People v. Viramontes , 69 N.E.3d 446 ( 2017 )

2017 IL App (1st) 142085FIRST DIVISION
January 9, 2017
No. 1-14-2085
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 10 CR 9341
)
HERIBERTO VIRAMONTES, ) Honorable
) Jorge Luis Alonso,
Defendant-Appellant. ) Judge Presiding.
JUSITCE HARRIS delivered the judgment of the court, with opinion.
Justices Simon and Mikva concurred in judgment and opinion.
OPINION
¶1 Following a jury trial, defendant was convicted of multiple felonies including armed
robbery and attempted murder. The testimony and evidence presented showed that in the early
morning of April 23, 2010, the defendant, Heriberto Viramontes, along with his co-defendant,
Marcy Cruz, were driving around the Bucktown neighborhood of Chicago, when defendant
suggested they go rob some “white hoes.” They parked the vehicle they were in and defendant
grabbed a bat before exiting the vehicle. The victims were walking down Damen Avenue when
defendant approached them from behind. He swung his bat at the first victim, Stacy Jurich,
striking her in the head. He then struck the other victim, Natasha McShane, also hitting her in the
head. He then struck Jurich a second time in the neck before making off with their valuables.
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Both victims spent weeks in the hospital and suffered permanent injuries. McShane’s injuries
were so extensive she will require 24-hour care for the rest of her life.
¶2 On appeal, defendant challenges his conviction for attempted murder, the admission of
jail house phone recordings, and the trial court’s refusal to tender all of Marcy Cruz’s mental
health records. After a review of the facts and relevant case law, we conclude the facts of this
case are such that a jury could find the defendant intended to kill both victims when he violently
struck each of them in the head with a baseball bat. We further find the trial court did not abuse
its discretion in admitting jail house phone tapes, because the State had laid a sufficient
foundation. Finally, we conclude that defendant’s failure to include mental health records on
appeal results in the forfeiture of this issue.
¶3 JURISDICTION
¶4 The defendant appeals from a final judgment of conviction in a criminal case. Defendant
was sentenced by the trial court on June 17, 2014. He timely filed his notice of appeal on the
same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois
Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final
judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct.
Rs. 603, 606 (eff. Feb. 6, 2013).
¶5 BACKGROUND
¶6 Given the amount of testimony and evidence presented, this background presents only
those facts necessary for the disposition of this appeal.
¶7 Defendant, Heriberto Viramontes, was charged by indictment with two counts of
attempted first degree murder, two counts of armed robbery, one count of armed violence, two
counts of aggravated unlawful restraint, eight counts of aggravated battery, two counts of
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unlawful restraint, four counts of misuse of a credit card, and two counts of use of a credit card
by another. Defendant was originally charged along with co-defendant Marcy Cruz. The charges
arose out of an incident that occurred on April 23, 2010, when defendant robbed Natasha
McShane and Stacy Jurich of their purses and other items after violently striking them both on
the head with a baseball bat.
¶8 Prior to trial, co-defendant Cruz’s counsel requested a forensic clinical service evaluation
for fitness, and she was found fit to stand trial. Defendant also filed a motion to bar evidence that
included over 40 compact discs (CDs) of phone calls from defendant while in Cook County Jail.
The court denied the motion, ruling there was nothing about the calls that made them
inadmissible or inappropriate.
¶9 Also prior to trial, Cruz pled guilty to two counts of attempted first degree murder in
exchange for a 22-year sentence. In exchange for her guilty plea, Cruz agreed to testify against
defendant at trial. Defendant filed a motion to produce Cruz’s mental health records. In response,
the State alleged defendant failed to show how the medical records were relevant to Cruz’s
credibility. The trial court ordered records from Forensic Clinical Services, reviewed the
information, and issued subpoenas to several hospitals. The court determined the following
records were admissible and relevant: Cruz’s admission to Cermak Hospital on April 29, 2010,
after her arrest; records from Forensic Clinical Services; and records from Norwegian American
Hospital from August 2008. The trial court allowed production of Cruz’s most recent mental
health records but denied access to earlier records when Cruz was younger. The trial court
explained that when deciding which mental health records were discoverable, the court balanced
Cruz’s right to confidentiality against defendant’s sixth and fourteenth amendment rights. The
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court stated it looked for evidence of psychosis, alcohol, and/or drug addiction and other
psychopathic traits in deciding what to disclose.
¶ 10 At trial, one of the victims, Stacy Jurich, testified that in 2010, she was living in the
Bucktown neighborhood in Chicago, Illinois. Jurich met the other victim, Natasha McShane, that
same year after McShane moved to Chicago from Ireland. On April 22, 2010, Jurich made plans
to meet McShane for dinner after work. They met at 9:00 p.m. at Cans, a restaurant. McShane
had a shopping bag from H&M, her purse and her class materials with her. Jurich also had her
purse with her. Later, Jurich and McShane walked across the street to the Tavern restaurant, had
cocktails and danced.
¶ 11 Jurich testified she and McShane left the Tavern restaurant at around 3:00 a.m., and
started walking toward her house. They walked north on Damen Avenue and as they walked
underneath a viaduct, Jurich was hit in the head from behind. She felt excruciating pain, lost her
equilibrium and suddenly had the taste of metal in her mouth. Jurich fell forward, caught herself,
and looked to her left to see McShane being hit in the head with a silver baseball bat. McShane
fell down immediately and lifelessly onto the sidewalk. Jurich was hit a second time in her neck.
She testified her purse was pulled from her while the robber called her a “stupid bitch.” After her
purse was pulled from her arm, Jurich saw a man wearing a hoody running away carrying her
purse and McShane’s belongings.
¶ 12 After the assailant fled, Jurich tended to McShane, trying to support her head, which was
extremely bloody. Jurich waved down a taxi and begged the driver to call 911, which he did.
