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People v. Villagomez, No. 1-97-3936

1st District, May 26, 2000

FIFTH DIVISION

Modified Opinion Upon Denial of Rehearing

JUSTICE QUINN delivered the opinion of the court:

Following a jury trial, defendant Marcos Villagomez was convicted of first degree murder and sentenced to 30 years'imprisonment. On appeal, defendant contends that: (1) the trial court erred in denying his motion for a continuance tosecure the presence of witnesses; (2) the trial court erred in refusing to allow defense counsel to ask prospective jurorsduring voir dire whether they would follow the law of self-defense; (3) the trial court erred in denying defendant's motion tosuppress his statements because he only spoke Spanish and did not knowingly and voluntarily waive his Miranda rights andhis confession should have been excluded as hearsay; (4) the State made improper comments during closing argument thatshifted the burden of proof to defendant; (5) the trial court improperly allowed the jury to view gruesome photographsduring their deliberations; (6) defendant should receive a new sentencing hearing or, in the alternative, a reduction in hissentence because the presentence investigation report prepared prior to sentencing was inadequate; and (7) the sentencingcourt erred in denying defendant day-for-day good time credit pursuant to section 3-6-3 of the Unified Code of Corrections.(730 ILCS 5/3-6-3 (West 1996)). Defendant also filed a supplemental brief in which he contended that he was not advisedof his right to assistance of his country's consul in violation of article 36(1) of the Vienna Convention on ConsularRelations. Vienna Convention Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 595 U.N.T.S. 261 (hereinafterVienna Convention or Convention). The issues relating to the admission of defendant's statement and what implicationsarise from a violation of the Vienna Convention will be considered in this opinion; all other issues will be determined in aseparate Supreme Court Rule 23 order disseminated contemporaneously. For the reasons that follow, we affirm as modified.

Defendant's conviction arose from the fatal stabbing of Socorro Villa on May 19, 1996. Prior to trial, defendant filed amotion to suppress his statements pursuant to section 114-11 of the Code of Criminal Procedure of 1963. 725 ILCS 5/114-11 (West 1996).

At the hearing on the motion to suppress, Officer Freddie De Leon testified that on May 22, 1996, at the corner of 1800South Throop Street in Chicago, he arrested defendant and advised him of his Miranda rights in Spanish. DeLeon testifiedthat defendant indicated that he understood those rights. After DeLeon brought defendant to the police station forquestioning, defendant admitted to DeLeon that he stabbed the victim. DeLeon then placed defendant in an interview room.DeLeon testified that he did not hear any screaming or loud noise coming from the interview room while defendant wasthere.

Detective Fernando Montilla testified that he and Detective Anthony Carothers questioned defendant in the interview roomat approximately 4:45 p.m. on May 22, 1996. Montilla testified that he informed defendant that he spoke Spanish andproceeded to speak to him in that language. Montilla is of Puerto Rican descent. Montilla advised defendant of his Mirandarights in Spanish and defendant indicated that he understood. Montilla questioned defendant about the murder forapproximately 20 minutes, and after this first round of questioning, Montilla made sure that defendant was fed and that hehad water. Defendant was also given cigarettes and the option to sleep on a long bench or in chairs that Montilla broughtinto the interview room.

At approximately 10 p.m., an assistant State's Attorney arrived at the police station. The assistant State's Attorney theninterviewed defendant with Montilla acting as interpreter. Montilla testified that he informed defendant that the assistantState's Attorney was employed by the State's Attorney office and that she was not his lawyer. Montilla testified that henever told defendant that he had to answer the assistant State's Attorney's questions. Defendant indicated that heunderstood. Defendant then agreed to speak with the assistant State's Attorney with Montilla acting as an interpreter.

Montilla testified that he accurately translated the conversation, including additional Miranda warnings. When the assistantState's Attorney asked defendant how he was treated by the police, defendant stated that he had been treated fairly.Defendant then agreed to put the statement in writing. As the assistant State's Attorney wrote defendant's statement,Montilla translated the statement from Spanish to English. After the statement was written, Montilla translated eachsentence from English to Spanish and asked defendant if each sentence was correct. Defendant said yes and then Montillatold the assistant State's Attorney that it was correct. Once the corrections were made, defendant placed his initials at thebottom of each page of the statement.

