SUPREME COURT OF ILLINOIS
535 N.E.2d 766, 126 Ill. 2d 424, 129 Ill. Dec. 1 1988.IL.1677
Appeal from the Circuit Court of Will County, the Hon. Patrick Burns, Judge, presiding.
JUSTICE CUNNINGHAM delivered the opinion of the court. JUSTICE CLARK, Dissenting. JUSTICE STAMOS joins in this Dissent.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM
On April 10, 1985, a bill of indictment was filed charging defendant, Manuel Salazar, with the murder of a police officer, Martin Murrin, while Officer Murrin was in the course of performing his official duties on September 12, 1984. (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (b)(1).) Subsequent to a change of venue from Will County to McLean County, a jury found defendant guilty of murder. Pursuant to section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1) (hereafter referred to as the death penalty statute), a death penalty hearing was held before the same jury (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(d)(1)). The jury unanimously found that defendant had attained the age of 18 or more, that statutory aggravating factors existed and that no mitigating factors existed to preclude the imposition of the death sentence. Defendant was sentenced to death. The sentence was stayed pursuant to Supreme Court Rule 609(a) pending appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d Rules 609(a), 603). This court will address in full all the evidence in this case as it applies to each issue. I
Defendant argues that he was denied equal protection of the law when the circuit court transferred the cause from Will County to McLean County, resulting in the alleged exclusion of blacks and persons of Spanish origin from the jury venire. Citing Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, defendant specifically argues that he is entitled to an impartial jury drawn from a cross-section of the community.
In Taylor, the United States Supreme Court held that the systematic exclusion of women from sitting on juries violates a defendant's sixth amendment right to have a jury chosen from a fair cross-section of the community. In this case, however, defendant's argument does not involve whether a systematic exclusion of a particular race or ethnic group has occurred, but in actuality whether a lack of a jury chosen from a fair cross-section of a community equal to the community where the crime was committed and from whence this cause was transferred has denied defendant equal protection. This court effectively addressed the issue in People v. Johnson (1986), 114 Ill. 2d 170. This court held:
"This is not a case involving the systematic exclusion of 'a "distinctive" group in the community' [citation], which would trigger a fair-cross-section inquiry under the standard recently announced by the Supreme Court in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Nor are we familiar with any constitutional right allowing a defendant to select his own place of trial. [Citation.] To require that the venire of the transferee county proportionately mirror any distinctive groups found in the originating county would either saddle our judiciary with an onerous, if not impossible, task or effectively grant defendants a heretofore unrecognized right to choose their place of trial." 114 Ill. 2d at 180-81.
The facts in this case are similar to those in Johnson. Defendant in this case was indicted in the circuit court of the Twelfth Judicial Circuit, Will County. On July 29, 1985, the People raised the issue of change of venue because in previous conversations with defendant's out-of-State counsel, the People were under the impression that defense counsel thought that the case had been transferred from Will County to Kankakee County as a matter of law. However, the People had not received any motion regarding the matter. The local defense counsel confirmed the People's statements. The trial court at this point stated that it did not know if the case would be transferred to Kankakee County because it did not believe that the "climate" would be beneficial to defendant based on previous experiences in that county. The court later expressed concern about transferring the case to Kankakee or Iroquois County and suggested the possibility of Rockford or "someplace like that." Local counsel agreed.
On August 2, 1985, the local defense counsel officially gave notice to the court and the People that it would be filing a motion to change venue in three weeks. Defendant filed his motion for change of venue on August 29, 1985, and on the same date the court held a hearing on the motion. The court granted defendant's motion but reserved its ruling regarding the naming of the situs of the trial. The court also expressed some reservations regarding other areas within the circuit and stated that it would confer with the chief Judge regarding the arrangements. Defense counsel expressed no objections to Cook County, but the court stated that it would not be Cook County and possibly would be Peoria or Bloomington or "something like that."
