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01/19/88 the People of the State of v. Alejandro Hernandez

January 19, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

ALEJANDRO HERNANDEZ, APPELLANT



SUPREME COURT OF ILLINOIS

521 N.E.2d 25, 121 Ill. 2d 293, 117 Ill. Dec. 914 1988.IL.28

Appeal from the Circuit Court of Du Page County, the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE SIMON delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON

Ten-year-old Jeanine Nicarico was abducted from her home in Naperville on Friday, February 25, 1983; she was raped and murdered the same day. On March 6, 1984, the defendant, Alejandro (Alex) Hernandez, and two co-defendants were indicted on charges of murder, residential burglary, home invasion, aggravated kidnapping, aggravated indecent liberties, deviate sexual assault, and rape, and they were tried together. The defendant and Rolando Cruz were convicted on all counts (except home invasion, which was nol-prossed on the State's motion) following a jury trial in the circuit court of Du Page County. The jury was unable to reach a verdict on identical charges against the second codefendant, Stephen Buckley. The defendant waived his jury right for purposes of the death penalty hearing, and a death sentence was imposed by the circuit Judge. Execution of sentence has been stayed (87 Ill. 2d R. 609(a)) pending Disposition of this direct appeal. Ill. Const. 1970, art. VI, 4(b); 87 Ill. 2d R. 603. I

The victim was home alone on the day of the crime because she had not been feeling well. Patricia Nicarico, the victim's mother, worked nearby, and she came home around noon to fix lunch, returning to work half an hour later. Patricia Nicarico last spoke with her daughter by telephone at about 1 p.m.; they discussed a television program the victim had been watching and whether Jeanine should write a letter to her grandparents. Two hours later, Kathy Nicarico, one of the victim's two older sisters, arrived home from school. She testified that the front door was ajar, the striker plate was on the ground and the molding from inside the door frame was almost totally torn off. Entering the house, she noticed that the television was on, but she could not find the victim. A partially written letter to the victim's grandparents was found in front of the television. According to the testimony of Kathy and her mother, there were signs of a struggle in the older sisters' bedroom; a blanket and top sheet were missing from Kathy's bed. Nothing else had been stolen although a television, video cassette recorder, jewelry box, and several articles made of silver were all in plain view.

Investigating officers testified regarding their examination of the Nicarico home. Fingerprints were lifted from inside the house, and a boot print was discovered on the front door just below and left of the latch. Two shoe prints, each with a different tread design, were found outside the living-room window. A fourth print was found inside a depression on the Nicarico lawn where a car tire had apparently ridden up over the curb and left an imprint. Two dogs and their handlers were brought in from the Lake County sheriff's police, and the handlers testified that their dogs tracked Jeanine's most recent scent from the front door, part way down the driveway, across the lawn and to the curb about eight feet from the tire track on the lawn.

Jeanine Nicarico's body was found two days later, in heavy underbrush approximately 45 feet off a hiking trail, known as the Illinois Prairie Path, between Eola Road and the East-West Tollway in Du Page County. That portion of the Prairie Path ends where it intersects the Tollway approximately 1,500 feet north of where the victim's body was discovered. Investigating officers testified that the body was found lying face down on a slight incline. Approximately two feet up and to the left of her head there was a small, "head shaped" depression in the mud; blood was found in that depression. A small quantity of leaves and mud were adhered to the back of the victim's head, and the left side of her body was muddy. Her eyes were covered with a piece of towel which had been taped firmly to her head, and she was found wearing only her nightshirt, torn from the hem to the right armpit and pulled up over her shoulders. Patricia Nicarico testified that the victim had been wearing underwear, but her underwear -- like the blanket and top sheet from Kathy's bed -- was never found.

Dr. Frank Cleveland, the coroner of Hamilton County, Ohio, conducted a post-mortem examination. He testified that the victim died from at least five extraordinarily powerful blows delivered to the front and back of her head by a blunt instrument; each injury to the back of her head was characterized by a large laceration that became V-shaped at one end. All of the blows were delivered within a limited span of time, and each individually would have been fatal. The victim also suffered a broken nose, split upper lip and severely bruised lower lip, and there was a small bruise on her left shoulder. She had abrasions on the upper back sides of her legs which were inflicted either after her death or very shortly before as blood was redirected in reaction to her head injuries.

The autopsy revealed evidence that the victim had been raped and anally assaulted before her death, but a toxicologist from the Illinois Department of Toxicology testified that too little semen was recovered from the victim's body to be of evidentiary value. The Chief Toxicologist of the Illinois Department of Public Health testified that he examined the victim's stomach contents and determined that she died two to four hours after eating. Dr. Cleveland agreed with that judgment. Because the food in her stomach was consistent with what the victim's mother had prepared for her lunch on February 25, the evidence indicates that the victim was abducted, raped and murdered all within a span of one to three hours between 1 and 4 p.m. that day.