When the paramedics arrived Jurich felt severe pain, nausea, and disoriented. As Jurich spoke
with police, she felt weak as if she would pass out. After that she could not remember anything
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else except briefly being in an ambulance, then being in a bright room with people shouting her
name.
¶ 13 Jurich testified she woke up in the Intensive Care Unit (ICU) and felt scared because she
did not understand what had happen to her. Her body felt like it was “filled with sand” and she
could not move the left side of her body. A few days after being admitted, Jurich had a
conversation with the police and informed them that her initial description of the assailant’s race
was incorrect and his skin was medium brown and not black. She was also able to identify the
items McShane had in her possession the night of the attack.
¶ 14 The back of her skull had been cracked open and was stapled shut at the hospital. She had
seizures while hospitalized and was medicated. Upon discharge she was not permitted to drive.
At the time of trial, Jurich testified that the incident resulted in the loss of her peripheral vision,
she continued to have balance issues, and continued to experience excruciating headaches.
¶ 15 Shelia McShane testified that her daughter Natasha had returned to Ireland and could not
travel to Chicago to testify because of her brain injury. Mrs. McShane testified she cared for her
daughter five days a week and Natasha’s father, Liam McShane, cared for her the other two days
of the week. On April 24, 2010, she received a telephone call from Chicago that her daughter
was in the hospital and she needed to come immediately. At the time, her daughter had only been
in Chicago for four months, having arrived in January 2010 to complete her Master’s Degree in
Urban Environmental Planning at the University of Illinois Chicago. Mrs. McShane last saw her
daughter prior to the incident in January 2010, when she drove her to the airport to move to
Chicago.
¶ 16 Mrs. McShane testified that prior to her injuries, her daughter was very outgoing, full of
life, full of energy, loved to travel, and was artistic. When Mr. and Mrs. McShane arrived in
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Chicago, they went directly to Illinois Masonic Hospital to visit their daughter who was
unconscious with her hair was partially shaved off from surgery that relieved pressure off of her
brain. Her eyes were swollen and blackened. She remained unconscious for the entire three
weeks Mr. and Mrs. McShane were in Chicago. In July 2010, Natasha returned to Ireland via air
ambulance.
¶ 17 Mrs. McShane testified that after Natasha returned to Ireland, she experienced a seizure
that left her catatonic and in a wheelchair. Prior to the seizure, she had been making slow
progress but the seizure set her back significantly. She also had an infection after surgery and a
second seizure resulting in a hip fracture. At the time of trial, she could not read, write, or talk.
She is mostly wheelchair bound. Mrs. McShane identified a video showing her daughter’s
physical therapy at the Rehabilitation Institute of Chicago and more recent footage from Ireland.
¶ 18 Dr. Marius Katilius, an expert in the field of trauma surgery, treated both Jurich and
McShane at Illinois Masonic Hospital. On April 23, 2010, when Dr. Katilius first observed
Jurich, he saw a scalp laceration actively bleeding. He stopped the bleeding with a suture, tied
off the “bleeder” and closed the laceration with staples. Prior to leaving the Emergency Room
(ER), Jurich had seizures, which Dr. Katilius opined were trauma-related. He diagnosed Jurich
with a traumatic brain injury caused by blunt force trauma. He opined a hit with a baseball bat
was consistent with the injuries she sustained. After leaving the ER, Jurich was transported to the
Intensive Care Unit (ICU) for close observation of her neurologic status.
¶ 19 McShane arrived at Illinois Masonic Hospital at 4:00 a.m. and after an examination, Dr.
Katilius inserted a breathing tube in McShane’s windpipe and observed several scalp lacerations.
McShane had a skull fracture of the right temporal and parietal bones, hemorrhagic contusions, a
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subarachnoid hemorrhage, and a subdural hematoma. He also opined McShane’s injuries were
consistent with being hit with a baseball bat.
¶ 20 Commander Joseph Salemme testified that on April 23, 2010, he learned of an
investigation regarding an attack at 1800 N. Damen. Commander Salemme joined the
investigation and focused mainly on obtaining Jurich’s and McShane’s cellular phone
information as well as their bank records and credit card information. On April 25, 2010,
Commander Salemme learned information regarding Stacey’s cell phone and went to 3149 N.
Springfield in Chicago, which was a 20-unit apartment building. He and other police officers
canvassed the building. During the canvass, Commander Salemme met Marcy Cruz. The next
day Commander Salemme learned Jurich’s cell phone had been used to call a phone number
registered to Josue Espinoza, Cruz’s boyfriend. Once at 3149 N. Springfield, Commander
Salemme saw Marcy Cruz walking towards a grey van; she was placed under arrest and her van
was impounded. Later, the police recovered a baseball bat with silver duct tape from the rear of
the van.
¶ 21 Commander Salemme testified that on April 26, 2010, at around 11:30 p.m., he assisted
in locating defendant and Kira Lundgren at 2715 West Evergreen. Defendant was placed under
arrest and Commander Salemme interviewed Lundgren.
¶ 22 Dr. Leonard Irwin Kranzler, an expert in neurosurgery, treated Jurich and McShane on
April 23, 2010, at Illinois Masonic Hospital. He learned from McShane’s CAT scan she had a
traumatic subarachnoid hemorrhage, as well as a cerebral contusion. He recommended
monitoring the pressure in her skull. When he first examined McShane, he saw the pressure in
her skull was not elevated but her brain was swollen. A few hours later, the pressure in
McShane’s brain increased considerably so she was treated with a diuretic. McShane regressed
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to the point where her pupils dilated, indicating the efforts to control the swelling were failing, so
Dr. Kranzler performed emergency surgery to alleviate the pressure on her brain. The surgery
involved removing a large area of McShane’s skull and the tip of the temporal lobe of her brain.
After the surgery, a CAT scan revealed McShane had suffered a stroke, which meant possible
vision loss.