On September 17, 1985, the court filed its written orders transferring the case from Will County to McLean County for trial commencing on November 4, 1985. At the October 18 hearing, the out-of-State defense counsel expressed concern regarding the place of venue because of his need to be near an airport in light of the fact that he was coming from California. The court assured him that Bloomington in McLean County had a substantial airport. Defense counsel stated that if he had any more objections to venue he would submit a written motion. Defense counsel then expressed concern over the selection of jurors in McLean County. The court noted that it had filed its order for change of venue on September 12, 1985, and that defense counsel had waited until October 18, 1985, to express concern. The court told defense counsel that the motion had to be filed very soon because five weeks had passed.
On November 4, 1985, the date of the start of the trial, defense counsel filed a motion to discharge the jury and transfer this case to another county because .82% of the McLean County population is of Hispanic origin and 5% is of black and Hispanic origin, whereas the county of the incident is 4% of Hispanic origin and 14% of black and Hispanic origin. Defendant alleged that Spanish and black persons were being systematically excluded from the available jury pool. Prior to jury selection the court held a hearing on the motion. The trial court denied defense counsel's motion.
This court finds that defense counsel was attempting to force the circuit court to pick a venue favorable to defendant or to defendant's liking. This court does not recognize a right on behalf of a defendant to choose venue. As illustrated in this case, a defendant could continue to object to venue until a favorable situs has been found. The circuit court has discretion to choose the proper venue, and this court finds that the court did not abuse its discretion. The circuit court considered the amount of pretrial publicity, the other counties in the circuit, and the out-of-State defense counsel's concern for an airport and appropriately chose McLean County. Thus, this court finds that the circuit court did not abuse its discretion. II
Defendant argues that the People failed to prove beyond a reasonable doubt defendant's guilt. Defendant specifically argues that the People failed to prove that defendant had the requisite mental state, i.e., that he intentionally killed Officer Murrin. The evidence reveals otherwise.
Officer Thomas Ponce stated that on September 12, 1984, at approximately 5 p.m., he and the deceased were patrolling in full uniform in the northeast section of Joliet. They were traveling in a marked police squad car. As they were traveling eastbound on Woodruff Avenue and were approaching the intersection of Draper Avenue, they observed a green, full-size, four-door car with a group of male Spanish subjects and a male black traveling on Draper Avenue toward Woodruff. Officer Ponce pointed out the car to Officer Murrin. Officer Murrin then told Officer Ponce to continue driving eastbound on Woodruff as Officer Murrin maintained observation of the vehicle. As they passed the vehicle, Officer Murrin instructed Officer Ponce to turn the squad car around as they both continued to keep the green car in their sight. After Officer Ponce made the U-turn, the car under observation was coming toward the squad car. At that time, the car stopped and a black male subject and a Spanish male subject exited the car and began running away from the car. The Spanish subject held a red bag in his hand. Officer Ponce drove the car into a vacant lot which defendant ran across. Officer Murrin then instructed Officer Ponce to "cut him [defendant] off," pointing toward Antram Avenue. Officer Murrin exited the squad car and began pursuit of defendant on foot. About two minutes later during Officer Ponce's attempt to locate his partner or defendant, Ponce heard five gunshots. Eventually, he saw defendant in the rear of a residence. Officer Ponce exited the squad car and yelled, "Halt, police." Defendant looked over his right shoulder at Officer Ponce and then ran off. Although Officer Ponce observed defendant holding a gun at a 45-degree angle, he did not fire at defendant because the distance was too far. He only observed that defendant was carrying a handgun and that defendant did not have any debris or blood on him. Officer Ponce at that time did not observe anything unusual about the right side of defendant's face. Soon afterwards, Officer Ponce found Officer Murrin, who was bleeding from the chest area, and immediately radioed for help.
Officer Ponce also stated that a week prior to this offense he and the deceased had had a Discussion regarding a "wanted" flyer on defendant. The deceased had directed Officer Ponce's attention to the flyer and told him that he was going to find defendant later during patrol. The wanted flyer contained the nature of the charge and a picture of the suspect.
