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01/18/89 the People of the State of v. Juan Caballero

January 18, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JUAN CABALLERO, APPELLANT



SUPREME COURT OF ILLINOIS

533 N.E.2d 1089, 126 Ill. 2d 248, 128 Ill. Dec. 1 1989.IL.46

Appeal from the Circuit Court of Cook County, the Hon. Earl Strayhorn, Judge, presiding.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case. JUSTICE MILLER, specially Concurring. CHIEF JUSTICE MORAN joins in this special concurrence. JUSTICE RYAN, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

This case involves the petition of the defendant, Juan Caballero, under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.), challenging his convictions and sentences. Together with a codefendant, Luis Ruiz, the defendant was charged by an information filed in the circuit court of Cook County with the murders of three teenage males, Michael Salcido, Arthur Salcido, and Frank Mussa. Charges of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10-3(a)) regarding each victim were also filed against the defendants. The two cases were then severed, and the two defendants tried before a single Judge supervising two separate juries. Both defendants were convicted on all counts. Separate sentencing hearings were then held for the two defendants. The jury found that there existed one or more of the statutory aggravating factors (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(d), (g)) and that there were no mitigating factors sufficient to preclude the imposition of death. Thereafter the defendant was sentenced to death, as was Ruiz. On direct appeal we affirmed the defendant's convictions and death sentence. (People v. Caballero (1984), 102 Ill. 2d 23.) In a separate appeal, Ruiz' convictions and sentence were also affirmed. (People v. Ruiz (1982), 94 Ill. 2d 245.) The defendant's subsequent petition for post-conviction relief was dismissed without an evidentiary hearing in the circuit court of Cook County, and this appeal followed (107 Ill. 2d R. 651).

The facts of this case are adequately set forth in our opinion on the defendant's direct appeal and will be repeated here only where necessary. The defendant raises a number of claims concerning the fairness of his conviction and his sentence. The standard for the evaluation of these claims is clear. A Post-Conviction Hearing Act proceeding is not an appeal per se, but a collateral attack on a judgment. (People v. James (1986), 111 Ill. 2d 283, 290.) In order to prevail under the Act, the defendant must establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois. (People v. Griffin (1985), 109 Ill. 2d 293, 303.) The defendant is not entitled to an evidentiary hearing unless the allegations of his petition, supported where appropriate by the trial record or by accompanying affidavits, make a substantial showing that the defendant's rights have been so violated. (People v. Gaines (1984), 105 Ill. 2d 79, 91-92.) For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are to be taken as true. (People v. Cihlar (1984), 125 Ill. App. 3d 204, 208, aff'd (1986), 111 Ill. 2d 212; see also People v. Reeves (1952), 412 Ill. 555, 559.) For the sake of clarity, we consider the defendant's challenges to his convictions and his sentence under separate headings.

THE CONVICTIONS

The vast majority of the defendant's challenges to his convictions concern his counsel's performance at trial. The defendant claims that defense counsel erred by: (1) assuming a "belligerent and argumentative attitude" toward the court, (2) antagonizing the jury in his opening statement, (3) failing to present his strongest witnesses or evidence first, (4) inadequately cross-examining prosecution witnesses, (5) presenting a weak and incoherent closing argument, (6) failing to move for a directed verdict at the close of the State's case, and (7) failing to "life-qualify" the jury during voir dire. None of these contentions, in our opinion, serves to establish that the defendant was deprived of his constitutional right to the effective assistance of counsel at trial.

The general standard for determining whether a defendant has received effective assistance of counsel at trial or at a death penalty hearing has two components: deficiency and prejudice. The defendant must prove: (1) that his counsel made errors so serious, and his performance was so deficient, that he was not functioning as the "counsel" guaranteed the defendant by the sixth amendment to the United States Constitution, and (2) that these deficiencies so prejudiced the defendant as to deprive him of a fair trial, a trial whose result is reliable. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) The standard for assessing claimed deficiencies in an attorney's performance is that of "reasonably effective assistance" which is within the range of "competence demanded of attorneys in criminal cases." The standard is one of objective reasonableness, under "prevailing professional norms." (466 U.S. at 687-88, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65.) To establish a deficiency, the defendant must overcome the strong presumption that the challenged action or lack of action might be the product of "'sound trial strategy.'" 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.

Even assuming a deficiency, the defendant must still demonstrate prejudice. Under Strickland, a defendant who demonstrates that his counsel's trial performance fell below prevailing professional norms must also show that there is a "reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.) As the Supreme Court noted in Strickland, claims of ineffectiveness can often be disposed of on the ground that the defendant suffered no prejudice from the claimed errors, without deciding whether the errors were serious enough to constitute less than reasonably effective assistance. (466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) As is the case with many other defendants who make similar claims, the defendant, in his argument, has attempted to reverse this procedure. He dwells heavily on the alleged deficiencies in trial counsel's performance but makes little attempt to demonstrate to a reasonable probability that, absent these deficiencies, the jury would have entertained a reasonable doubt as to the defendant's guilt. Since most of the claimed errors concerned relatively trivial matters, and since the evidence of the defendant's guilt was substantial if not overwhelming, the defendant was not prejudiced by any of the errors alleged.