There were no witnesses to any of the crimes perpetrated against the victim, but two prosecution witnesses gave evidence as to their observations of events occurring on February 25 which might have been connected to the crimes. Joan Johanville had lunch with her husband at the couple's upholstery business, located in a garage next door to the Nicarico home. She left her husband at about 10 or 12 minutes past 1 p.m. to drive home, and just past the Nicarico home she had to bring her car almost to a stop to avoid colliding with a car driving down the center of the street in the opposite direction. Johanville described the car as an older, light-blue or white car with a great deal of rust on the lower body. She also testified that the only person she saw in the car was its driver and that she remembered his face for his "very creepy and scary" eyes.

At trial, Johanville identified Buckley as the driver. However, she described the driver to police and FBI agents shortly after the incident, and her description was of a man with no facial hair and wearing wire-rimmed "granny" glasses. It is undisputed that Buckley has never worn eyeglasses and that he had a mustache, wide ("mutton chop") sideburns reaching down to his mustache, and hair nearly down to his shoulders at the time. Nonetheless, Johanville was certain of her identification, explaining that she might have "transposed" the glasses onto Buckley's face from the face of someone she knew and who resembled Buckley.

Frank Kochanny, a highway maintenance engineer for the Illinois Tollway Authority, testified for the State. He said that he and a fellow worker were picking up trash alongside the east-bound lanes of the East-West Tollway between 2:45 and 3 p.m. when they saw a car driving parallel to the Tollway just south of the boundary fence. It was driving in an area west of Eola Road, near a "Coldwell Banker" billboard. The Prairie Path meets the south side of the Tollway west of Eola Road, and at the time a "Coldwell Banker" advertisement was located just west of where the Path intersects the Tollway. Kochanny testified that the car was driving west at roughly 10 miles per hour, and that approximately 20 to 25 feet from the sign the car did a three-point turn, heading back to the east at a relatively faster speed. When Kochanny stepped out of his truck for a better look, the car had disappeared. Kochanny described the car he had seen as a 1978 or 1979 green Ford Granada with a hubcap missing from the front driver's side wheel. He saw a single individual in the car, a white male with dark sunglasses and hair midway down his ears or shorter.

Dean Schmunk testified that he spotted a green, four-door Ford Granada on March 8, 1983, with a hubcap missing off the front right wheel; he noticed it because police had said they were looking for such a car in connection with the Nicarico case. Schmunk had only a brief look at the driver, but he testified that he recognized Buckley as the driver of the car when he saw Buckley's picture in the newspaper the following March. There is, however, no evidence that either Buckley or any of his family or friends owned a green Ford Granada. Nor did investigators discover any reported thefts of such a car during the time at issue.

The only evidence presented against the defendant consisted of his pretrial oral statements; there is no physical or eyewitness evidence linking him to the crimes. The first of those statements testified to at trial was made by the defendant to his mother, Haydee Hernandez, within two weeks of the victim's death. Haydee testified that her son asked for her advice on what to do having heard a conversation in which someone he claimed not to know admitted his involvement in a murder. Haydee testified:

"He [the defendant] said, 'Well, I was going down to passing the Jewel supermarket and I be invited by some friends to, if I want to drink a beer with themand he said, 'Yes.' He get inside of the car and they was drinking beer, somebody in the car said, 'I don't want to kill -- I don't want to kill her.'

And I told him [the defendant], 'But what you mean? What he mean?'

He said, 'I don't know.'

That's what he said, 'He don't want to kill her but he killed her because she started screaming.'

I told him, if he knows, the guy.

And he [the defendant] said, 'Well, I don't know him but he is a friend of, you know, the people that invite him to drink the beer with him.'"

On his mother's urging, the defendant spoke to his uncle, Wilfredo Estremera. Estremera testified that the defendant was riding in his car and they had just heard a radio news story about the case when the defendant said: "'Uncle, you know what? I know the guy that killed the little girl in Naperville.'" According to Estremera, "I asked him for a name, if he knew the guy's name and he said, 'The guy's name was Ricky.'" The defendant said he did not know Ricky's last name, but he told Estremera that Ricky "is a white boy [who] hangs out in Aurora, and he is from Oswego." According to Estremera's testimony, the defendant related that "they were sitting one day in his friend's car and that his friend was drunk and he was high and he just came out and told [the defendant] he had killed the little girl."