Willie Pitts, who lives at 1029 Antram Avenue, overheard part of the scuffle between defendant and the deceased. Pitts was working on his car in his backyard when he heard the sound of "fast running feet." At that time, he came out from under the hood of his car and looked to his right but saw nothing. When he looked to his left, he saw a young man (defendant) running down the alley with a police officer following in pursuit. Pitts observed that the officer had a gun in his right hand and that defendant was carrying a plastic bag in his left hand. Pitts stated that the young man (defendant) was Hispanic or Mexican. A few seconds later he heard someone say, "Stop fighting, damn it. I got you. You are under arrest," and then he heard three quick gunshots followed by a pause and two more gunshots. Later he saw defendant come back down the alley and up on the hill behind his house. Pitts saw defendant vault one of the neighbors' fences while holding a gun in his right hand. He then saw defendant come back over the fence without the gun. Pitts stated that the left side of defendant's face did not have any unusual markings, blood or bruises. Pitts did not identify defendant as the young man he saw on the day of the offense. During cross-examination, defense counsel unsuccessfully attempted to sway Pitts regarding his prior statements.
To impeach Pitts, defendant presented Robert Brenczewski, a police officer for 14 years and an investigator for six of those years with the City of Joliet police department. Officer Brenczewski had taken statements from various witnesses, including Pitts, on September 12, 1984. Between 5:30 and 6 p.m. that day, he had spoken with Willie Pitts in Pitts' backyard.
Officer Brenczewski stated that Pitts told him that he first heard someone yell and then saw a male Mexican subject run by him. At that time, Pitts was working on his car in his backyard at 1029 Antram. Pitts was 6 to 12 feet from the alleyway. Pitts stated that he first heard a subject yell something to the effect, "Halt. I got you, God damn it. Freeze," and then saw a male Mexican wearing a red or maroon T-shirt with no collar and with black hair run past him. About 30 to 40 feet behind the male Mexican subject was a police officer with his gun drawn. Pitts heard the officer order the subject to halt and heard the officer yell, "Freeze. I got you." About 30 to 40 seconds later, Pitts heard a type of talking which he could not make out. Pitts did not tell Officer Brenczewski that he heard "Quit fighting" or "You are under arrest." When Pitts first saw the male Mexican subject running down the alleyway, he saw the subject carrying a plastic bag in his hand. Pitts told Officer Brenczewski that he was unsure of the exact color of the bag.
Pedro Palacios, a friend of defendant, was at his parents' house on September 12, 1985, working outside on his father's car when his brother David Palacios came up to him and told him that defendant was in the garage. Pedro stated that he then stopped what he was doing, went in the garage, and saw defendant putting on his brother David's clothes. Pedro saw that one of defendant's legs had a barbed wire cut on it and that defendant's face was "puffed up" on the right side. Pedro did not observe any blood by the eye and only a little blood on the leg which had been cut. Pedro did not see any other injuries on defendant but he did have a problem recognizing defendant at first. Defendant eventually told Pedro that he had just shot a cop. Pedro, David and defendant went downstairs into the basement to decide what to do next.
Defendant told the Palacios brothers that he had been chased by a cop. During the chase, defendant was carrying a bag with a 9 millimeter gun in it which he tossed. When the officer yelled "Freeze," defendant stopped and began to give himself up but the officer started to hit him repeatedly. When defendant could not take it anymore, defendant reached for the officer's gun. Defendant fired once and saw the officer turn around, say, "Oh, my God," and then defendant fired the rest of the shots.
At this point in the trial, the People introduced into evidence Pedro's taped statements pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1) as a prior inconsistent statement. The People argued that Pedro's prior taped statements to the police were inconsistent with his testimony at trial. Detective Terrence Mazur, an officer with the City of Joliet police department for 11 1/2 years, took Pedro's statements on September 15 and 17, 1984. Defense counsel objected and the court allowed an offer of proof outside the presence and hearing of the jury.
During the offer of proof, both of Pedro's tape-recorded statements were played. Pedro stated that the tapes were accurate and that nothing had been added or deleted on the tapes. Pedro stated that the second statement was taken to clarify when defendant threw his gym bag away. Regarding the first statement, Pedro stated that Officer Mazur interviewed him for two hours and suggested things for him to say on the tape. Regarding the second statement, Pedro stated that during the recording Officer Mazur had turned off the tape recorder several times and questioned him regarding defendant's taking the gun out of Officer Murrin's holster. However, Pedro admitted at trial that Officer Mazur did not threaten him in any way, but that Officer Mazur told him that if he were lying, he would arrest him and "throw the book at him."