It must be remembered that the defendant gave a detailed confession of his guilt, which was admitted at trial. In this confession he told how he, together with three companions, abducted the three victims, who had claimed to know members of a rival street gang. In the confession he admitted that he personally stabbed and cut the throat of one of the victims. Extensive physical and forensic evidence corroborated many of the details of the confession. The prosecution also introduced evidence that the defendant had made a less specific admission of guilt to a cell mate.

The defendant testified in his own behalf, repudiating his confession and asserting that it was extracted from him by force. He also presented the testimony of his mother and of two other, less important witnesses. Throughout the trial his counsel attempted to show that the confession was involuntary.

It is against this factual background that most of the defendant's claims of ineffective assistance must be Judged. In most cases the defendant has not even argued, much less demonstrated, a reasonable probability that the jury would have found the defendant not guilty had his counsel acted as the defendant now wishes that he had. For example, the defendant maintains that trial counsel's "belligerent and argumentative" attitude towards the trial Judge may have alienated the jury. Since all but one of the incidents of "belligerence" occurred outside the presence of the jury, it is difficult to understand how they could have affected, let alone changed, the jury's verdict. But in any event the allegation that the jury would have found the defendant not guilty if the relationship between defense counsel and the trial Judge had been more amicable does not ring true.

It is undeniable that matters of presentation and style may have some subliminal effect on a jury. But we must normally presume that a jury has been persuaded by the strength of the evidence and not by the eloquence of counsel. Unless counsel's demeanor falls vastly below professional standards, and unless we can say to a reasonable probability that this deficiency caused a jury which would have acquitted to convict, we cannot and should not reverse. Besides, it is difficult to determine prevailing professional norms on matters which are so inherently subjective. One man's belligerent argumentativeness is another man's vigorous advocacy.

These same considerations apply to most of the remainder of the defendant's claims. We cannot say, to a reasonable probability, that the jury would have acquitted the defendant if defense counsel had not said to the jury in his opening that:

"if you can[not] consider it in your mind the possibility that a youngster can be so treated in a police station of America, in the State of Illinois and County of Cook, in Chicago in the police station at Western and Belmont, then you might as well get up from here and find Juan Caballero guilty now."

Taken in context, this statement was a rhetorical device. It emphasized to the jury the importance of keeping an open mind on the question of whether the defendant had been beaten so as to make him confess. Even assuming, as the defendant now maintains, that the jury took this statement as an insult, we cannot say to a reasonable probability that they would have acquitted in the absence of this "insult." Similarly, we cannot say to a reasonable probability that the jury would have acquitted had they heard the defendant's testimony first, rather than after two other rather ineffectual witnesses. We must assume that the jury was capable of assessing the defendant's credibility without reference to the strength of the remainder of the defense case. It is difficult to believe, as the defendant claims, that the jury lost interest in the defense case and failed to pay attention to the defendant's testimony simply because the defendant presented some weaker witnesses first.

We are also uncertain, and the defendant's brief does not inform us, how the defendant was prejudiced by certain deficiencies in defense counsel's cross-examination of the State's witnesses. While the defendant claims that this cross-examination was "long, confusing, and harmful to the defendant," he fails to specify with any precision what a shorter, clearer, and more helpful cross-examination would have accomplished. The general claim that the cross-examination "served neither to elicit favorable testimony nor to impeach the State's witnesses" is meaningless without some statement of what favorable testimony could have been elicited or how the State's witnesses could have been impeached.

The only specific instance of "harmful" cross-examination cited by the defendant involves a witness who found a knife, allegedly the murder weapon, in a snowbank. On cross-examination counsel for Ruiz asked the witness whether he had cleaned the knife or had seen any blood on it. The witness replied that he had not. Counsel for the defendant then cross-examined the witness at some length, establishing that the witness "may have" wiped off the blade of the knife, but probably did not wipe the handle.

So far as we can understand the defendant's argument, he is asserting that the testimony elicited by his counsel's cross-examination was less favorable because it tended to provide a nonexculpatory explanation for the absence of blood on the knife. It may be that in this respect the examination slightly strengthened the State's case. However, even this tentative Conclusion is subject to some doubt: the contradictions and hesitation the witness displayed under defense counsel's cross-examination might well have damaged his credibility. But the issue was in any case of small importance. The State maintained that the blood was washed off in the snowbank; counsel for the defendant argued in summation that the absence of blood on the handle of the knife (which had been sticking out of the snowbank) did not jibe with the extremely violent character of the crimes. Whether the witness had or had not cleaned the blade of the knife did not greatly matter.