On cross-examination, Montilla testified that defendant's version of the events differed from the version Montilla receivedfrom the two witnesses, Rafael Villa and Beto Renteria, and he confronted defendant with this fact. Montilla also testifiedthat he specifically explained to defendant how his statement could be used against him. Montilla testified that becausedefendant is from Mexico, he wanted to ensure that defendant understood his rights.

Defendant testified that he had lived in the United States since 1977 and that when he gave Montilla his version of theevents, Montilla accused him of lying. Defendant said that Montilla's behavior toward him was proper during the initialinterrogation, but during the second interrogation, Montilla yelled at him. The third time they spoke, Montilla said that ifdefendant did not tell him the truth, he was going to "sit me in the electric chair or put me in jail for life." Defendanttestified that he was frightened and panicked.

Defendant further testified that Montilla told him the following regarding the assistant State's Attorney: that she was hisattorney; that she was from the State; and that defendant had to answer all of her questions. Defendant also thought that shewas the attorney that had been assigned to him. Defendant testified that he also thought she was representing him becauseMontilla said that if he could not afford an attorney the State would provide him with one. Defendant also testified that hedid not understand the handwritten statement and that he signed the written statement before it was even read to him.

On cross-examination, defendant testified that Montilla did not translate the assistant State's Attorney's reading of theconstitutional rights at that time. After the assistant State's Attorney began to speak, Montilla told defendant to tell her howthe fight between defendant and the victim began. Defendant testified that the assistant State's Attorney just began to writeand only asked defendant a question occasionally. Defendant denied that he told Montilla that he was giving the statementfreely and voluntarily. Defendant also denied that he spoke to the arresting officers.

In rebuttal, the assistant State's Attorney who interviewed defendant testified that Montilla acted as an interpreter during herinterview with defendant. She testified that she told defendant in English that she was an assistant State's Attorney, aprosecutor, and not his lawyer. Montilla then turned to defendant and spoke to him in Spanish while defendant nodded. Theassistant State's Attorney testified that she read defendant's Miranda rights to him and, after each right, Montilla spoke todefendant in Spanish. After each Miranda right, defendant indicated that he understood either by nodding or saying, "Si."With Montilla translating in Spanish, the assistant State's Attorney asked defendant if he wanted to talk to her. Defendantagreed to speak with her about the murder.

Defendant then agreed to give a written statement. The assistant State's Attorney testified that she wrote the statement,stopping after every few lines to make corrections. She read the statement, pausing after each sentence or phrase for thetranslation and corrections defendant gave to Montilla in Spanish, which Montilla then translated into English. The assistantState's Attorney testified that the only errors were typographical errors. She further testified that defendant did not sign apage before it was read and translated by Montilla.

At the conclusion of argument on defendant's motion, the trial court denied defendant's motion to suppress the statementsand found that the statements were made freely and voluntarily, that defendant was not intimidated by Montilla and thatdefendant's waiver of his Miranda rights was knowing and intelligent.

At trial, Rafael Villa, the victim's brother, testified that he and defendant had been friends for over 20 years and had lived inan apartment together at 1352 North Bosworth Avenue in Chicago, until March 1996. Defendant kept his keys to theapartment and returned to visit frequently. On May 18, 1996, at approximately 2 p.m., Villa found defendant in theapartment with a woman, later identified as Alejandrina Gutierrez, and a child. Villa testified that defendant told him thatGutierrez was selling gold. Villa told defendant that he wanted the woman to leave. Villa testified that defendant "seemed alittle upset" because he grabbed a knife used for cutting vegetables from the table, placed it in his back pocket and left theapartment with the woman and child. Before defendant left, Villa told him to leave his keys to the apartment. Defendantrefused to leave the keys. Villa told his brother, Socorro Villa, what happened between him and defendant.

On May 19, 1996, Villa, Socorro Villa, Jose-Luis Gallegos and Beto Renteria were in the apartment watching television.Villa testified that he went to sleep about 11 a.m. Later, Renteria woke Villa up and he saw defendant covered in blood witha knife in his hand. Villa then saw his brother collapse. Socorro Villa died minutes later.

On cross-examination, Villa testified that, to his knowledge, there was no animosity between defendant and his brother.Villa was asked on cross-examination whether he told an investigator on July 3, 1996, that after defendant took the knifefrom the table, he said that he would return it the following day. Villa admitted that defendant said this. Villa also denieddrinking prior to his brother's murder and further testified that, when he went to sleep, defendant was not in the apartment.

