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03/29/89 the People of the State of v. Mario Flores

March 29, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

MARIO FLORES, APPELLANT

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, THE HON. JAMES M. BAILEY AND HON. ROBERT

v.

BOHARIC, JUDGES, PRESIDING. REHEARING DENIED MAY 26, 1989. 1989.IL.413



SUPREME COURT OF ILLINOIS

538 N.E.2d 481, 128 Ill. 2d 66, 131 Ill. Dec. 106

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

Following a jury trial in the circuit court of Cook County, the defendant, Mario Flores, was found guilty of the armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2) and murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) of Gilbert Perez. Upon the State's motion, a death penalty hearing was held, and the jury found that there existed one or more of the aggravating factors set out in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)) and that there were no mitigating factors sufficient to preclude a sentence of death. The trial court then sentenced the defendant to death, but the sentence was stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). Before that appeal was heard, the defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.), which was denied after an evidentiary hearing. An appeal from that judgment was consolidated with the defendant's appeal of his conviction and sentence, and both appeals are now before this court.

Evidence at trial showed that on January 1, 1984, the body of the victim, Gilbert Perez, was discovered in an alley at 2259 West St. Paul Avenue in Chicago. Next to the body were four spent shotgun shells and another shell was found three to six feet away. It was stipulated that the cause of death was multiple shotgun wounds resulting in massive injuries to the head, chest and internal organs.

Nancy Lebron testified that she lives in a second floor apartment at 2351 North Avenue in Chicago, which overlooks the intersection of North and Western Avenues. On January 1, 1984, at approximately 2 a.m., Lebron heard what sounded like an auto accident, and looking out her window, she saw a car which had been driven against an electrical light pole at the corner of the intersection. Shortly thereafter, the defendant and Victor Flores, who is not related to the defendant, drove up in a wine colored car and parked a short distance from the intersection. They were later joined by another man, who was driving a black and green car. Gilbert Perez, whom Lebron knew as "Blue Eyes," got out of the car that was parked against the electric pole and was approached by the men in the other two cars.

One of the men put his arms around Perez and, she said, talked to him "as if they were good friends." Meanwhile, the defendant returned to the car he was driving, removed a shotgun from the trunk, and pointed it in the direction of Perez. After one of his companions shouted at him, the defendant put the gun into the backseat of the car and returned to the group. Perez walked to the wine colored car and sat in the front passenger seat. The defendant sat in the backseat and Flores drove away. Lebron stated that as the wine colored car drove off following the green and black colored car, she wrote down its license plate number, "AA 959," and handed it to her husband.

Rinaldo Guevara, a Chicago police officer and gang crimes specialist with the Chicago police department, testified that on November 10, 1984, he spoke with Lebron, after receiving an anonymous telephone call from a man who said Lebron might have information concerning Perez' death. From an array of photographs, Lebron identified a photograph of the defendant and that of Sammy Ramos and stated that she had seen them with the victim at the intersection of North and Western Avenues on January 1, 1984. Lebron also identified the defendant from a lineup as the man whom she saw carrying the shotgun, and Victor Flores, as the man that was driving the wine colored car when it left with Perez. Guevara testified that the defendant was arrested driving a burgundy, 1982 Buick Regal with the license plate number "AA 9559," which was registered to Lena Flores, the defendant's sister.

Victor Flores testified that in the early morning hours of January 1, 1984, the defendant, driving his sister's 1982 Buick Regal, picked him up. As they were driving down North Avenue, a car driven by Perez passed them at a high rate of speed. They stopped at the intersection of North and Western Avenues where Perez' car, which appeared to have been in an accident, rested against an electric light pole. A few minutes later, Harry Gomez arrived and parked next to them. While they were talking, Gilbert Perez got out of his car and began shouting at a woman in the intersection who was involved in the accident. Flores stated that he, the defendant and Gomez walked to the intersection and approached Perez, who began to threaten them. At one point Perez made a "pitchfork" signal, which, according to Flores, meant Perez was a member of a street gang known as the Latin Stylers.