¶ 23 Dr. Kranzler opined McShane’s injuries were consistent with blunt force trauma and
being hit with baseball bat. Dr. Kranzler further opined the fracture on McShane’s skull required
“considerable force.” He explained that had they not done the surgery to remove a portion of the
skull, the brain stem would have been damaged, interfering with the heart and lungs’ ability to
function normally. Once McShane was in Ireland, hydrocephalus had developed, which meant
water on the brain. Hydrocephalus is considered a delayed effect of head trauma that can cause a
person’s condition to worsen.
¶ 24 Marcy Cruz testified that on April 23, 2010, at around 11:30 p.m., she went to a bar,
located at Division and Campbell, with her friend Honey. Defendant, whom Cruz knew as
“Betto,” met Cruz at the bar and they left together in Cruz’s grey minivan. After having sex in
the van, they drove around in the Bucktown neighborhood where defendant stated, “[l]ook at all
these white hoes,” and mentioned he wanted to rob one of them. Defendant parked, grabbed a bat
from the back seat of the van, then exited.
¶ 25 Cruz testified that a few minutes later defendant entered the side sliding door of the van
with two purses and the bat. Cruz got into the driver’s seat and drove down Milwaukee Avenue
and parked under the “El” after defendant told her to pull over. Defendant stated, “[t]he girls
were really pretty and [I] did some bogus shit.” Defendant told Cruz to look through the purses
and “grab what [she] like[d].” Defendant took the credit cards and Cruz grabbed Dior perfume
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and makeup. They then went to the BP gas station at Augusta and Western, where defendant told
Cruz they would pump people’s gas, use the credit card, and then keep the money. Once there
defendant exited the car with the credit cards. Cruz saw him throw some of the robbery proceeds
into a garbage can at the gas station.
¶ 26 Cruz identified both herself and defendant in the BP gas station surveillance video. Cruz
indicated in the video where defendant instructed her to put in a zip code for the credit card.
They were unable to run the transaction so they left to pick up Kira Lundgren, defendant’s
pregnant girlfriend. Before Lundgren got into the van, defendant told Cruz not to say anything to
Lundgren about the robbery.
¶ 27 Cruz testified she, Lundgren, and defendant eventually left a second gas station and went
to the West side of Chicago. Defendant parked in an alley, left for an hour, and returned holding
some televisions. They dropped Lundgren off at home and then Cruz and defendant went to
Cruz’s house, where they dropped off all of the televisions. Defendant told Cruz if anybody
asked to say she got the purse from a “crack head.” Defendant gave Cruz a blackberry cell phone
from one of the purses.
¶ 28 Cruz testified two days later, on April 25, 2010, defendant gave her a “script” to say she
got the purse from a “crack head” and also told her to throw away the cell phone. The next day,
the police returned and placed her under arrest. Afterwards she gave the police consent to search
her van. Cruz identified People’s Exhibit 181, a compact disk of a series of five audio telephone
calls and identified defendant’s voice in all the calls.
¶ 29 Cruz testified that on July 9, 2013, she pled guilty to two counts of attempted first-degree
murder in this case in exchange for a 22-year sentence. Cruz had previously been diagnosed with
bipolar disorder and anxiety. She was diagnosed with bipolar disorder when she was 17 years
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old, but in April 2010 was not taking medication for it. She testified she self-medicated with
marijuana.
¶ 30 On cross-examination, Cruz testified she gave the police a different story than what she
testified to on the stand. Cruz admitted to telling the police a story defendant told her to say. This
story involved meeting a young black male named Jamaica. Jamaica indicated he wanted to sell
two purses. She told police she bought the purses for $80. She also told the police in a second
statement that when defendant came back to the van, she did not see him with the bat but just
saw him placing something up his sleeve.
¶ 31 She admitting having bipolar disorder, anxiety, and depression and to having these
mental illnesses for at least 10 years. Cruz admitted to never telling the police or the assistant
state’s attorneys taking her statement that she saw defendant throw items in the garbage can at
the BP gas station. She admitted to signing a nine-page handwritten statement from April 27,
2010, where she stated she did not see defendant with a bat.
¶ 32 On redirect examination, Cruz testified that when she went to the second gas station with
defendant and Lundgren, she was alone with Lundgren at one point. Cruz then told Lundgren
defendant had robbed some girls.
¶ 33 Chicago Police Detective Seamus Fergus testified that on April 25, 2010, he received an
assignment to investigate an incident on 1800 N. Damen. He learned of fraudulent credit card
charges at Comcast and of several transactions at a BP gas station at Augusta and Western. He
went to the gas station and reviewed surveillance footage from several cameras and was able to
go directly to 3:48 a.m. on April 23, 2010. He could see one male and one female; the male
subject walked back and forth to the gas station attendant and took a large item out of the van,
which looked like a jacket or shirt “filled with something.” Detective Fergus searched each of the
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nearby garbage cans, and then the main dumpster where he found a red binder, McShane’s Irish
passport, a certificate of eligibility issued to McShane, a black day-planner, and an H&M bag.
Later, Detective Fergus went to Lundgren’s house at 2715 W. Evergreen and took defendant into
custody. After defendant was in custody, Detective Fergus learned defendant had “Betto” tattoos
on his left arm and neck.
¶ 34 Kira Lundgren testified that in 2010 she lived at 2715 W. Evergreen, knew defendant for
about a year, was pregnant with his child, and called him “Betto.” Lundgren knew Marcy Cruz,
who she knew to be a friend of defendant. She also knew Cruz drove a van. Lundgren testified
that on April 22, 2010, she lent defendant her cellular phone. Later, in the early morning hours of
April 23, 2010, defendant woke up Lundgren, who got into Cruz’s van with defendant. Lundgren
noticed defendant seemed agitated. They stopped at a gas station and defendant got out of the
van and started talking to gas station customers. She testified defendant had a credit card in his
hand. They left the gas station and drove around but at some point the van broke down. She
testified they received a jump start from an African American man.