At the close of the offer of proof, the court allowed the People to question Pedro regarding his taped statements in the presence of the jury. Upon continuing direct examination regarding his second taped statement, Pedro admitted that he told Officer Mazur that defendant informed Pedro that he threw the gym bag away after he shot the officer. Under cross-examination Pedro stated that defendant told him that he threw the bag away before he came to the fenced-in area at the end of the alleyway and before his encounter with the deceased. Defendant also told Pedro that when he could not take the officer's hitting him anymore, he reached for the officer's gun. Pedro stated that Officer Mazur told him defendant reached for the gun, not vice versa. Pedro also stated that Officer Mazur suggested to him that defendant kept shooting the gun into the deceased's body.
During redirect, Pedro stated that the police department told him to contact the State's Attorney's office. Pedro did contact and meet with the Will County State's Attorney. During the meeting, the Will County State's Attorney played both of Pedro's tape-recorded statements and asked if there were any additions, corrections or deletions to be made. Pedro replied at that time, "No." Pedro did not tell them about any problems with the taped statement until at trial.
The People then presented Officer Terrence Mazur. Officer Mazur stated that he took the tape-recorded statements of Pedro Palacios. As Officer Mazur read Pedro his constitutional rights, Pedro signed and initialed each right on the constitutional rights form.
During cross-examination, Officer Mazur stated that he asked Pedro to come back a second time on September 17, 1984, to get Pedro's responses on a tape regarding the gun and the gym bag. Officer Mazur stated that Pedro did tell him at the prior meeting that defendant had thrown the gym bag away while Officer Murrin chased him. Officer Mazur did put Pedro's version in his report but on the second session he wanted Pedro to put his version on a tape. Officer Mazur stated that he did not discuss Pedro's response prior to turning on the tape recorder.
Donald Havekost, a special agent with the Federal Bureau of Investigation, performed a neutron activation analysis on the swabbing samples from Officer Murrin's hands sent by Officer Randall Fleck, who gathered the evidence from the site. In light of the NAA findings, Agent Havekost concluded that the deceased's left hand was on or near the muzzle of a firearm when it discharged. The chemical amounts in the swabbings removed from the back of the deceased's hands were consistent with both hands' having been on or near the firearm when it discharged. Agent Havekost also concluded that the deceased's right hand could have been on or near the gun as it was discharged. Agent Havekost could not give an opinion regarding which hand was on the gun.
Officer Randall Fleck, a police officer with the City of Joliet for 10 1/2 years, photographed the area and gathered various items of evidence. After he carefully collected the gym bag, he observed that it contained a bandanna, a Smith and Wesson 9 millimeter semiautomatic gun with a clip in it, a spare clip, a pair of brass knuckles, a bottle of cologne, a pack of Life Savers candy, a comb, and a watch. The bag also contained a partially empty bottle of Listerine and a gray cap from a spray paint can. In the photographs taken at the scene, the body was found 16 feet north of the bag. The fence was directly south of the body.
Officer Michael Sheridan, a police officer for the City of Joliet for 7 1/2 years, was working the 3 to 11 shift on the night of the incident. He was patrolling in the area of the incident when, at 5 p.m., he heard a call on the squad car radio announcing that an officer was in foot pursuit and a later report that shots were heard. He found the deceased's gun 50 feet northwest of his body behind 1029 Antram on Draper. He also found a silver chain about two to three feet from the gun. However, under cross-examination he identified a similar chain as the one he observed that day at the scene, but the chain presented at trial was gold.
The People also presented Louis Silich, a police officer with the Joliet police department for 10 years. Officer Silich was working the 7 a.m. to 3 p.m. shift on September 12, 1984, as an evidence technician, but was called to report to work again at 5:15 p.m. and was instructed to go to the scene of the incident. At 1014 Draper, he found two medals and a gold chain on top of a sloped area between the garage at 1014 Draper and the garden plot. At the bottom of the sloped area and 55 feet north of the deceased, he found a .38 special revolver. Officer Murrin's body was on the east side of the fence and the gun was found on the west side of the fence. Officer Silich later went to the hospital and collected evidence from and the personal belongings of the deceased. Among the evidence collected, Officer Silich recovered a knife from a sheath on the deceased's left leg.
