Appeal from the Circuit Court of Lake County; the Hon. William
D. Block, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 6, 1984.
Defendant, Enrique Miranda Merrero, was charged in a four-count information with the offenses of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). At the conclusion of the trial, the jury returned verdicts of guilty on all counts. Defendant was sentenced to 40 years' imprisonment for the offense of murder. No sentence was imposed on the armed violence charge as a lesser-included offense of murder. The defendant appeals, contending: (1) that defendant's motion to suppress custodial statements should have been granted where defendant's waiver of his constitutional rights was not voluntary; (2) that improper references to the murder victim's family at trial and at the sentencing hearing constitutes reversible error; and (3) that a corrected mittimus deleting the armed violence charge should be issued.
The defendant was arrested for the shooting murder of Jesus Cruz on November 27, 1982, in front of Fernando's Tap on Tenth Street in North Chicago. Defendant was interrogated by David Fermaint of the North Chicago police department. After being read his Miranda warnings in Spanish, defendant signed a Spanish-version of the waiver of rights form and gave a custodial statement. In that statement, defendant said he went to Fernando's Tap on the night of the shooting and recognized a man there as one of three men who allegedly assaulted him three weeks earlier. The defendant remained in Fernando's until the man went outside. The defendant followed and shot the man with a .22-caliber pistol. The defendant then ran to a bar on Ninth and Lincoln Streets. As he was running, he threw the gun into a lot on Tenth Street. Defendant walked around until he was told by some men that he was wanted by the North Chicago police. The defendant again was read his Miranda warnings and asked to sign a waiver of rights form before he repeated his statement for a taped recording.
Prior to trial, defense counsel moved to suppress the defendant's statements on the grounds that due to the defendant's limited mental capability and knowledge of the English language, the defendant did not understand his constitutional rights and, as such, his waiver was not knowingly, voluntarily and intelligently made. At the hearing on the motion, Officer Fermaint testified that the two interrogations were conducted in Spanish when the defendant indicated he had been in the United States about two years and spoke little English. The first interview was at 10:45 a.m. on November 27, and the second taped interview took place at 11:04 a.m. that day. During those interviews, Fermaint, who is fluent in Spanish, read the police department's Spanish version of the Miranda warnings to the defendant. After each line, Fermaint asked the defendant if he understood his right to which defendant replied that he did. Defendant was then told by Fermaint to read aloud the Miranda warning. Defendant did so and then signed the waiver of rights form. According to Fermaint, defendant never indicated he wanted a lawyer. He stated that no threats or force were used and the defendant did not seem to have trouble understanding Fermaint and his answers were responsive to Fermaint's questions.
On cross-examination, Fermaint admitted that there were some differences between the Spanish and English versions of the Miranda warning that the police department used. The Spanish version did not contain the statement, as in the English version, that the defendant may stop the interrogation at any time and request an attorney. Also, the Spanish version inquires whether the accused understood his rights, while the English version states that an accused must fully understand his rights before answering any questions.
The defendant testified, through an interpreter at the hearing, that he left Cuba in 1979. He completed a first grade education in Cuba. He admitted reading the warning forms presented to him by Fermaint; however, he stated that he did not think he understood the meaning of the warnings. He stated that he thought the right to remain silent meant that he was "to be quiet." When told that anything he said could be used against him, he thought it meant "to state why." He was not aware that he could stop talking at any time. Although he admitted he had been represented by a court-appointed attorney in prior criminal matters in the United States, he stated he did not understand his right to an attorney. Defendant also testified that although he did not ask for an attorney and that the police did not threaten or strike him, he signed the waiver of rights form because he thought he would be beaten if he did not do so. The motion was denied, the trial court finding the defendant's waiver to have been knowing and voluntary.
At trial, the State's first witness was Madeline Cruz, the victim's wife. She testified that she and the deceased had spent the day of the shooting together. Around 8 p.m., on November 26, he left home to visit with his friends, Jose Gonzales and Jose Ayala. Over defense counsel's objection, Mrs. Cruz identified her husband from a family photograph of Cruz with his wife and daughter.
As defendant does not challenge the sufficiency of the evidence to convict, a summary of the significant testimony follows. Jose Ayala testified that around midnight on November 26, Ayala and Cruz, along with Jose Gonzalez and David Vargas, went to bars in North Chicago. Cruz went to Fernando's Tap at Tenth and Lincoln and the others went to another bar. Around 1:30 a.m., Ayala went to Fernando's where he spoke briefly with Cruz before going to the men's room. A few moments later, Ayala was told there was a fight outside. Ayala went outside and saw Cruz on the ground, his face covered with blood. The defendant was a half block away, shooting a gun.
Joseph Gonzalez testified that later that evening he went to Fernando's and that Cruz and he left the bar at about 2 a.m. Once outside, Gonzalez saw a Cuban give a pistol to the defendant and told him to "fire it." The defendant fired the gun five or six times, hitting Cruz who was standing on the sidewalk in front of Fernando's.
Eugenio Rivera testified that he was at Tony's bar on Ninth and Lincoln at 2 a.m. on the 27th. He stated that the defendant came into the tavern with a revolver in his hand and said that he had just finished killing someone on Tenth Street.
David Fermaint of the North Chicago police department testified about his interrogation of the defendant on November 27. The taped statement of the defendant was played to the jury, and a stipulated translation of the statement was transcribed on the record. The taped statement was substantially consistent with the defendant's first statement to Fermaint. The defendant, testifying on his own behalf through an interpreter, stated that on November 15, 1982, he was allegedly attacked by Cruz and two other men. Defendant saw Cruz again, by chance, at Fernando's Tap on Tenth and Lincoln on the night of November 26. While the defendant was there, defendant ran into Cruz in the men's washroom. He stated Cruz pushed defendant two or three times and the defendant then left the washroom. Later that night, the defendant followed Cruz as he was leaving the bar. The defendant stated Cruz had his hands in his pockets and looked at the defendant "like wanting to call [him]." The defendant then shot Cruz. The defendant stated that although he was "pretty well drunk," he thought that Cruz was going to attack him again. He did not see any weapon on Cruz. He said he was not trying to kill Cruz but was merely trying to scare him.
Following the conclusion of the testimony, the defense objected to the display of a family picture to the jury intended as a "life" picture of the victim. After hearing arguments from both sides, the court ruled that cardboard would be placed over the pictures of the victim's wife and child and that the photograph would be circulated through the jury but not allowed into the jury room during deliberation.
The jury found the defendant guilty on all counts. At a sentencing hearing, the trial judge heard testimony in aggravation from the victim's wife. No other witnesses testified at the hearing. The trial judge entered a judgment sentencing the defendant to 40 years' imprisonment for the offense of murder. With the concurrence of the State, the trial court did not impose a sentence on the armed violence charge, finding the latter to be a ...