jury, but
the defendant had given two statements implicating himself in the
shooting of Roman prior to speaking with Officer Patoff and
evidence of these other "confessions" was presented to the jury.
The defendant first gave a statement to Lieutenant Riccio.
At the defendant's murder trial, Lieutenant Riccio testified that
after being given Miranda warnings the defendant incriminated
himself and admitted to shooting Roman in the back of the head.
Later, the defendant provided ASA Torcasso with a written
statement. ASA Torcasso testified that he assisted the defendant
in making a written statement in which the defendant admitted
shooting Roman in retaliation for an earlier gang shooting. ASA
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Torcasso added that the defendant's statement was signed by the
defendant, ASA Torcasso, Youth Officer Hammermeister, and
Lieutenant Riccio. Moreover, besides the defendant's statements
to Lieutenant Riccio and ASA Torcasso, the State introduced other
overwhelming evidence, including the testimony of codefendant
Rios, that led to the defendant's conviction. Accordingly, we
find that under the "harmless-constitutional-error test" set out
in Patterson, the erroneous admission of Officer Patoff's
testimony to be harmless beyond a reasonable doubt. Patterson,
217 Ill. 2d at 428, 841 N.E.2d 889.
IV. Prosecutorial Misconduct
The defendant's final contention is that he was denied a
fair trial because the State played to the jury's emotions by
presenting irrelevant information about the victim and his
family. The defendant maintains that the State's opening
statement and closing arguments, as well as the testimony of
Hernandez, Officer Flynn, Cathy Roman, and Dr. Grendon, were
prejudicial.
The defendant acknowledges that these claims were not
preserved for appeal because there was neither a trial objection
nor a written posttrial motion as to each. People v. Enoch, 122
Ill. 2d 176, 186, 522 N.E.2d 1124 (1988) (both an objection at
trial and a written posttrial motion are required to preserve an
issue for appeal). Therefore, the alleged errors are only
reviewable under the plain error exception to the forfeiture
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rule. It is well established that plain error will be invoked in
criminal cases only where the evidence is closely balanced or the
error is of such magnitude that the accused was denied a fair
trial. People v. Williams, 192 Ill. 2d 548, 570, 736 N.E.2d 1001(2000). As we have determined that the evidence is not closely
balanced, the defendant must meet the second prong under plain
error review that he was denied a fair trial because of the
magnitude of the claimed errors. "A reviewing court will grant
relief under the second prong of the plain error rule only if the
error is so fundamental to the integrity of the judicial process
that the trial court could not cure the error by sustaining an
objection or instructing the jury to disregard the error."
People v. Vargas, 174 Ill. 2d 355, 363-64, 673 N.E.2d 1037(1996). In a plain error analysis, it is the defendant that
bears the burden of persuasion as to prejudice. People v.
Thurow, 203 Ill. 2d 352, 363, 786 N.E.2d 1019 (2003).
Specifically, the defendant contends that "[t]he prosecutor
presented irrelevant argument and testimony about the decedent
and his family, including the fact that the decedent had tears
coming down his eyes when he was discovered lying on the street
immediately after the shooting; that the decedent left behind a
pregnant girlfriend and two children; and that the decedent wore
a diaper because he could not go to the bathroom on his own." To
support his claim that the prosecutor's conduct denied him a fair
trial, the defendant concludes: "The sole purpose of these antics
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was to inflame and arouse the passions and emotions of the jurors
by evoking sympathy for the decedent and his family. It is
impossible to determine to what extent these tactics succeeded in
improperly influencing the jury's finding of guilt." The
defendant also asserts these errors regard "a matter of law and
should be reviewed de novo." Finally, he contends that the
errors were "reversible."
We are aware of no authority for de novo review of trial
errors in the context of plain error analysis. The only case
cited by the defendant for this proposition, People v. Robinson,
172 Ill. 2d 452, 457, 667 N.E.2d 1305 (1996), concerns "the
construction of a statute" and is thus inapposite. We reject the
defendant's assertion of de novo review of the issue before us.
Regarding the claimed errors being reversible, "all plain errors
are reversible ones, [however,] not all reversible errors are
also 'plain' ***." People v. Keene, 169 Ill. 2d 1, 17, 660
N.E.2d 901 (1995). Thus, the defendant's claim that the alleged
"error in this case is reversible," adds little to the plain
error analysis.
Finally, we have reviewed the alleged errors in the context
of the record, and find none rises to the level of plain error so
as to have deprived the defendant of a fair trial. In other
words, we cannot say that any of the claimed errors were so
fundamental to the integrity of the judicial process and so
prejudicial to the defendant as to warrant relief under this
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second prong of the plain error rule. See People v. Carlson, 79
Ill. 2d 564, 577, 404 N.E.2d 233 (1980) (whether or not the
erroneous evidence or remarks were objected to at the trial, a
court of review will grant relief if the trial error is so
prejudicial that real justice has been denied). Accordingly,
there is no basis to excuse the procedural default with respect
to the disputed testimony and remarks; the procedural bar must be
honored. Keene, 169 Ill. 2d at 27-28.
CONCLUSION
For the foregoing reasons, we affirm the defendant's
conviction but remand for resentencing.
Affirmed; sentence vacated and cause remanded.
BURKE, and HALL, JJ., concur.
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