Dr. Thamrong Chira, a medical examiner in the Cook County medical examiner's office, testified that he performed theautopsy on the victim. Dr. Chira testified that he observed multiple (approximately 16) stab and incise wounds throughoutthe body including the head and neck area, chest, abdomen, back and upper extremities. Dr. Chira explained that incisewounds commonly occur from a slashing motion and stab wounds are caused by a thrust directly into the body. Dr. Chiratestified that the wounds on the hands and arms were consistent with defense wounds, although it was possible that thesewounds were also consistent with a person attacking an individual and that individual stabbing the person who was doingthe attacking. Dr. Chira testified that, in his opinion, the victim's death was caused by multiple stab and incised wounds. Beto Renteria testified that he arrived at the apartment at approximately 11 a.m. on May 19, 1996, and found Socorro Villa,Rafael Villa, and Jose-Luis Gallegos in the apartment. Renteria testified that he drank six to eight beers and ate whilewatching television. Renteria then fell asleep at the kitchen table while Socorro Villa went to the bedroom to watchtelevision. Renteria was awakened by the arrival of defendant. Defendant told Renteria to shut his mouth as defendantwalked into the living room. Renteria heard Socorro Villa ask defendant for the knife he took from the apartment the daybefore. Defendant said, "I'm going to leave it to you like this you son of a bitch." Renteria then saw defendant make athrusting motion with his right hand above the shoulder toward Socorro. Renteria testified that he did not hear Villa calldefendant a "pendejo" or any other name. Defendant stabbed Socorro numerous times with a big knife. Socorro pleaded,"Don't hit me anymore, you already killed me." Once Socorro was on the floor, Renteria tried to grab the knife fromdefendant, but he told Renteria that he would kill him too. On cross-examination, Renteria stated that he did not see whetherSocorro struck defendant before he stabbed him.

Detective Montilla testified about his interview with defendant on May 22, 1996. After defendant waived his Mirandarights, he told Montilla that he took the knife from the table during a visit to the apartment on May 18, 1996. Defendant saidthat when he returned to the apartment on May 19, 1996, Villa was asleep in a small room, Renteria was sitting at thekitchen table, and Socorro was in another room. Defendant told Montilla that he entered the room and when he attempted toreturn the knife he had taken the day before, Socorro yelled at him and called him a "pendejo." Montilla testified thatdefendant told him he took the knife from the left side of his pants and stabbed Socorro two or three times. Socorro thenentered the kitchen and defendant stabbed him again. Montilla testified that defendant told him that Socorro grabbed hishair to push him away, which caused defendant to stab him again. Defendant then saw Rafael Villa in the back of theapartment and ran out of the front door. Defendant told Montilla that he dropped the knife near the stairs outside thebuilding and walked to 18th Street, where he threw his clothes into a Dumpster.

Montilla also testified about defendant's interview with the assistant State's Attorney. Montilla testified that he translatedeach Miranda right into Spanish as the assistant State's Aattorney read them in English. Defendant indicated that heunderstood and agreed to talk with the assistant State's Attorney. Montilla translated each of the assistant State's Attorney'squestions as she asked them and each of defendant's responses as he gave them. Montilla testified that he had no difficultytranslating.

Defendant gave the same statement to the assistant State's Attorney that he gave to Montilla earlier. As the assistant State'sAttorney wrote defendant's statement, Montilla translated for defendant. Defendant then listened and agreed that thestatement was accurate when Montilla translated the entire statement to him.

On cross-examination, Montilla admitted that he was incorrect when he stated in his direct testimony that defendant neversaid that Socorro attacked him first. Montilla's notes indicated that defendant said that he was drinking and watching soccerwith Jose-Luis Gallegos, Rafael Villa, and Beto Renteria when Socorro came home and told defendant to leave. Socorrograbbed defendant's hair, pushed him into the wall, and choked him. Defendant stated that, in self-defense, he took the knifefrom the table and stabbed Socorro. Montilla testified that he was unsure whether he told the assistant State's Attorney thatdefendant said Socorro attacked him.

The assistant State's Attorney's testimony was very similar to her testimony at the hearing on defendant's motion tosuppress.

As the assistant State's Attorney began to testify regarding what she learned from her conversation with defendant, defensecounsel objected to this line of questioning on the grounds of double hearsay. Defense counsel argued that the assistantState's Attorney did not receive the information as defendant said it, but as Montilla translated it. The trial court found thatthe testimony from the assistant State's Attorney had sufficient indicia of reliability and allowed her to testify.