The defendant also told Estremera that he did not want to call the police because he was afraid of getting killed; he said that the person responsible for the victim's death had also committed a crime in Aurora known as the "Frosty Mug" murder. Estremera told a co-worker, however, and the co-worker contacted the FBI. Tracing the call back to the co-worker and Estremera, Du Page investigators eventually contacted the defendant on March 10, 1983.

When contacted on that date by Du Page County sheriff's police detective John Sam, the defendant agreed to be interviewed but at first denied any knowledge of the crimes. After 10 or 15 minutes, he related that he was sitting in a car with Stephen Buckley, Mike Castro and a third man, who was telling a story of how he had killed a girl in Naperville. The defendant referred to the confessing man first as Ricky from Oswego and later in the conversation as Ricky Benevides.

Special Agent Jeff Boggan of the FBI testified that on March 16 he was present when the defendant made a statement recounting "Ricky's" participation. The defendant said he was sitting in Ricky's car drinking beer with Mike Castro, Stephen Buckley and Ricky, whose last name he said he did not know. During the conversation the defendant suggested that they all go to the junior high school and "look at the women." Ricky said he did not want to go, and then he added that he had not meant to "kill that bitch." The defendant told Agent Boggan that Ricky carried a nightstick in the trunk of his car.

Investigating officers arranged for the defendant to meet a friend of his, Armindo Marquez, Jr., who was incarcerated in the Kane County jail on charges of residential burglary. Marquez testified that he brought up the subject of the Nicarico murder after a few minutes of casual conversation with the defendant, at which point the defendant made the following admissions:

"He [the defendant] said that -- he said his partner drags the girl out of the house by her ankles. . . . He said he had dropped his partner off, went around the block once and pulled up in the driveway, that's when he saw him pulling this girl out by her ankles."

Marquez testified that the defendant had said he noticed the Nicarico's black nightlight and that it bothered him, though he did not know why. The victim's father testified that a nightlight like the one Marquez said the defendant described to him was located in front of the house. Marquez also testified that the defendant at first claimed that some diamond rings were stolen from the Nicarico home during the abduction, but the defendant later contradicted himself and said no property had been taken.

The defendant told Marquez, according to the latter's testimony, that they took the victim to an abandoned house and killed her because she was making too much noise. "So then he [the defendant] -- he used something to tie her eyes with and then he held her and the other guy hit her" with a club or bat. After that, "[s]he was dumped and stomped on the back of her head." Du Page and Kane County officers took the defendant and Marquez in search of the abandoned house on two separate occasions, but it was never found.

Marquez testified that in his presence the defendant identified a picture of Ricky Byrnes as the subject of his "Ricky" statements. After the officer displaying that photograph left, the defendant told Marquez that Byrnes was not really involved. According to Marquez, the defendant first said he did not know the perpetrators' real names. The defendant later said he did, but that if he revealed their names he would be shot.

Jackie Estremera, the defendant's cousin, testified that he had a conversation with the defendant in October 1983 in which the defendant claimed to have participated in the crime. Jackie Estremera testified:

"He was telling me, he said he knew who did it, the person that did it was in Kane County or he was telling me that the person that did it was in California or he was the driver or another person was the driver. He was just confused, that's all."

Jackie Estremera testified that the defendant told him that they had planned to burglarize the home, and that the defendant drove.

"They went out, he says he never came out of the car, they went up, they went to the house and --

Well, they knocked the door down, they kicked it in. He heard, he said he heard -- he had heard it from his friend and then he said the person who did it was in California. . . .

Q. And what, if anything, do you recall at that time, Alex Hernandez telling you as to why they took the little girl?

A. Yes, because she -- they didn't want her, the little girl, to recognize them if they were taking her down to the police station and showed pictures."

Jackie testified that the defendant asserted "he wasn't going to say nothing unless he got [reward] money."

While in the custody of Du Page County sheriff's police on June 6, 1984, the defendant made a statement to Lt. Robert Winkler, watch commander at the Du Page Correctional Center, in which he said that he and two other individuals planned to burglarize a house in Naperville. They drove to the house in a late model dark-green Lincoln Continental, but the defendant lost his nerve on the way and was let out of the car three blocks from the Nicarico home. He told Lt. Winkler that he was picked up a short time later, and when he stepped into the car he saw the victim and proceeds from the burglary, including an automatic coffee maker. The defendant said he noticed that the girl had a split lip and was scared. He claimed to have been let off at home while the victim was still alive and to have never seen her again.

Deputy James Roberson, a county jailer, testified that the defendant told him a different story the next day. The ...


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