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01/19/88 the People of the State of v. Rolando Cruz

January 19, 1988





521 N.E.2d 18, 121 Ill. 2d 321, 117 Ill. Dec. 907 1988.IL.29

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


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


An indictment returned in the circuit court of Du Page County charged Rolando Cruz (defendant), Alejandro Hernandez, and Steven Buckley with the murder of 10-year-old Jeanine Nicarico (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a)), deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11-3(a)), aggravated indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4.1(a)), aggravated kidnapping (Ill. Rev. Stat. 1981, ch. 38, pars. 10-2(a)(2), (a)(3)), home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(2)) (nol-prossed on the People's motion), and residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a)). The circuit court denied defendant's pretrial motions for severance, for separate juries, and for change of venue, as well as his motion to draw the jury panel from another county. After a lengthy trial, the jury returned verdicts of guilty against defendant and codefendant Hernandez on each of the offenses charged, but was unable to arrive at a verdict for co-defendant Buckley. Defendant's sentencing hearing was severed from that of his codefendants, and the cause proceeded to a bench hearing (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)(3)). The trial court found that there existed a statutory aggravating factor (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(7)), and that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and his sentence was stayed (107 Ill. 2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). Co-defendant Hernandez was also sentenced to death. On his separate appeal to this court, Hernandez' conviction was reversed for reasons similar to these which compel the reversal in this appeal of Cruz' conviction. See People v. Hernandez (1988), 121 Ill. 2d 293.

Evidence presented at trial indicated that on February 25, 1983, sometime between 1 p.m. and 3 p.m., some person or persons broke in the front door of the Nicarico home and later dragged Jeanine out of the house. Two days later, Jeanine's body was discovered in a wooded area on the Illinois Prairie Path near Eola Road, south of Illinois Route 5 in Naperville. The coroner determined that Jeanine's assailants had assaulted her anally and that several severe blows to the head caused her death. Examination of stomach contents showed that she died shortly after her abduction.

On March 14, 1983, detectives from the Du Page County sheriff's department questioned co-defendant Hernandez, acting on an anonymous tip that he might have information concerning the murder. Hernandez then told police that he and co-defendant Buckley heard a third individual named "Ricky" say he had killed the little girl. On April 17, 1983, sheriff's detectives spoke with Arthur Burell, an acquaintance of Cruz and Hernandez. Two days later they spoke with Cruz, who stated he knew Hernandez. On May 9, 1983, defendant requested a meeting with the detectives; on the way to the sheriff's department offices, Cruz allegedly told them of a "vision" that he had had earlier that day, in which he saw that the victim had been dragged from her house and dumped near a field, and hit in the back of the head so hard that it left an impression in the mud where she lay. He also told detectives that she had been sexually violated anally. Detective Vosburgh of the Du Page County sheriff's department testified that he offered to show defendant a picture of the crime scene to determine if it coincided with his "vision," but defendant became emotionally upset and started to cry. On March 9, 1984, on the basis of these and other statements to various witnesses, defendant was arrested and charged with murder.

On appeal, the defendant's principal contention of error is that the circuit court failed to sever the trials of these codefendants. Cruz contends he was denied the right to confront witnesses against him guaranteed by the sixth amendment of the United States Constitution as interpreted by the Supreme Court in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. Bruton stands for the proposition that confrontation is denied when out-of-court statements made by a non-testifying co-defendant are used to inculpate another defendant. Bruton holds that prejudice from these explicit inculpations cannot be cured by instructions to the jury to consider the confession only against defendant A and disregard it against defendant B.

