People v. Jones ( 2007 )

SECOND DIVISION
February 6, 2007
No. 1-05-0219
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
CARRANZ JONES, ) Honorable
) Clayton J. Crane,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Following a bench trial, defendant Carranz Jones was
convicted of first degree murder and sentenced to 37 years in
prison.
On appeal, Jones contends: (1) his counsel was ineffective
for failing to file a motion to suppress a videotaped confession
in which defendant invoked his right to remain silent; (2) he
proved second-degree murder by a preponderance of the evidence;
and (3) his mittimus should be corrected to reflect 1,648 days of
credit for time spent in custody. We affirm defendant’s
conviction and sentence and order the mittimus corrected.
FACTS
At trial, the evidence showed that on June 2, 2000, the
defendant killed his girlfriend Diane Vance by beating her with a
hammer.
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Vance was found in the reclined front passenger seat of her
car in an alley. There were burn holes in her pants on the right
knee and a spent match on her leg. The left front pants pocket
was turned inside out. The autopsy report listed 46 lacerations
to her head and neck. The lacerations penetrated her skull,
spine, larynx, esophagus, and a carotid artery. Some of the
lacerations were consistent with being caused by the claw of the
hammer, some with the front of the hammer. Both sides of Vance’s
jaw were broken, and her skull was fractured. The medical
examiner testified this would have required severe force. He
said Vance’s injuries were consistent with being reclined in the
passenger seat with the assailant on the left striking her. She
suffered brain hemorrhaging and significant blood loss. She did
not die immediately. Her right knee had postmortem burns. Vance
was pregnant; the fetus was approximately 24 weeks old.
Vance lived in a house with her aunt, cousin, and brother.
She and the defendant had a two-year-old son. Vance’s aunt
testified the defendant slept at the house with Vance every
night.
Chicago police detective Robert Lenihan testified the police
found a pair of dark blue jeans at the house. They found money
in the pocket of the jeans. The bills had blood droplets on
them. Vance’s brother, Lonnie Vance, told police the jeans
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belonged to the defendant. The parties stipulated Vance’s DNA
profile matched that of the blood found on three of the bills.
One of the latent fingerprints recovered from the hood of Vance’s
car matched defendant’s fingerprint.
Joanna Leafblad, an assistant state’s attorney, interviewed
the defendant. Leafblad took a videotaped statement of the
defendant. Prior to the videotaped statement, Leafblad said, she
introduced herself to the defendant and advised him of his
Miranda rights. Detective Lenihan was present for the statement.
The video was played at the trial.
A transcript of the videotape is not in the record. We have
reviewed the videotape. On the tape, the defendant agreed he had
been advised of his rights earlier. Leafblad summarized what the
defendant had told her--that he was driving to work, Vance
started arguing with him, he backhanded her a few times, he
picked up a hammer and hit her with it a few times, he heard her
moaning, left her in the car in an alley, threw the keys, and
took the bus home. Defendant agreed that is what he told her.
Leafblad read defendant his rights again. He said he understood.
Defendant then said, "I can’t do this, man." When asked
what he was referring to, defendant said, "this statement stuff,
man." Leafblad asked defendant if he wished to remain silent; he
said yes. Leafblad asked defendant if they had spoken earlier
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and if her summary of what he told her was what they talked
about. Defendant said yes. Without prompting, defendant then
said, "Go ahead." Leafblad asked if he was saying he wished to
proceed with the videotaped statement. Defendant said, "Yeah.
Go ahead." Leafblad again advised defendant of his rights.
Leafblad then asked defendant a series of questions about
the incident. The defendant said he was driving Vance to the
train so she could go to work. Vance was nagging him, not
yelling, but speaking in a regular voice. The two started
arguing. Vance poked the defendant in his shoulder. She grabbed
the wheel while he was driving. Defendant pulled the car over,
and the two continued arguing. Vance spit at the side of his
face and hit him in the shoulder with her fist. Defendant told
Vance to calm down. He hit her in the face twice. Vance was
hitting him. The defendant demonstrated how he reached out his
arm to hold her back. After he resumed driving, defendant pulled
the car over a second time.
The two were grabbing at each other. Defendant took a
hammer from the back seat of the car and hit her four or five
times to "get her back" and "to get her to stop" hitting him.
Vance moved to the side and "got kind of quiet." She said she
wasn’t feeling good and began moaning. The defendant pulled into
an alley. He took the keys out of the ignition and threw them to
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the side of the alley. He took cash out of Vance’s pocket. He
got on a bus and went home. He went to bed.