We are also unpersuaded by the defendant's claim that he was prejudiced by his counsel's closing argument. The defendant claims that his counsel unnecessarily emphasized the horror of the crime, spent too much time presenting the prosecution's case, did not focus on the crucial issues, and failed to mention the State's burden of proving the defendant guilty beyond a reasonable doubt.

We have carefully read the defense counsel's closing argument. While it is not a model of clarity or conciseness, neither is it an "abdication" of the defendant's position, as the defendant now suggests. In fact, most of the defendant's criticisms of it are based on isolated passages, unfairly extracted from their context. Defense counsel's references to the horrible nature of the crimes, for example, occurred in three contexts. Defense counsel first argued that the jury should not let the gruesome nature of the victims' injuries divert them from their duty to dispassionately decide whether or not the defendant was guilty. Second, defense counsel argued that given the number and severity of the stab wounds suffered by one of the victims, the statement in the defendant's confession that this victim had begged for mercy after being stabbed many times was absurd. Third, defense counsel argued that given all the bloodshed, and the great effort that would have been required had the perpetrators attempted to clean the entire car, the absence of the defendant's fingerprints anywhere on the car was evidence of his innocence.

Similarly, the allegation that defense counsel spent too much time presenting the prosecution case is without merit. More specifically, the charge that defense counsel devoted one fourth of his summation to a mere recitation of the defendant's confession is a serious distortion of the record. In fact, while defense counsel did read from the confession, he punctuated his reading with trenchant attacks upon its reliability. He argued, for example, that the defendant, a "street kid," was unlikely to have used police jargon such as the phrase "multiple stab wounds." He argued that a passage in the confession which suggested that one of the victims lay passively in the snow instead of trying to escape conflicted with the "defense wounds" that had been found on the victim's hands. He argued that no one was likely to remember such details as the exact position of the bodies one week after the crime. He argued, in short, that the statement was fabricated by the police and was not the defendant's voluntary confession.

Nor do we agree entirely with the allegation that the summation was confused, poorly organized, and lacking a focus on the crucial issues. That there is some merit to this contention is obvious from some of the passages quoted by the defendant. (One example is the statement: "I'm going to start this where I finish, I'm going to finish this and start it where I finish and vice versa.") We also agree that the passage in defense counsel's summation that dealt with a relatively minor witness, Nicholas Roggy, was not terribly convincing. Even as to that passage, however, defendant has not stated accurately the full context: defense counsel used an admittedly minor inconsistency in the witness' testimony to argue generally that the jurors should be skeptical of the State's case. The remaining instances of confusion and disorganization, while real, are typical of those often found in any speech which the speaker has not memorized word for word. But the more serious charge, that the summation neglected issues important to the defendant, is simply unfounded. Defense counsel devoted most of his summation to a detailed attack on the State's case, including the physical evidence and the defendant's confession. These were the key issues. The defendant has not specified which other issues defense counsel should have, but did not, address.

The last charge against defense counsel's summation is that he failed to mention the State's burden of proving the defendant guilty beyond a reasonable doubt, thereby losing a "powerful psychological tool." Even assuming that it is incompetent in all instances for defense counsel to fail to emphasize the weight of the prosecution's burden, this charge is also not well-founded. While defense counsel neglected to mention the words "reasonable doubt," he did stress both "the presumption of innocence," and that the "State has the burden of proof." We cannot say to a reasonable probability that the jury, which was adequately instructed as to the State's burden, would have acquitted the defendant if defense counsel had used the words "reasonable doubt."

The cases of People v. Hattery (1985), 109 Ill. 2d 449, People v. Redmond (1972), 50 Ill. 2d 313, and People v. De Simone (1956), 9 Ill. 2d 522, all cited by the defendant, are distinguishable. In each case, defense counsel abdicated his responsibility by directly admitting the defendant's guilt. In Redmond, for example, defense counsel said: "Well, am I selling someone the defendant's guilt? I think so. Guilty, yes. Sure, guilty." (Redmond, 50 Ill. 2d at 316.) In De Simone, similarly:

"[defense counsel's] closing remarks . . . wandered to many irrelevant and confusing matters and, to a greater extent than seems reasonable, were used to suggest to the jury that defense counsel were overmatched by the prosecutors, that they were not capable of defending a criminal case, that their clients were guilty, and that there was, in fact no legal defense which could be made for defendants." De Simone, 9 Ill. 2d at 530.

In Hattery, defense counsel averred in his own opening statement:

"'We are not asking you to find Charles Hattery not guilty. At the end of your deliberations, you will find him guilty of murder. We are asking you to consider the evidence that you hear today and in the next few days to explain why he did the horrible thing that he did. Once you have found him guilty, we will proceed and you will find him eligible for the death penalty. The question, and the only question facing you, will be whether to impose ...


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