Dr. Larry Blum, a forensic pathologist for the county coroners in 11 Illinois counties, performed the autopsy on Officer Murrin. He observed that Officer Murrin had been shot five times and also had injuries consistent with blunt trauma injuries, mainly abrasions or scrapes as well as bruising on the skin. Officer Murrin had bruises and abrasions to his right upper lip below the nostril, another vertical mark on the right ear as well as a prominent scratch behind the right ear. There was no evidence of healing and the abrasions were fresh.
Dr. Blum also found superficial scrapes or scratches on the left upper arm, on the back of the left arm and on the left forearm and a scrape behind the thumb on the palm surface on the left hand. The deceased also had abrasions on the right upper arm and on the back of the right elbow. On the back of the neck and the front right side of the neck, there were four parallel abrasions. Dr. Blum observed fresh abrasions on the deceased's front right knee and two abrasions on the back of the left knee.
Dr. Blum also observed several gunshot wounds. The deceased had a gunshot wound two inches below the top of his head in the center of his forehead which traveled from right to left. Dr. Blum stated that the gunshot wound to the forehead was fatal and was inflicted at a distance of 6 to 24 inches, possibly farther. Another gunshot wound was in the right ear passing through the front of the ear and out the back, traveling from the left side to the right side with a downward trajectory. The gunshot wound to the right ear was not a fatal type and the range of fire for the ear wound was 6 to 24 inches. The gunshot wound to the right chest traveled from front to back toward the victim's left side at a 20-degree angle. It was not a fatal type of wound. The other chest wound to the right side was three inches below the uppermost wound traveling at a 60-degree angle downward. This wound was a fatal type inflicted within a six-inch firing range. The fifth wound was located on the left side of the chest traveling from left to right in a slightly downward angle. The firing range for this wound was greater than two feet.
The doctor gave an estimation "based upon common sense and medical knowledge" regarding the exact sequence of the gunshot wounds. He stated that the chest wounds were first because they produced a great deal of internal bleeding. If the head wound, which was fatal instantaneously, was first, it would have prohibited the victim from producing any significant amount of internal bleeding.
The doctor stated that the alcohol level found in Officer Murrin's blood was .043% and in Officer Murrin's urine was .02%. The doctor also stated that while .043% does not necessarily indicate intoxication, that level of alcohol may have different effects on individuals depending on whether or not that person is used to the effects of alcohol. A blood-alcohol level of .02 to .04 can have from no significant effect to a feeling of mild euphoria or a mild sense of well-being. If a person is accustomed to that level of alcohol, then the effects may be negligible.
The People presented Dr. Robert Hunton, a forensic scientist with the Bureau of Forensic Sciences Crime Lab in Joliet, who specializes in the field of firearms identification. In performing tests to determine the distance at which defendant shot Officer Murrin, Dr. Hunton observed that the two entrance bullet holes on the right side of the shirt above the pocket were from a gun which was shot at a distance of less than an inch. The bullet hole on the left side of the shirt near the pocket was caused by a bullet from a gun which was fired within four to six feet.
Larry Knott, a police officer who had been with the Joliet police department for 17 years, is a court liaison for the police department and the Will County State's Attorney's office. On August 21, 1984, his duty was to obtain a warrant charging defendant with aggravated battery, a felony, in the shooting of Frederick Ferguson.
Michael Broadwell, a friend of defendant, stated that on September 12, 1984, he saw defendant first at defendant's house around 11 a.m. After 20 minutes, Broadwell and defendant left on defendant's bicycle to go to a creek on Abe Street. Broadwell was carrying a 9 millimeter pistol which he obtained from defendant's basement. Defendant and Broadwell stayed at the creek for 1 1/2 hours to two hours. They made plans to leave the State once Broadwell was on parole from the work release center. While at the creek, they "got high" by sniffing spray paint and did some target practice. They then left for Johnny Garcia's house. When defendant and Broadwell arrived at the Garcias' house, only Johnny Garcia's brother Pauly was present. Johnny Garcia arrived later driving a green Buick. They stayed at the Garcias' house until it was time for Broadwell to return to the work release center. When Johnny Garcia gave Broadwell a ride, he was accompanied by Johnny's brother Pauly, defendant and Pepi Salazar, defendant's brother.