On cross-examination, Leafblad testified she reviewed the
paperwork that had been prepared by police prior to interviewing
the defendant. She did not recall whether there were
contradictions between what defendant told police and what he
told her.
The defense presented no witnesses. At the end of the
trial, the court convicted the defendant of first degree murder.1
Defendant was sentenced to 37 years in prison.
DECISION
I. Ineffective Assistance
The defendant contends he received ineffective assistance
because his counsel failed to file a motion to suppress the
videotaped statement. Claims of ineffective assistance of
counsel are evaluated under the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.
Ct. 2052 (1984). The defendant must show counsel’s performance
fell below an objective standard of reasonableness, and the
deficient performance prejudiced the defendant. Strickland, 466
1
The court convicted the defendant of two counts of
intentional homicide of an unborn child but later reversed its
findings on those counts.
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U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To show
prejudice, a defendant must show there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland,
466 U.S. at 694, 80 L.E.2d at 698, 104 S. Ct. at 2068. The
failure to establish either prong of the Strickland test is fatal
to a defendant’s claim. People v. Ceja, 204 Ill. 2d 332, 358,
789 N.E.2d 1228 (2003).
When alleging ineffective assistance of counsel, a defendant
must overcome the presumption that the attorney’s conduct will be
considered a matter of trial strategy. People v. Woodard, 367
Ill. App. 3d 304, 312, 854 N.E.2d 674 (2006). The decision to
file a motion to suppress generally is considered a matter of
trial strategy, which is entitled to great deference. People v.
White, 221 Ill. 2d 1, 20, 849 N.E.2d 406 (2006). In order to
show the decision amounted to ineffective assistance, the
defendant must show the outcome of the trial would have been
different had the evidence been suppressed. Woodard, 367 Ill.
App. 3d at 312.
Relying on People v. Hernandez, 362 Ill. App. 3d 779, 840
N.E.2d 1254 (2005), defendant contends his videotaped statement
was inadmissible because the assistant state’s attorney failed to
honor his invocation of his right to remain silent and continued
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to question him after the invocation. In Hernandez, the
transcript of the defendant’s videotaped statement showed that
after the assistant state’s attorney summarized the defendant’s
confession and advised him of his rights, she asked the defendant
whether he wished to talk. The defendant responded, "no, not no
more." He again was asked whether he wished to talk, and he
answered yes. Hernandez, 362 Ill. App. 3d at 781-82. Defendant
then gave a statement confessing to the crime. Defendant’s
counsel filed a motion to suppress his statement but did not base
the motion on his invocation of his right to remain silent.
The court found defendant clearly and unequivocally invoked
his right to remain silent. Hernandez, 362 Ill. App. 3d at 785-
86. Statements made after the defendant properly invokes his
right to silence are admissible only if the prosecutors
scrupulously honor the defendant’s right to cut off questioning.
Hernandez, 362 Ill. App. 3d at 786.
The court held defense counsel was ineffective for not
raising the argument that defendant had invoked his right to
silence, and held defendant was prejudiced by his failure to do
so. Hernandez, 362 Ill. App. 3d at 788-89. The court found the
videotaped statement would have been suppressed had defense
counsel raised the argument. Nor did there appear to be "any
valid trial strategy" in counsel’s failure to do so. (Emphasis
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added.) Hernandez, 362 Ill. App. 3d at 788.
We agree defendant invoked his right to silence during the
interrogation. However, we are not reviewing the denial of a
motion to suppress. The issue is whether defense counsel was
ineffective for failing to file the motion. In contrast to
Hernandez, defense counsel in this case had a valid strategic
reason to allow the State to introduce the videotaped statement.
Defendant’s theory at trial was based on the mutual combat
category of provocation to support a conviction for second degree
murder. It likely was his only defense. According to the tape,
defendant’s initial statement did not include any details about
his argument with Vance. Nothing about her hitting, poking, or
punching him, spitting at him, or grabbing the steering wheel.
But it did contain an admission that he struck Vance a few times,
heard her moaning, and left her in the car in an alley.
Defense counsel’s closing argument focused on all the
details contained in defendant’s videotaped confession. Absent
the introduction of the videotape, counsel would have had
virtually no evidence to argue defendant was engaged in mutual
combat with Vance.
Defendant has not overcome the strong presumption that his
counsel’s failure to file a motion to suppress was the result of
trial strategy. Because we find defendant does not meet the
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first Strickland prong, i.e., that defendant’s performance was
deficient, we need not analyze the prejudice prong. Even if we
were to reach the prejudice prong, we find it unlikely the
outcome of the trial would have been different where defendant
clearly confessed to hitting Vance with a hammer before he
memorialized the statement on the videotape, and where the
victim's blood was found on money in the defendant's pocket.