¶ 35 Lundgren testified that after the van started again she went home. Lundgren took her
cellular phone from defendant and left Cruz and defendant in the van. Later that day, she saw
defendant and Cruz at Cruz’s apartment, where Cruz showed her some “high end” concealer that
she “had come up on.” She noticed Cruz and defendant reading a newspaper. On April 26, 2010,
at around 11:30 p.m., she was at home with defendant, and they were going to leave when the
police came to her apartment to place defendant into custody. She consented to a search of her
apartment.
¶ 36 Lundgren testified she had previously had conversations with defendant over the
telephone and was familiar with his voice. Prior to testifying, Lundgren listened to People’s
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Exhibit 181, a CD with five audio phone calls, and recognized defendant’s voice all of the calls.
She also recognized her voice on one of the calls with the defendant. Lundgren testified that on
April 26, 2010, at around 11:30 p.m., she went to the police station and had a conversation with
the police and an Assistant State’s Attorney during which she relayed what she knew about what
happened on April 23, 2010.
¶ 37 Sergeant Steven Bouffard testified he is a sergeant with the Cook County Sheriff’s Office
and oversaw all operations of Securus, the inmate telephone system, inside the Cook County Jail.
All the call details of each outgoing telephone call are recorded as well as call details, including
the location within the jail where the call was made, the exact date and time of the call, the
telephone number that was dialed, and whether the inmate hung up or the called party terminated
the call. The maximum length for one phone call is 15 minutes and the system gives an
automated warning when there is one minute left on the call. There is also a prompt, warning the
called party that the call is subject to monitoring and recording. The prompt is repeated randomly
throughout the call, up to four times per call. On May 9, 2010, May 20, 2010, June 5, 2010 and
November 10, 2010, defendant was in custody at Cook County Jail and was housed in Division
9.
¶ 38 Sergeant Bouffard recognized People’s Exhibit 181 as a CD containing audio recordings
of five separate telephone calls recorded by the Securus system. Each call on the CD was a
shortened version of a longer call. People’s Exhibit 181 was published to the jury. The first call
was between a female voice and a male voice that Kira Lundgren had previously identified as
being her voice and defendant’s voice. Defendant asked Lundgren if she had heard anything
about “the girls” and Lundgren stated Jurich had been released from the hospital. In the second
call, the defendant explained he was not attempting to kill anybody. He stated his intention was
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to “get money and get high. Get money and help out Marcy.” In the third phone call, Lundgren
and Cruz identified defendant as the male voice on the call speaking to an unknown female.
Again, defendant reiterated his motivation was to get money to help Cruz. In the fourth call,
defendant opined that he needed Cruz to give another statement “saying something other than
what she said.” In the fifth phone call, Lundgren and Cruz identified one of the two men on the
line as the defendant. In this recording, defendant discussed the robbery and his use of the
baseball bat.
¶ 39 Defense counsel moved to strike Sergeant Bouffard’s testimony and the telephone calls,
arguing that the State failed to lay the proper foundation. Specifically, defense counsel claimed
Sergeant Bouffard identified defendant but did not see him making any calls. The prosecutor
argued Sergeant Bouffard testified as to the foundation of the keeping of the records of the calls
and Cruz and Lundgren had identified defendant’s voice on all of the calls. The trial court ruled
the authentication and the foundation for the telephone calls were sufficient.
¶ 40 Defense counsel then made a motion for a mistrial, based on the court’s prior ruling on
the jail calls, which the court denied. The people moved to enter into evidence People’s Exhibits
1 through 227, which were entered without objection. The State then rested. Defendant then
moved for a directed verdict, which the trial court denied.
¶ 41 The parties stipulated that Investigator M. Delacey from the Cook County State’s
Attorney’s Office would testify that on October 19, 2012, at around 1:00 p.m., he was present for
an interview with Marcy Cruz, along with ASAs Maher and Ogarek, where Cruz stated that
defendant told her “he robbed them” and that Cruz did not say that defendant told her to throw
away the Blackberry. Investigator Delacey would also testify he was present for an interview of
Marcy Cruz on October 19, 2012. At this interview, Cruz did not mention to Investigator
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Delacey that defendant told her he robbed “them” or that defendant told her to throw away the
Blackberry.
¶ 42 Detective Rolando Rodriguez testified that on April 27, 2010, he was present when
Marcy Cruz gave her handwritten statement to ASA Michelle Popielewski. Cruz made a few
corrections on her statement, including one in which Cruz corrected the statement that she did
not see defendant take the baseball bat from her van “when he ran from the van to rob the white
girls.”
¶ 43 On cross-examination, Detective Rodriguez testified he was present for an interview prior
to Cruz providing a handwritten statement whereby Cruz denied having any involvement in the
crime. During an interview 20 minutes later, Cruz stated defendant took her boyfriend’s bat from
the van and put it up his sleeve before getting out of the van.
¶ 44 Detective Robert Carillo testified that on April 25, 2010, he interviewed Jurich at Illinois
Masonic Hospital. When he interviewed her, she stated the offender had dark complexion and
the baseball bat was silver. On April 26, 2010, Detective Carillo went to a gas station near
Augusta and Western with Detective Fergus, reviewed videos and did not see anybody going to a
large dumpster on the lot. Detective Carillo testified he interviewed Jurich and she told him the
offender wore medium washed jeans. On cross-examination, Detective Carillo testified Jurich
told him she originally thought the offender was black but he may have been Hispanic.
¶ 45 After closing arguments, the jury deliberated for approximately three hours before
returning guilty verdicts. Specifically, the jury found defendant guilty of attempted first-degree
murder of Jurich and McShane; guilty of armed robbery of McShane and Jurich; guilty of
aggravated battery and aggravated battery causing permanent disability to both McShane and
Jurich. Defendant filed a pro se post-trial motion requesting a new trial, which was denied.
