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People v. Gallardo

OPINION FILED FEBRUARY 4, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ISIDRO G. GALLARDO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted of murder and sentenced to a term of 60 years. He contends on appeal that (1) he did not receive effective assistance of counsel; (2) he was denied a fair trial when the jury was given an unintelligible instruction on voluntary manslaughter, and the court, outside the presence of defendant or his counsel, failed to answer the jury's question on this issue; and (3) the trial court abused its discretion in sentencing him to an extended term of 60 years.

At a pretrial hearing on defendant's motion to suppress his statements as involuntarily made, police officers testified that they approached defendant in Witort's Tavern at approximately 5:30 p.m. on June 26, 1980, and after identifying themselves as police officers, said they wanted to talk to him; that he was told he was not under arrest, but they did not tell him he was not required to accompany them; that he was taken to the Melrose Park police station along with Guillermo Castillo, another suspect, for investigation; that defendant spoke some English, but when he indicated a desire for a Spanish interpreter, questioning ceased until the interpreter arrived; that the interpreter, after participating in the questioning of Castillo, met with defendant at approximately 10 p.m. and, speaking Spanish, identified himself as a police officer; that he read Miranda warnings to defendant in Spanish, which defendant acknowledged he understood; that defendant then agreed to make an oral statement in which he admitted killing the victim; that defendant was not physically or mentally coerced, was allowed food and drink, did not appear to be intoxicated, and received no promises of leniency; that his responses to questions were appropriate, and the interpreter had no difficulty communicating with him; that defendant signed a waiver of his Miranda rights which, although written in English, was orally translated into Spanish; that he then wrote out a statement in Spanish and later made a further oral statement to Assistant State's Attorney Speh after again being informed, in Spanish, of his Miranda rights and stating that he understood them; that he acknowledged his written statement to Speh but, when asked to tape record a statement, he declined and requested a lawyer — at which point all questioning ceased; and that, during this time, defendant was not free to leave, although he was not informed that he was under arrest until after he made the first oral statement.

Defendant testified that he was intoxicated when the police picked him up at Witort's Tavern, and he therefore did not remember most of what happened at the police station; that the interpreter did not identify himself as a police officer and spoke broken Spanish which was difficult to understand; that he was never read his rights and, although he said from the beginning that he wanted to speak to a lawyer, none was provided; and that he was physically abused before making his statement.

The motion to suppress was denied and, at the subsequent trial, Chris Kempf testified that he left the Anchor Inn Tavern (the tavern) between 1 and 1:30 a.m. on June 26, 1980; that the only other person present at that time was the bartender, Frank Turso; and that the tavern was equipped with a system which prevented entry unless someone on the inside pressed a buzzer.

Harold Sziviski, owner of the tavern, testified that he arrived at approximately 3:15 a.m. to check the cash receipts; that as he approached he noticed that the outside lights were turned off but the interior lights, usually extinguished at closing, were still burning; that he looked through a window and saw several stools overturned and Turso lying face down in a pool of blood; that he entered the tavern but could not remember whether the door was locked; that $340 and a box of Puffs facial tissues were missing from the bar, but the safe, normally left unlocked, was locked and the handle was covered with blood; and that, when the safe was later opened, the night's receipts were inside.

Castillo testified that when defendant came to his apartment at the Broadway Main Hotel between 2 and 3 a.m. on June 26, 1980, he had a cut on one hand and explained that a black man beat him up and robbed him; that later that day defendant's hand was bandaged, and he cautioned him (Castillo) not to talk about the injury; and that he (Castillo) had told all of this to the police.

While testimony of police officers was essentially the same as that presented at the pretrial hearing, they added that upon their arrival at the tavern, they noted signs of a struggle with blood all over and traces of hair and human tissue on the base of a metal coat rack; that the following afternoon they noticed a trial of blood which led across the street to the Broadway Main Hotel and up to Castillo's apartment, where they found blood on the door; that after talking to Castillo, who had no visible signs of injury, they began searching for defendant and found him at Witort's Tavern, where they identified themselves to defendant as police officers and asked him to step outside; that when they inquired about the bandage on his hand, he explained that he cut his hand on some broken glass at Witort's the previous evening; that an immediate check with the bartender at Witort's failed to corroborate this explanation, and he was taken to the police station where, after waiving his Miranda rights, he told the officers that he left Witort's at approximately 1:30 a.m. on the night in question and went to a friend's home, but this story was denied by the friend; that in searching defendant's apartment, they found a shirt, a box of Puffs facial tissues, and a brown paper bag — all bloodstained — behind the refrigerator; and that there were bloodstains on the pants and shoes defendant wore at the time of his arrest.