Flores testified that the defendant returned to his car, removed a shotgun, and approached the group. After Gomez confronted the defendant, he put the shotgun into the backseat of the car. Gomez then put his "arm around" Perez and led him to the defendant's car. Perez sat in the front seat and the defendant, with the shotgun in his hand, sat in the backseat. Flores drove the defendant's car and followed Gomez several blocks until they stopped on St. Paul Avenue. Flores testified that during the ride the defendant told Perez that Gomez was "Mousey" from the "D's." He explained that the "D's" were a street gang affiliated with a larger gang known as the "Folks," and that they were enemies of the gang he and the defendant belonged to, the Latin Brothers.

After the defendant, Gomez and Perez got out of the cars on St. Paul Avenue, Flores drove the car approximately 40 feet, and as he was turning the car around, he heard "four or five" gunshots. In his side, rearview mirror, Flores saw Perez lying on the ground and the defendant standing next to the body with the shotgun in his hand. Gomez was bending over Perez touching his "upper neck." Flores stated he then drove away but Gomez and the defendant caught up with him and directed him to Gomez' house. There, he saw Gomez with a "handful of chains" (chain necklaces) that Gomez said belonged to Perez.

Sammy Ramos testified on behalf of the State under a grant of immunity. On direct examination, he stated that he could not recall having a conversation with the defendant concerning the death of Perez. Ramos stated that he did recall testifying before the grand jury on November 13, 1984, but could not recall the content of his testimony. After receiving a transcript of the grand jury proceedings to refresh recollection, Ramos acknowledged that it contained an accurate description of his grand jury testimony. Upon further questioning, Ramos acknowledged he testified before the grand jury that on January 7, 1984, the defendant told him that on New Year's Eve, he and Victor Flores encountered Perez and Harry Gomez at the scene of an accident at the intersection of North and Western Avenues. The defendant said he became angry after Perez started swearing at a woman who was also involved in the accident. He removed a shotgun from the trunk of his car but put it back after Gomez told him to do so. Gomez then told Perez that he was a member of the "Folks" gang, whereupon Perez stated that he was "Blue eyes from the Stylers." The defendant said that the four men drove to Western Avenue and St. Paul Avenue, where he shot Perez six times and Gomez took the victim's chain necklaces from his body.

At the close of the evidence, the jury found the defendant guilty of murder and armed robbery. Thereafter, a hearing was held on the State's motion to seek the death penalty. The jury found the defendant subject to the death penalty, being 18 years of age or older at the time of the murder and having killed the victim in the course of a forcible felony, to wit, armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)).

At the second phase of the hearing, the State presented in aggravation evidence of the defendant's juvenile adjudications for retail theft, criminal trespass of a vehicle, and possession of a stolen vehicle. Each of these adjudications resulted in the defendant's being placed on probation. The State also presented the testimony of Rinaldo Guevara, who stated that he had known the defendant for five years and that the defendant is a "hardcore" member of the Latin Brothers street gang. Louis Rosero testified that on August 5, 1984, the defendant stopped him on the street and asked if he would accept a set of tires in lieu of payment for a debt the defendant owed him. The defendant told Rosero to meet him in an alley in back of his father's house. When he arrived, the defendant shot him in the chest five times and twice in the back. As a result, Rosero was rendered a paraplegic and is permanently confined to a wheelchair.

In mitigation, the defendant presented several witnesses who testified to his accomplishments as a high school swimmer and diver. Several witnesses testified to the defendant's good conduct while in custody awaiting trial and his willingness to counsel other inmates. The defendant testified that his life should be spared because he could be of great help to young people coming from "the streets" as he did. The jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty, and the defendant was sentenced to death.

In appeal number 62398, which is the direct appeal from the convictions, the defendant argues that his convictions should be reversed and a new trial ordered on several grounds. First, the defendant contends that he was denied the effective assistance of counsel in violation of the sixth amendment to the Constitution of the United States.