Defendant has failed to carry his burden to show his counsel
provided ineffective assistance.
II. Second Degree Murder
Defendant contends his conviction should be reduced to
second degree murder because he proved by a preponderance of the
evidence his actions were based on a sudden and intense passion
resulting from serious provocation. As evidence, he cites his
statements on the videotape that in the course of the argument,
Vance hit, pushed, and poked him, grabbed the steering wheel
while he was driving, spit on him, and wrestled with him.
A person commits second degree murder when he or she
intentionally causes the death of another and the person is
acting either under a sudden and intense passion resulting from
serious provocation by the victim, or under an unreasonable
belief that the circumstances surrounding the killing would
justify or exonerate its commission. 720 ILCS 5/9-2(a)(1),
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(a)(2) (West 2004). "Serious provocation" is defined as "conduct
sufficient to excite an intense passion in a reasonable person."
720 ILCS 5/9-2(b) (West 2004).
A defendant on trial for first degree murder must prove one
of the mitigating factors by a preponderance of the evidence to
be found guilty of the lesser offense. 720 ILCS 5/9-2(c) (West
2004). Illinois courts recognize four categories of provocation
sufficient to warrant a second-degree murder instruction--mutual
quarrel or combat, substantial physical injury or assault,
illegal arrest, or adultery with one’s spouse. People v. Eason,
326 Ill. App. 3d 197, 207, 760 N.E.2d 519 (2001).
Mutual combat is defined as "a fight or struggle entered
into by both parties willingly or a mutual fight upon a sudden
quarrel and in hot blood upon equal terms where death results
from the combat." People v. Rivera, 255 Ill. App. 3d 1015, 1026,
627 N.E.2d 294 (1993). The evidence must show the confrontation
was mutual, and both parties participated in the fight. People
v. Jackson, 304 Ill. App. 3d 883, 893, 711 N.E.2d 360 (1999).
Mutual combat does not apply where the defendant’s retaliation
was out of all proportion to the provocation, especially where
the defendant used a deadly weapon to commit the homicide.
Rivera, 255 Ill. App. 3d at 1026.
Where a defendant argues he presented sufficient evidence to
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prove one of the mitigating factors, we consider whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
mitigating factors were not present. People v. Blackwell, 171
Ill. 2d 338, 357-58, 665 N.E.2d 782 (1996).
We reject defendant’s contention that there was evidence of
mutual combat sufficient to reduce his conviction to second
degree murder. The defendant responded to Vance’s hitting,
poking, and spitting at him by beating Vance with a hammer
multiple times, using the flat and claw ends of the hammer to
fracture her jaw and skull and lacerate her neck. Defendant’s
actions were grossly disproportionate to any provocation by
Vance.
Where a defendant attacks a victim on slight provocation
with disproportionate violence, the mutual combat aspect of
provocation does not apply as a matter of law. People v. Ford,
163 Ill. App. 3d 497, 503, 516 N.E.2d 766 (1987). See also
People v. Austin, 133 Ill. 2d 118, 125, 549 N.E.2d 331 (1989)
(defendant shot and killed unarmed victim who provoked defendant
by speaking gruffly to her and striking her on the hand with a
bus transfer punch); People v. Sutton, 353 Ill. App. 3d 487, 496,
818 N.E.2d 793 (2004) (defendant responded to allegedly being hit
by the victim with a roller skate by stabbing the victim 23
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times); People v. Lockhart, 201 Ill. App. 3d 700, 714, 558 N.E.2d
1345 (1990) (defendant responded to victim’s grabbing defendant
and choking him by chasing and shooting victim).
III. Mittimus
Defendant contends his mittimus must be corrected to reflect
the number of days of credit for time spent in custody. He says
he should have received 1,648 days of credit, 29 more days than
the 1,619 days granted by the trial court. The State concedes
defendant is entitled to 29 additional days of credit. Pursuant
to Supreme Court Rule 615 (134 Ill. 2d R. 615), a reviewing court
on appeal may correct the mittimus at any time, without remanding
the cause to the trial court. People v. Whitfield, 366 Ill. App.
3d 448, 451, 851 N.E.2d 730 (2006). Accordingly, we order the
correction of that portion of the mittimus to reflect 1,648 days
of credit.
CONCLUSION
We affirm the defendant’s conviction and sentence and order
the mittimus corrected.
Affirmed and mittimus corrected.
Wolfson, P.J., with Hoffman, and South, JJ., concurring.
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