Dr. Tae An, Assistant Cook County Medical Examiner, testified that the victim was 63 years old, five feet three inches tall, and weighed 130 pounds; that he had multiple lacerations on his scalp, temple, face and neck, multiple skull fractures, and four fractured ribs; that, in his opinion, the injuries were inflicted by no less than two blows of considerable force with a blunt instrument; and that the cause of death was cerebral injury due to skull fracture and hemorrhaging.

Officer Galvan testified that, while he was acting as interpreter, defendant related in an oral statement that on the night in question, after he left Witort's with a six-pack of beer, a black man confronted him and, thinking that the man had a weapon, he looked around and saw the victim standing in the doorway of a tavern; that the victim called out, "Hey, Mexican, come here," and he ran to him; that as he entered the tavern, the victim grabbed him with one arm and put his other hand in his (the victim's) pocket; that he (defendant) then pulled a knife and threw the victim to the floor; that when the victim got up, he threw him to the floor again and struck him three or four times with a barstool; that he cut his hand in the struggle and went to Castillo's to wash his wound, telling Castillo he had a fight with a black man.

Abiel Gonsalez, an official court interpreter, translated the statement written in Spanish by defendant, which related substantially the same events, except that defendant stated he killed the victim because he (defendant) thought the victim was reaching for a knife when he put his hand in his pocket.

Defendant testified that he was 25 years old; that he had been drinking heavily on the night in question and left Witort's Tavern at approximately 1:30 a.m.; that when a black man approached him and tried to steal his beer, he looked around and saw the victim who called him over; that as soon as he entered the tavern, the victim grabbed him; that he struck the victim with his fist, then with a bottle; that the victim grabbed him again, and he (defendant) hit him twice with a chair, causing him to fall; that when he left immediately thereafter, the victim was alive and trying to get up from the floor; that the only injury he (defendant) received was a 1/2-inch cut on his right hand; that he went to Castillo's apartment and told him about the black man and about the fight in the tavern; that he did not hit the victim hard enough to kill him; and that he was afraid the victim was reaching for a switchblade or a small gun when he put his hand in his pocket.

OPINION

Defendant first contends that he was denied effective assistance of counsel. He supports his position by alleging that his appointed counsel failed to move to suppress his statements as fruits of an illegal arrest; failed to argue to the jury or request an instruction on the theory of self-defense; and told the jury that defendant had the burden of raising a reasonable doubt. The State responds that the record, when considered as a whole, reflects the competency of defense counsel. It further argues that the motion to suppress would have been futile; that the question of what defenses to raise is a question of trial tactics and therefore not subject to review; and that defendant has failed to show any prejudice in his counsel's statement of what the evidence would show.

An accused has the right to effective assistance of counsel in State criminal proceedings pursuant to the sixth and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, XIV; People v. Knippenberg (1977), 66 Ill.2d 276, 362 N.E.2d 681), but effective assistance means competent, not perfect, representation (People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64); therefore, we will not require counsel to do a futile act (People v. Murphy (1978), 72 Ill.2d 421, 381 N.E.2d 677) nor extend our review to areas involving the exercise of judgment, trial tactics, or strategy, even where appellate counsel or this court might have acted differently (People v. Smith (1980), 81 Ill. App.3d 764, 401 N.E.2d 1017), and we will consider the totality of the circumstances in determining the competency of counsel, rather than focusing on isolated instances during trial (People v. Davis (1981), 103 Ill. App.3d 792, 431 N.E.2d 1210). In order to establish a violation of his constitutional rights, defendant must show within the above limitations that his appointed counsel was actually incompetent in carrying out his duties as a trial attorney, resulting in substantial prejudice without which the outcome probably would have been different. People v. Carlson (1980), 79 Ill.2d 564, 404 N.E.2d 233; People v. Greer (1980), 79 Ill.2d 103, 402 N.E.2d 203.

Turning to defendant's first allegation of incompetence, we note that the decision whether or not to file a motion to suppress is generally characterized as a matter of trial tactics and is therefore outside the scope of our review (People v. Hines (1975), 34 Ill. App.3d 97, 339 N.E.2d 489), particularly where it appears that the decision was based on counsel's informed judgment (People v. Reppa (1982), 104 Ill. App.3d 1123, 433 N.E.2d 1091). Here, counsel attempted to develop the illegality of defendant's arrest in questioning the State's witnesses at the hearing, and argued to the trial court:

"But I think what we have here, Judge, first of all we've got an illegal arrest. There is no question about that, and I think this court has the ...


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