Thomas Stein, an officer with the Joliet police department for over four years, related a conversation he had with Officer Murrin on August 27, 1984. At that time they discussed the felony arrest warrant which charged defendant with aggravated battery in the shooting of Frederick Ferguson. Officer Stein told Officer Murrin that defendant might possibly be located on the east side of the City of Joliet and that he might possibly be with Johnny Garcia in Garcia's 1970 four-door green Buick Electra.
On May 21, 1985, Ruben Coronado, a police investigator with the City of Joliet, had picked up defendant in Laredo, Texas. Defendant had been found and arrested on the felony warrant for the instant offense in Mexico. On September 12, 1984, Officer Coronado radioed soon after the shooting of Officer Murrin that defendant might be in the car described at the scene and that the car was possibly owned by Johnny Garcia.
Officer David Gerdes, who had been with the City of Joliet police department for 13 years, was Officer Murrin's immediate supervisor on September 12, 1984. He was aware that Officer Murrin carried a knife on his leg which Officer Murrin had not directly requested permission to wear. According to Officer Gerdes, as well as other supervisors and division commanders, department policy guidelines did not prohibit the carrying of the type of knife worn by Officer Murrin.
Pamela Ann Murrin, wife of the victim, stated that on September 12, 1984, her husband was 32 years old and in excellent health. He was particularly happy on September 12 because he had just scored very high on a sergeant's test and was looking forward to becoming a sergeant. The only injury the victim had was an old scab on his knee. His uniform clothes on that date were in good condition. She knew of no drinking problem her husband had but knew that he did drink socially, and on occasions he would have a beer at lunch.
Stipulations were entered for other witnesses. Donna Metzer, a forensic serologist for the Illinois Department of State Police, analyzed various blood samples from the deceased and defendant as well as clothes items from both. In examining the deceased's pants, she found a tear on the right front knee area and a second tear on the right rear area of the pants. When she examined defendant's yellow sweatshirt found near the scene, she found several small areas of blood staining. On the left shoulder of the sweatshirt she found a small smear of human blood and on the lower right back, she found small droplets of human blood. Both areas of stains were applied from the outside and did not soak through the garment. The amount of blood was insufficient to determine the source. She also found two smears of human blood on the inside of the shirt on the left side. The quantity of this blood smear was also insufficient to determine the source.
The second stipulation was that of Jacqueline Fracaro, a fingerprint examiner for the State of Illinois, Bureau of Scientific Services at the Joliet Crime Lab. When examining the gun magazine recovered from the gym bag, she found four latent fingerprints which she determined to be those of defendant. She also recovered a latent fingerprint from a gray paint can cap and determined the print to be defendant's.
The third stipulation was that of Blair Shutts, a forensic scientist for the State of Illinois, Bureau of Scientific Services at the Joliet Crime Lab. When Shutts examined the yellow sweatshirt, the plastic wrap and the tennis shoes, he found that all had a silver gray paint on them which was similar in color and chemical reactivity. It was stipulated that Officer Rex Provenzale recovered the plastic wrap from Johnny Garcia's green Buick.
The remaining stipulations regarded who found each of the projectiles and other evidence recovered at the scene.
Eventually, defendant took the stand. He first stated that his birthday is February 20, 1966. After three years of high school he dropped out and went to work. He stated that in early August 1984, he was staying with his grandparents in Houston, Texas. During the three to four weeks he was in Houston, he did not contact his parents, only his brother Tony. Prior to living in Texas, and after returning to Illinois, defendant stayed with his brother Tony Silvas in New Lenox. He returned to Illinois either the 10th or 11th of September. He identified the gold chains and religious medals found at or near the scene as his.
Defendant also stated that on September 12, 1984, he left his brother's house by bike and traveled to his parents' house, where he later met with Broadwell. Defendant had his 9 millimeter gun with him but Broadwell ended up carrying it. Defendant's and Broadwell's versions of the events prior to and ...