Cruz contends that statements made by Hernandez to various witnesses that he (Hernandez) had been involved in the crime with "friends" or "named individuals" directly implicated Cruz because the statements were inadequately redacted. (Redaction involves deleting, from out-of-court statements, references to defendants other than the declarant.) Cruz further argues that the witnesses' accounts of Hernandez' statements are contextually inculpating as well, where the prosecution presented evidence informing the jury that Hernandez and Cruz had been friends at the time of the crime. Defendant contends that the trial court was thoroughly apprised, prior to trial, of these statements by defendant and co-defendant Hernandez, as well as the prosecution's intent to establish a friendship link, and that the trial court's failure to grant the motions for severance denied him a fair trial so that the protections of Bruton v. United States were rendered illusory.

The People respond that severance was not required because codefendant Hernandez' statements implicating Cruz were redacted to eliminate all references to defendant and the prosecution did not seek to use the contents of Hernandez' statements as evidence against Cruz. The People maintain that there was no substantial risk here that the jury, despite instructions to consider statements only against the declarant, Hernandez, would look to the incriminating out-of-court statements of Hernandez to determine the guilt of Cruz. The People assert that the prosecution's argument to the jury that the codefendants were friends was proper because the friendship was relevant to show that the crime was committed by more than one person and that these defendants acted in concert in performing the crime. Relying upon People v. Morgan (1986), 112 Ill. 2d 111, the People state that any potential error was cured when the trial court sustained a defense objection to this line of argument.

The principal evidence presented at trial against Cruz consisted of testimony by witnesses to statements made by Cruz and codefendant Hernandez; while Hernandez' statements admit an involvement in the crime, defendant himself admits only that he had talked to persons who kidnapped the victim. However, the statement he made to police concerning a "vision" he had about the crime did demonstrate a knowledge of facts surrounding the victim's death which the police had not disclosed to the public during the investigation, facts presumably known only to someone who had participated in the crime. Defense counsel attempted to persuade the jury that defendant's knowledge was gained in the course of cooperation with police investigators and that defendant's statements were fabricated in his attempt to collect a piece of the sizeable reward offered for the conviction of the killer.

Prior to trial, all defendants filed numerous motions for severance, providing the trial court with some 41 of the statements in which they implicated one another, statements which the People indicated they intended to use at trial. On August 29, 1984, counsel for Cruz argued that the statements by co-defendant Hernandez would implicate Cruz at trial. The trial court noted the potential Bruton problem but denied the severance motions. On December 27, 1984, Cruz and codefendant Buckley renewed their motions for severance, as counsel for Buckley cited specific examples of statements made by co-defendant Hernandez that would imply the complicity of co-defendants Cruz and Buckley. The circuit court again denied the defendant's motions for severance, at which point defense counsel requested that the court rule on proposed redactions, and the court ordered that opposing counsel should confer to resolve the redaction problem. On January 3, 1985, defendants once again filed a motion for severance, accompanied by a list of the statements in which defendants implicated each other, but the circuit court denied that motion as well.

Cruz complains that testimony by several witnesses improperly linked him to Hernandez' admissions. Lieutenant Robert Winkler, an officer at the Du Page County corrections center, where Cruz and codefendant Hernandez were held, testified that early in June 1984, codefendant Hernandez requested to speak with him. Hernandez told him that in February 1983, he had planned a burglary in Naperville "with two other named individuals." He said that they had proceeded to the location but when it came time to carry out the crime, he, Hernandez, lost his nerve and told the "two other named individuals" that he did not want to go through with the burglary, at which point they dropped him off three blocks away. He stated that they returned a short while later to pick him up and when he entered the vehicle, he noticed a little girl, as well as other items that were fruits of the crime. They returned to Aurora, at which point the "two named individuals" dropped him off at his home and that was the last he saw of the little girl. Prior to trial, Winkler had identified as the "two named individuals" Cruz and co-defendant Buckley.

Winkler also testified to a conversation between himself and Cruz that had occurred a week to 10 days earlier. Cruz had related that some "friends" had approached him one day in February of 1983 and asked him if he wanted to be involved in a burglary, but that he declined to participate. He stated that he did not allow them to use his car, but did show them how to hotwire a vehicle. Cruz said the "named individuals" approached him two days later and asked him if he ...

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