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¶ 46 At the sentencing hearing, the trial court sentenced defendant to 25 years imprisonment
for the attempted murder of Jurich and, consecutively, to 25 years for the attempted murder of
McShane. Further, the court sentenced defendant to 20 years for armed robbery of Jurich and,
consecutively, to the 20 years for the armed robbery of McShane. The armed robbery convictions
were to be served consecutively to the attempted murder convictions for a total of 90 years
imprisonment. Defendant filed a motion to reconsider his sentence, which was denied.
¶ 47 Defendant timely filed his notice of appeal.
¶ 48 ANALYSIS
¶ 49 Defendant raises three issues on appeal: (i) whether the State proved beyond a reasonable
doubt defendant had the intent to kill both McShane and Jurich; (ii) whether the trial court erred
in admitting into evidence the five phone calls made from Cook County Jail; and (iii) whether
the trial court erred in limiting the disclosure of co-defendant Cruz’s mental health records.
¶ 50 Defendant first challenges his two convictions for attempted murder of Jurich and
McShane. Defendant contends his convictions must be reversed because the state failed to prove
he had the specific intent to kill either victim. Defendant is challenging the sufficiency of the
evidence used to prove he had the intent to murder each victim.
¶ 51 In reviewing a case for the sufficiency of the evidence, “ ‘the relevant question 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.’ ”
(Emphasis omitted.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Reviewing courts “must allow all reasonable inferences from the
record in favor of the prosecution.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004).
Evidence may only be found to be insufficient under the Jackson standard “where the record
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evidence compels the conclusion that no reasonable person could accept it beyond a reasonable
doubt.” Id.¶ 52 To sustain a conviction for attempted murder, the State must establish beyond a
reasonable doubt: (1) defendant performed an act constituting a substantial step toward the
commission of murder, and (2) defendant possessed the criminal intent to kill the victim. People
v. Green. 322 Ill. App. 3d 747, 754 (2001). Because attempted murder is a specific intent
offense, it must be proven defendant had the specific intent to kill. People v. Hill, 276 Ill. App.
3d 683, 687 (1995). However, because the specific intent to take a life is a state of mind, it is
rarely proven through direct evidence. People v. Williams, 165 Ill. 2d 51, 64 (1995). “The
specific intent to kill may be inferred from the circumstances, such as the character of the assault
on the victim and the use of a deadly weapon.” People v. Jones, 184 Ill. App. 3d 412, 429
(1989). The trier of fact determines the existence of the requisite intent, and reviewing courts
will not disturb that finding unless it clearly appears there is reasonable doubt. People v.
Petermon, 2014 IL App (1st) 113536, ¶ 39.
¶ 53 In order to convict defendant of both counts of attempted first degree murder, the State
had to prove beyond a reasonable doubt that defendant struck both victims with the intent to kill
them. People v. Garrett, 216 Ill. App. 3d 348, 353 (1991). Additionally, evidence of specific
intent must be viewed separately with regard to each victim. People v. Velasco, 184 Ill. App. 3d
618, 634 (1989). Accordingly, the robber’s intent to kill both victims must be established
independently of each other. Id.¶ 54 In arguing this court should reverse his conviction for attempted murder of both victims,
defendant relies on People v. Thomas, 127 Ill. App. 2d 444 (1970), People v. Jones, 184 Ill. App.
3d 412 (1989), and People v. Garrett, 216 Ill. App. 3d 348 (1991).
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¶ 55 In People v. Thomas, the defendant was found guilty of attempted murder after it was
established at trial that, during a 45-minute attack, he used a knife to inflict multiple wounds,
beat the victim’s head against a chest of drawers, then raped and robbed her. 127 Ill. App. 2d at
446-48. On appeal, this court reversed, finding, given the prolonged nature of the attack, “the
opportunity for murder was such that there was insufficient proof that defendant intended or
attempted to commit that crime.” Id. at 456.
¶ 56 In Jones, the defendants were convicted of the attempted murder of Mr. L and Mrs. L.
Jones, 184 Ill. App. 3d at 429. On appeal, defendants challenged the attempted murder finding as
it related to Mr. L, but not Mrs. L. Id. at 430-31. In reviewing the evidence presented at trial, this
court noted Mr. L was hit in the head with a gun several times, kicked repeatedly, and at least
one defendant stomped on his head several times. Id. at 430. The defendants also threatened to
kill Mr. L and his family. Id. In reversing the attempted murder convictions, the court pointed out
that although the defendants had a knife and gun, they did not use the knife against Mr. L and
only used the gun to beat him. Id. The court noted that while the attack left Mr. L with serious
injuries, no evidence was presented they were life-threatening. Id. Moreover, he was treated as
an outpatient while at the hospital. Id. This court concluded that, based on these facts, no rational
trier of fact could have found the defendants intended to kill Mr. L. Id. at 430-31.
¶ 57 In People v. Garrett, a jury found defendant guilty of attempted murder of E.S. Garrett,
216 Ill. App. 3d at 352-53. In reviewing the details of the attack, the court noted that, like the
defendants in Jones, Garrett was armed with a weapon (a switchblade) but did not use it. Id. at
354. The court found that while the victim suffered lacerations and other serious injuries, he was
treated in the emergency room as an outpatient. Id. The doctor noted the injuries could have been
life threatening, but the hospital released E.S. only four hours after arrival without ever admitting
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No. 1-14-2085
him. Id.. This court concluded “[j]ust as it was in Jones, the character of the attack on E.S. was
not of the type that justifies an inference of an intent to kill.” Id.
¶ 58 In arguing the trier of fact could conclude the defendant intended to kill Jurich and
McShane, the State relies on People v. Scott, 271 Ill. App. 3d 307 (1994), and People v. Rolfe,
353 Ill. App. 3d 1005 (2004). In Scott, the defendant methodically beat the victim with his bare
hands. Scott, 271 Ill. App. 3d at 309. The victim spent 22 days in the hospital, needed surgery to
repair lacerations on her face, and was unable to walk without assistance for four months. Id. at
310. Important for this court’s consideration, the victim’s injuries were not life-threatening. Id.
The Scott court rejected defendant’s reliance on Garrett, Jones, and Thomas. Id. at 311. The
court pointed out that in those cases the “defendant possessed a gun or a knife at the time of the
crime but did not use it.” Id. This court then concluded a rational jury could find an intent to kill
based on the extreme and severe trauma inflicted upon the victim, coupled with defendant’s size
and strength. Id. at 312.
¶ 59 In Rolfe, the defendant was found guilty of attempted murder of his estranged wife. 353
Ill. App. 3d at 1006-07. Defendant beat his estranged wife, resulting in severe injuries to her
head. Id. The injuries included a depressed skull fracture so severe the bone fragments pressed
into her brain, allowing air to enter. Id. This required extensive surgery to correct, and the victim
developed balance problems, expressive aphasia, pain, and increased fatigue. Id. She also had the
potential to develop seizures due to her brain injury. Id. Based on the shocking injuries and the
ferocity of the attack, the Rolfe court concluded a trier of fact could find the defendant intended
to kill and thus affirmed the attempted murder conviction. Id. at 1013.
¶ 60 A review of other relevant case law also supports the State’s position. In People v.
Maxwell, the defendant used a wooden chair leg, which this court described as being “less
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suitable for causing deadly injury than such possible alternates as a baseball bat or a length of
pipe.” 130 Ill. App. 3d 212, 216 (1985). In affirming the attempted murder conviction, the court
stated, “[c]ertainly, a solid length of wood when used as a bludgeon and swung against the head
both violently and repeatedly is manifestly an implement capable of taking human life.” Id.¶ 61 In People v. White, the defendant used a baseball bat to strike the victim in the back of
the head and then again in the face near the right eye causing the victims death. 140 Ill. App. 3d
42, 51 (1986). This court found, “[t]he manner in which the bat was used in this case made it a
deadly weapon capable of taking human life.” Id. at 50.
¶ 62 The facts of this case are sufficient to permit the jury to conclude the defendant intended
to kill Jurich and McShane. Defendant approached the victims from behind as they walked down
Damen Avenue in the middle of the night. With no warning, he delivered a violent hit to the back
of Jurich’s head. It opened a large laceration on her head causing a great deal of bleeding. She
struggled with the defendant holding on to her purse. He then struck Jurich in the neck, taking
her purse. The emergency room physician later opined that Jurich suffered a severe traumatic
brain injury. This traumatic brain injury caused seizures in the hospital, and she has yet to regain
her peripheral vision or the ability to balance properly. Currently, Jurich suffers with severe
migraine headaches as painful as the night she was attacked.
¶ 63 The attack on McShane was even more brutal and violent than the one on Jurich. After
being struck, Jurich turned to see McShane being violently struck in the side of the head with the
baseball bat. Again, there is no indication McShane could have known she was about to be
attacked. Jurich testified McShane fell immediately and looked lifeless. The emergency room
doctor testified McShane’s condition was much worse than Jurich upon arrival. McShane’s
condition was dire enough that a breathing tube was inserted in order to secure her airway. The
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No. 1-14-2085
doctor testified that the medical staff was concerned about a rapid deterioration in McShane’s
neurological status and brain function. After securing her breathing, they determined she had
sustained a skull fracture, hemorrhagic contusions, a subarachnoid hemorrhage, and a subdural
hematoma. Dr. Kranzler, an expert in neurosurgery who treated McShane, testified McShane’s
brain progressed to a point where her pupils dilated, an indication efforts implemented to control
the swelling were failing. Dr. Kranzler performed brain surgery. The surgery involved removing
a large portion of McShane’s skull and the tip of the temporal lobe of her brain. During the
surgery, McShane suffered a stroke. The doctor testified that if the surgery had not been
performed, McShane would have died.
¶ 64 The circumstantial evidence in this case is similar to the evidence in Scott, Rolfe, White,
and Maxwell and permits a trier of fact to conclude the defendant intended to kill Jurich and
McShane.
¶ 65 This result is supported by two significant factual differences when compared to Jones
and Garrett. First, in both Jones and Garrett, the court recognized that the victims suffered
serious injuries that were not life threatening and the victims were discharged hours after arriving
for treatment. Jones, 184 Ill. App. 3d at 430; Garrett, 216 Ill. App. 3d at 354. Second, in both
cases the court recognized a deadly weapon was present during the commission of the offense,
but was not utilized in a deadly fashion. In Jones, the defendant had a knife and gun, but did not
use the knife and only used the gun as a bludgeon. Jones, 184 Ill. App. 3d at 430. In Garrett, the
defendant was armed with a switchblade and threatened the victim with it but did not use it
during the attack. Garrett, 216 Ill. App. 3d at 354.
¶ 66 Based on the nature of the attack and the significance of the injuries inflicted, a trier of
fact could conclude the defendant intended to kill the Jurich and McShane. The viciousness of
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No. 1-14-2085
the attack and the seriousness of the injuries inflicted place this case closer to the facts found in
Scott, 271 Ill. App. 3d at 310, and Rolfe, 271 Ill. App. 3d at 1007; than Jones, 184 Ill. App. 3d at
430, and Garrett, 216 Ill. App. 3d at 354. Accordingly, we affirm both attempted murder
convictions.
¶ 67 Next, the defendant contends that the State failed to lay the proper foundation for the
admission of the five audio recordings of defendant’s jail telephone calls. The admissibility of
evidence is within the sound discretion of the trial court and will not be disturbed absent a clear
abuse of discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010). An abuse of discretion occurs
only when the trial court’s ruling is arbitrary or fanciful or where no reasonable person would
adopt the trial court’s view. People v. Illgen, 145 Ill. 2d 353, 364 (1991).