Whether the defendant received ineffective assistance of counsel must be determined under the standards enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, which were adopted by this court in People v. Albanese (1984), 104 Ill. 2d 504. Under Strickland, a defendant claiming ineffective assistance of counsel must show: (1) that advice of counsel fell outside the "range of competence demanded of attorneys in criminal cases" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.

There is a strong presumption that counsel's performance falls within "the wide range of reasonable professional assistance." (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) As the Court in Strickland explained:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065, quoting Michel v. Louisiana (1955), 350 U.S. 91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164.

It is the defendant's contention that defense counsel was incompetent on the ground that, inter alia, he failed to properly cross-examine one of the State's witnesses, Nancy Lebron. He says that defense counsel should have attempted to impeach Lebron's testimony by questioning her on the ability to identify the defendant after seeing him from her second floor apartment window. The record shows, however, that defense counsel vigorously cross-examined Lebron on her powers of visual observation and also on the 11-month delay between the time she was informed that Perez was murdered and when she notified the police. Too, defense counsel presented the testimony of several witnesses in an effort to impeach her credibility. One of defense counsel's investigators testified that he interviewed Lebron prior to trial and that she had told him that she was unable to identify anyone who was involved in the accident in front of her apartment. The defendant has failed to demonstrate, on the ground of counsel's cross-examination of Lebron, representation which falls below an objective standard of reasonableness.

The defendant contends too that he was denied the sixth amendment guarantee of conflict-free representation of counsel because at the time of trial, defense counsel also represented one of the State's witnesses, Sammy Ramos. He says that counsel's dual representation raised a per se conflict of interest which required counsel to withdraw as his attorney, and because counsel did not, he was denied a fair trial.

The record shows that before Ramos took the stand to testify, defense counsel stated:

"I have represented Sammy Ramos previously. His father contacted me when he learned he was coming back here. He was brought to your courtroom about a week or so ago, at which time he asked to speak to me, and he told me that he doesn't want to testify.

I told him that being Mario's attorney, I would have a conflict in consulting with him. So, my recommendation would be -- I believe there is a reluctance on his part to testify.

I have talked with his wife, and I talked with his father. I think that, maybe, it would be best if we had a public defender or something here, if we could summon one here to consult with him to testify or let him know what his rights are."

Ramos stated that he intended to exercise his fifth amendment right and remain silent. The court thereupon ordered that the cause be held over until the following day and appointed an assistant public defender to represent Ramos.

It is clear, of course, that the right to effective assistance of counsel under the sixth amendment to the Constitution of the United States entitles a criminal defendant to the undivided loyalty of counsel, free from conflicting interests or inconsistent obligations. (Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; People v. Washington (1984), 101 Ill. 2d 104.) Where defense counsel has represented a State's witness, a per se conflict of interest exists if "the professional relationship between the attorney and the witness is contemporaneous with counsel's representation of the defendant." (People v. Free (1986), 112 Ill. 2d 154, 168. See also People v. Robinson (1979), 79 Ill. 2d 147, 161; People v. Strohl (1983), 118 Ill. App. 3d 1084, 1092.) In order to assure and protect a defendant's rights, the defendant need not show prejudice in order to justify a reversal of his conviction if the attorney representing him has an actual or possible conflict of professional interests. People v. Washington (1984), 101 Ill. 2d 104, 110.

Contrary to what the defendant asserts, nothing in the record shows that defense counsel represented Ramos at the time of defendant's trial. While defense counsel stated that he had "previously" represented Ramos, he did not say that he represented him at that time or concerning Perez' murder prior to trial. The defendant has failed to show an actual or per se conflict of interest on the part of defense counsel.

The defendant contends, however, that the trial court erred in failing to question defense counsel concerning the extent of his representation of Ramos to ascertain whether the risk of conflict was sufficiently strong to constitute a per se conflict of interest warranting the appointment of separate counsel.

Where a potential conflict arises and is brought to the attention of the trial court, duty devolves upon the trial court either to appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant the appointment of separate counsel for the defendant. (Holloway v. Arkansas (1978), 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178; People v. Spreitzer (1988), 123 Ill. 2d 1, 18.) We Judge that the trial court took adequate steps under the circumstances to ascertain defense counsel's involvement in the representation of Ramos. In light of the fact that defense counsel stated that he did not represent Ramos and that Ramos stated that he intended to assert his fifth amendment rights and remain silent, the circuit court did not err in failing to question defense counsel further on the matter and in appointing a public defender to represent Ramos.

Where a per se conflict of interest is not established, it is the defendant's burden to show an actual conflict of interest and to demonstrate prejudice. People v. Free (1986), 112 Ill. 2d 154, 169; People v. Davis (1983), 97 Ill. 2d 1, 16.

The defendant argues that he was prejudiced by the fact that defense counsel was precluded from effectively cross-examining Ramos for fear of revealing confidential information imparted to him during their former attorney-client relationship. He says there was incompetence of defense counsel in his failure to call Mirda Alvarez and Lucy Jiminez after they allegedly overheard an assistant State's Attorney tell Sammy Ramos outside the courtroom that he would get an extra year in the penitentiary if he did not testify against the defendant.

Where a claim of conflict of interest is based on the prior representation of a prosecution witness by defense counsel, the court should examine the possibility that privileged information acquired from the witness might not have been used to impeach the witness though it would have been relevant in cross-examination. (See United States v. Jeffers (7th Cir. 1976), 520 F.2d 1256, 1264-65.) The defendant does not, however, show that counsel possessed information obtained from Ramos which might have hampered his cross-examination of the witness. Absent evidence to the contrary, we will not speculate that counsel possessed such information, or if he had, that he chose not to use it for impeachment.

In any event, the defendant has also failed to show that defense counsel's cross-examination was deficient. It must be borne in mind that Ramos did not testify to anything unfavorable to the defendant. Ramos' grand jury testimony was damaging to the defendant but, at trial, Ramos stated he could not recall what his testimony was or whether the defendant ever told him that he had shot Perez. It was only pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1), and over defense counsel's objections, that the State was able to admit Ramos' grand jury testimony. Under the circumstances, there is very little defense counsel could have cross-examined the witness upon which would have been favorable to the defendant. Defense counsel did, however, elicit on cross-examination statements from Ramos that he had known the defendant for 10 years and that he did not believe that the defendant would shoot Perez. We cannot say that the defendant was prejudiced by defense counsel's cross-examination of Ramos or that counsel had opportunities for cross-examination he did not use.

Nor can it be reasonably argued that defense counsel's failure to call Alvarez or Jiminez as witnesses so prejudiced the defendant that he was denied a fair trial. In general, whether to call a particular witness is a matter of trial strategy (see People v. Ashford (1988), 121 Ill. 2d 55, 74), and our decisions have held that an ineffective assistance of counsel claim "'which arises from a matter of defense strategy will not . . . support a claim of ineffective representation.'" (People v. Ashford (1988), 121 Ill. 2d 55, 74, quoting People v. Madej (1985), 106 Ill. 2d 201, 214.) It is clear from the record that Ramos was a reluctant witness, for he immediately exercised his fifth amendment right to remain silent, and only after he was granted immunity, did he testify. The prospective testimony of Alvarez and Jiminez would really have been to the same effect, that is, that Ramos was unwilling to testify, so there would be little impeachment value in the testimony of those witnesses. Thus, we cannot say that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Strickland (1981), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.

It is also the defendant's contention that the trial court erred in admitting the hearsay testimony of Sammy Ramos given before the grand jury. Over defense counsel's objection, the trial court allowed the State to present Ramos' hearsay testimony pursuant to section 115-10.1 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1), which provides:

"In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at the ...


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