The assistant State's Attorney then published defendant's written statement for the jury. The written statement indicated thatdefendant waived his Miranda rights. Defendant's statement revealed that he came to the United States from Mexico 18years before and that he lived with Rafael Villa, Jose Luis-Gallegos and Beto Renteria in a basement apartment at 1352North Bosworth Avenue for the past year. Defendant stated that when he moved out of the apartment at the end of April1996, Socorro Villa moved in. On May 18, 1996, defendant went to the apartment to pick up some of his personal property.Rafael Villa asked defendant to return his set of keys to the apartment, but defendant told him that he left them at his wife'shouse. Defendant then took a knife with a black handle to replace the knives he had lost, placed it in his waistband and leftthe apartment.

On May 19, 1996, defendant returned to the apartment. Defendant stated that he intended to return the knife. Socorro askeddefendant about the knife and told defendant not to be a "pendejo." Defendant stated that he became angry after this andtook the knife from his waistband and stabbed Socorro. Socorro was not holding a knife or any other weapon. Defendant'sstatement to the assistant State's Attorney did not indicate that Socorro attacked defendant physically. Socorro attempted toflee from defendant. Defendant continued cutting him. Socorro grabbed defendant's hair and tried to push him away.Defendant stated that he continued to cut Socorro with the knife several more times. Defendant's statement indicated that hecontinued to stab Socorro because "he was mistreating me by calling me names like pendejo and it's offensive." Defendantattempted to leave through the back door, but he saw Rafael Villa and left through the front door instead. Defendant statedthat he threw the knife on the ground, threw his bloodstained clothes in a Dumpster at 18th and Throop Streets and hid forthree days because of the crime he committed. The statement included a paragraph which explained that he had been treatedwell by the police and the assistant State's Attorney.

The statement also indicated that defendant was unable to read, write or speak English and that he agreed to have thestatement read to him by the assistant State's Attorney with Montilla translating. Defendant indicated that the statement wasa true and accurate account of his statement and that he was allowed to make corrections.

After the State rested, defendant testified that on May 18, 1996, he had gone to the apartment with Gutierrez and her childto buy some gold jewelry. Villa told defendant that Gutierrez had to leave as he did not want prostitutes in his home.Gutierrez then left. Defendant told Rafael Villa that he was going to take the knife as payment for the knives that Villa hadlost. Defendant then returned to the apartment the following day to return the knife. Defendant was in the kitchen whenSocorro walked in and asked defendant about the knife. Defendant told Socorro that he came back to return it. Defendanttestified that Socorro told defendant that he was going to kill him and slapped defendant in the face and grabbed his hair.Defendant further testified that Socorro grabbed defendant's neck and pushed his head against the wall twice. Socorro thenkicked defendant in the stomach and twice on the shin and again told defendant that he was going to kill him. Defendantthen hit Socorro with the knife. Defendant testified that Socorro had his hands around defendant's neck the entire time.Defendant denied that Socorro put his hand up to block the stabbing and defendant could not explain how Socorro receivedthe wounds on his hand. After Socorro walked away from defendant, defendant left the apartment. Defendant then threw theknife in a hole under a staircase outside the building.

The jury was instructed on first degree murder, self-defense and second degree murder. Following jury deliberations,defendant was found guilty of first degree murder. Following the sentencing hearing, defendant was sentenced to 30 yearimprisonment.

On appeal, defendant contends that the testimony of Detective Montilla was not credible and that the statements attributedto defendant should have been suppressed and excluded from evidence as hearsay. We first address the applicable standardof review. The Supreme Court has held that when an appellate court reviews rulings on a motion to suppress involvingquestions of probable cause, they are reviewed de novo. Ornelas v. United States, 517 U.S. 690, 134 L.Ed 2d 911, 116 S.Ct.1657 (1996). However, the trial court's resolution of disputed factual issues is entitled to deference on review and will notbe disturbed unless manifestly erroneous. People v. Perez, 288 Ill. App. 3d 1037, 1043, 681 N.E.2d 137 (1997).

In a very recent case involving a motion to suppress a defendant's confession, our supreme court again analyzed theapplicability of Ornelas. They held that reviewing courts are to accord great deference to the trial court's factual findings,reversing those findings only when they are against the manifest weight of the evidence. However, we will review de novothe ultimate question of whether the confession was voluntary. In re G.O., No. 87476, slip op. at 9-10 (Ill. Sup. Ct. March23, 2000).