¶ 68 Relevant and material audio recordings are admissible “if a proper foundation has been
laid to assure the authenticity and reliability of the recording.” People v. Aliwoli, 238 Ill. App. 3d
602, 623 (1992). A sufficient foundation is laid when “a participant to the conversation or a
person who heard the conversation while it was taking place identifies the voices of the people in
the conversation and testifies that the tape accurately portrays the conversation.” In re C.H., 398
Ill. App. 3d 603, 607 (2010).
¶ 69 In cases where there is no witness with personal knowledge of what the recording
portrays, a sufficient foundation may be laid under the silent witness theory. Under this theory, a
recording may be admitted without the testimony of a witness with personal knowledge of what
the recording portrays as long as there is sufficient proof of the reliability of the process that
produced the recording. People v. Vaden, 336 Ill. App. 3d 893, 898 (2003). Generally, this is
shown if the recording’s proponent presents “evidence as to (1) capability of the device for
recording; (2) competency of the operator; (3) proper operation of the device; (4) preservation of
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No. 1-14-2085
the recording with no changes, additions, or deletions; and (5) identification of the speakers.”
People v. Smith, 321 Ill. App. 3d 669, 675 (2001); Vaden, 336 Ill. App. 3d at 899.
¶ 70 Upon review of the facts and the relevant case law, we reject the defendant’s argument
and find the trial court did not abuse its discretion when it admitted the five audio recordings into
evidence. At trial, both Kira Lundgren and Marcy Cruz identified defendant’s voice on all of the
calls. Additionally, Lundgren identified herself as the female voice and defendant as the male
voice in one of the phone calls. The trial court also heard testimony from Sergeant Steven
Bouffard from the Cook County Sheriff’s Office. He testified that for the past six years he has
overseen the inmate phone system inside the Cook County Jail where defendant was held. He
testified the jail has in place a system, known as Securus, which records all outgoing inmate
phone calls. These calls are all stored at a data center in Atlanta, Georgia. Sergeant Bouffard
testified he had received training as both an end user and as an administrator. He further
explained that, along with the content of the calls, the system captures where the call was made
from within the jail; the exact date and time of the telephone call, both when it was placed and
when it ended; the telephone number that was dialed; and how the call terminated. He informed
the court he accesses the recordings through a web portal called the secure web platform.
¶ 71 In arguing the court erred in admitting the recordings under the silent witness theory, the
defendant argues Sergeant Bouffard did not testify whether the recording device was operating
correctly at the time of the call. While it is true Sergeant Bouffard did not testify specifically that
the Securus system was operating correctly, the fact the audio recording exists at all
demonstrates the system was acting correctly. People v. Taylor, 2011 IL 110067, ¶ 39 (“While
the camera may not have worked perfectly it clearly worked. As one court has stated, “ ‘[t]he
fact that the tape[ ] exist[s] at all is evidence that the tape recorder was functional and that [the
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No. 1-14-2085
operator] knew how to operate it.’ ”) (quoting Willett v. Russell M. Stookey, P.C., 568 S.E.2d
520, 526 (Ga. Ct. App. 2002)).
¶ 72 Defendant’s reliance on People v. Sangster, 2014 IL App (1st) 113457, is misplaced. In
Sangster, the department of corrections employee testified that the only way to activate the
phone system was having the caller enter his PIN and say his or her name. Id. ¶ 50. This
defendant contends it was this feature of entering a PIN and saying his or her name that
demonstrated the jail telephone recording system was enabled and working, thus satisfying one
of the foundational requirements. However, it does not appear this factored into the court’s
analysis when it determined the trial court did not err.
¶ 73 The defendant in Sangster, like the defendant before this court, raised the issue
concerning the proper operation of the recording device. Id. ¶ 49. While the court did review the
testimony of the jail operator, it rejected the defendant’s contention because he failed to put forth
any evidence demonstrating the calls were anything but authentic. The Sangster court stated,
“[w]e note that neither at trial nor before us did Sangster make a colorable claim that the
recording was other than authentic or accurate. [Citation.] Where a defendant does not present
any actual evidence of tampering, substitution, or contamination, the State need only establish a
probability that those things did not occur.” Id. ¶ 51. The same reasoning applies here.
¶ 74 The defendant in this case, like the defendant in Sangster, does not present any evidence
of tampering, substitution, or contamination. Sergeant Bouffard testified the original audio was
recorded and stored at the data warehouse and he had listened to the entirety of all five
recordings. He further stated the five recordings on the compact disc in court were accurate
versions of the longer phone calls. Based on this testimony and the lack of any evidence to the
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No. 1-14-2085
contrary, the State adequately established the system worked properly and no tampering
occurred.
¶ 75 Furthermore, the identification by Lundgren and Cruz and the discussions taking place on
the calls were sufficient to identify defendant as a party to each phone conversation. In the first
phone call, defendant can be heard asking about the victims’ medical condition. In the second
call, defendant can be heard discussing McShane’s condition along with the charges against him.
He also brings up Marcy Cruz. In the third call, the victims’ conditions are again discussed and
Cruz is again mentioned. In the fourth call, defendant can again be heard talking about Cruz and
statements she may have already given. In the fifth call, defendant can be heard discussing the
details of the crime itself, including the use of the bat.
¶ 76 Based on the evidence presented, the trial court’s admission of the phone calls under the
silent witness theory was not an abuse of discretion. Additionally, finding no error in the trial
court’s admission of the recordings under the silent witness theory, we decline to address the
State’s alternative argument the records are admissible under the business records exception. 725
ILCS 5/115-5(a) (West 2012).
¶ 77 Finally, defendant challenges the trial court’s decision to limit the disclosure of Cruz’s
mental health records. Prior to trial, the defense moved to produce all of Cruz’s mental health
records. It had become known to the defense that Cruz was taking psychotropic drugs and had
recently been evaluated by Forensic Clinical Services. Prior to trial, the trial court conducted an
in camera review of all of Cruz’s mental health records. The court determined several records
were discoverable, including her admission to Cermak Hospital following her arrest on April 29,
2010; records from Forensic Clinical Services; and records from Norwegian American Hospital
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No. 1-14-2085
from August 2008. The court refused to tender other mental health records, all of which were
dated from 2002-2008.
¶ 78 On appeal, defendant contends he was entitled to all of Cruz’s mental health records in
order to adequately test her credibility. The State responds that the defendant has failed to
include any of the mental health records (even those tendered) in the record before this court, and
has therefore forfeited review of the issue. We agree with the State.
¶ 79 It is well established under Illinois law “evidence of a witness’ mental condition is
admissible to the extent it bears upon the credibility of the witness’ testimony.” People v.
Votava, 223 Ill. App. 3d 58, 74 (1991) (citing People v. Monk, 174 Ill. App. 3d 528 (1988)).
“Whether such confidential material is discoverable and subject to disclosure *** rests with the
circuit court.” Id. at 74-75. The trial court’s decision is reviewed under an abuse of discretion
analysis. People v. Bean, 137 Ill. 2d 65, 102 (1990).
¶ 80 This court has stated that “[t]he appellant carries the burden of presenting a complete
record on appeal [citation] and any doubts arising from an incomplete record will be construed
against the defendant.” People v. Smith, 406 Ill. App. 3d 879, 886 (2010). The defendant replies
that the reason the mental health records are not part of the appellate record is because they were
never given to him. This argument is unpersuasive because Illinois supreme court rule 415(f)
provides a procedure for allowing documents reviewed in camera to be a part of the appellate
record. Ill. S. Ct. R. 415(f) (eff. Oct. 1, 1971). Rule 415(f) provides:
(f) In Camera Proceedings. Upon request of any person, the court may
permit any showing of cause for denial or regulation of disclosures, or portion of
such showing, to be made in camera. A record shall be made of such proceedings.
If the court enters an order granting relief following a showing in camera, the
entire record of such showing shall be sealed, impounded, and preserved in the
records of the court, to be made available to the reviewing court in the event of an
appeal. Id.- 25 ­
No. 1-14-2085
A defendant need only file a motion pursuant to Rule 415(f) before the trial court in order to
ensure the documents which were reviewed in camera are available to the appellate court. See
People v. Deleon, 227 Ill. 2d 322, 342 (2008) (finding that the burden is on the appellant to
comply with Rule 415(f) and ensure the documents reviewed in camera by the trial court are
made apart of the appellate record.); see also Bean, 137 Ill. 2d at 102 (“We have reviewed all of
[the witness]’s mental health records and cannot say that the trial court abused its discretion
***.”).
¶ 81 In Deleon, the defendant asked the appellate court to review his Corrections file for
mitigation evidence. 227 Ill. 2d at 340. The appellate court decline defendant’s request. Id. at
341. On review to the supreme court, it concluded a defendant has the responsibility to ensure
compliance with Rule 415(f). Id. at 342 (citing People v. Coates, 109 Ill. 2d 431, 438 (1985)).
“[A]bsent a request for such compliance, any deficiency in the record will be attributable to that
party.” Deleon, 227 Ill. 2d at 342. Here, as in Deleon, it was the defendant’s responsibility to
ensure a complete record and his failure to provide the mental health records as part of appellate
record prevents us from reviewing the issue. Deleon, 227 Ill. 2d at 341-42.
¶ 82 Even if we did not find the issue forfeited, a review of the record that is before this court
shows no abuse of discretion. After receiving all of the mental health records, the trial court
conducted an in camera review in the presence of a court reporter. The trial court proceeded to
identify each record it was viewing, detailing the nature of the record and the reason it was or
was not being tendered to the defendant. The court found many of the older records contained
irrelevant information. Further, the court concluded relevant material in the older records was
contained in the disclosed material. In arguing for reversal, defendant does not point out any
specific hospital record the trial court discussed, but did not disclose, and instead merely asserts
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No. 1-14-2085
that he should have been given the entirety of her mental health file. This is insufficient to
demonstrate an abuse of discretion. The trial courts statements on the record indicate the vast
majority of the records concerned depression, anxiety, and an eating disorder, none of which
would be relevant to testing Cruz’s credibility. Accordingly, even if we did not find the issue
forfeited, we conclude based on the limited record before us, that the trial court did not abuse its
discretion in its handling of Cruz’s mental health records.
¶ 83 CONCLUSION
¶ 84 For the reasons stated above, we affirm defendant’s conviction.
¶ 85 Affirmed.
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2017 IL App (1st) 142085No. 1-14-2085
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT, FIRST DIVISION
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 10 CR 9341
)
HERIBERTO VIRAMONTES, ) Honorable
) Jorge Luis Alonso,
Defendant-Appellant. ) Judge Presiding.
Opinion Filed: January 9, 2017
Justice: Honorable Sheldon A. Harris, J.
Honorable John B. Simon, J. and
Honorable Mary L. Mikva, J.,
Concur
Attorney Michael J. Pelletier, State Appellate Defender, Office of the State
for Appellate Defender, 203 North LaSalle Street, 24th Floor, Chicago, IL
Appellant 60601, (Patricia Mysza and Melinda Grace Palacio, of counsel),
- Heriberto Viramontes.
Attorney Kimberly M. Foxx, State’s Attorney, County of Cook, Room 309,
for Richard J. Daley Center, Chicago, IL 60602, (Alan J. Spellberg,
Appellee Matthew Connors and Iris G. Ferosie, of counsel),
- The People of the State of Illinois.