Defendant argues that in reciting defendant's Miranda warnings, Detective Montilla recited his own Spanish languagetranslation of these warnings and that the State failed to produce evidence that the Spanish words Montilla used accuratelyconveyed the content of the Miranda warnings. We hold that defendant has waived this contention for review because hedid not raise it in the trial court. People v. Enoch, 122 Ill. 2d 176, 190, 522 N.E.2d 1124 (1988).

Notwithstanding waiver, the record reveals that defendant was given Miranda warnings on at least three occasions. OfficerDeLeon gave defendant Miranda warnings in Spanish upon arresting him. There is no evidence in the record that defendantdid not understand these warnings when they were recited to him by DeLeon. Defendant was read his Miranda rights byDetective Montilla before the initial interrogation and before being questioned by the assistant State's Attorney. Based uponthese facts, the testimony adduced at the suppression hearing and at trial was sufficient to support the conclusion that thepolice advised defendant of his Miranda rights after his arrest.

Defendant next argues that the State did not establish that defendant voluntarily, knowingly and intelligently waived hisrights when he made the statement to the assistant State's Attorney. In determining whether a statement was voluntary, thecourt must examine whether the statement was made freely and without compulsion or inducement, or whether thedefendant's will was overcome at the time he confessed. People v. Mendoza, 208 Ill. App. 3d 183, 199, 567 N.E.2d 23(1991).

Defendant specifically argues that the English-Spanish language barrier affected the voluntariness of his statements. Wereject defendant's argument. The record reveals that the State presented testimony that defendant was informed of hisconstitutional rights in Spanish. Montilla and the assistant State's Attorney both testified that as defendant gave hisstatement in Spanish, Montilla translated to English and the assistant State's Attorney wrote the statement in English. Oncethe statement was written, Montilla translated each sentence to Spanish for defendant and asked if the sentence was correct.Any corrections were made sentence by sentence. Montilla then read the entire corrected statement to defendant in Spanishwith defendant signing the written statement and initialing the bottom of each page. We further note that there is noevidence in the record to suggest that defendant had difficulty understanding Montilla or that he expressed a desire for adifferent interpreter. As to defendant's assertion that he thought the assistant State's Attorney was his lawyer becauseMontilla said she was a "lawyer for the State," this exact argument was rejected by this court in People v. Teran-Cruz, 272Ill. App. 3d 573, 578, 650 N.E.2d 663 (1995). Based upon this evidence, we hold that the trial court's ruling that defendant'sstatement was voluntarily made was not erroneous.

Defendant next argues that his confession should have been excluded as hearsay because the assistant State's Attorneypublished the statement when the statement was Montilla's translation of defendant's statement. Therefore, Montilla was theproper person to publish the statement. Defendant relies on the holding in People v. Torres, 18 Ill. App. 3d 921, 310 N.E.2d780 (1974). In Torres, a police officer testified to a statement made by the wife of the defendant relating to a shooting bythe defendant. The statement was made at the scene of the shooting and was in Spanish, which was translated to the officerby a bystander. At trial, the officer testified to the contents of the statement even though the bystander did not testify as tothe translation. This court held that, at most, this amounted to harmless error as the defendant's wife did testify at trialregarding the shooting. Torres, 18 Ill. App. 3d at 929.

In the instant case, the record establishes that Montilla was fully cross-examined regarding his involvement in translatingdefendant's statement and the substance of defendant's statement. Montilla discussed in great detail the process of obtainingthe statement from defendant. Montilla further testified that defendant gave the same statement, with more details, to theassistant State's Attorney, as he had given earlier to Montilla. We hold that defendant was not prejudiced by the assistantState's Attorney's act of publishing his statement to the jury and that the statement was therefore properly admitted. SeePeople v. Grisset, 288 Ill. App. 3d 620, 630-631, 681 N.E.2d 1010(1997). However, we must emphasize that unless theperson who acts as the interpreter testifies as to the taking of the statement, the statement is inadmissible hearsay. Torres, 18Ill. App. 3d at 928-29.

Defendant also argues, for the first time on appeal, that his statement should be suppressed due to an alleged violation of theVienna Convention. Defendant asserts that, as a Mexican national, his rights were violated because he was not advised ofhis right to contact the Mexican consulate for assistance prior to interrogation pursuant to article 36 of the ViennaConvention (Vienna Convention, art. 36, 21 U.S.T. 77, 100, 596 U.N.T.S. 261). Article 36(b) of the Convention provides inrelevant part: