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January 5, 1995


Appeal from the Circuit Court of Cook County. Honorable Richard E. Neville, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Cahill delivered the opinion of the court: Johnson* and Theis, JJ., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

A jury convicted defendant, Jose Murillo, of first degree murder and attempted first degree murder. The court sentenced him to 40 years in prison. On appeal, Murillo argues: (1) he received ineffective assistance of counsel; (2) the trial court erred in instructing the jury; and (3) the court abused its discretion in sentencing him. We affirm.

On June 30, 1990, at 2 a.m., four members and one retired member of the satan disciples gang were standing at the corner of 18th and Fairfield Streets in Chicago. A light blue LaMans drove past. The three males in the car put their arms outside the windows and made pitchfork signals, an indication that they were members of the satan disciples gang. The group at the corner responded with the same signal. The driver turned the car around and parked on the opposite corner. The passenger side faced the group standing on the corner. Two of the men on the street, Manuel Alvarez and Charles Monrial, walked to the car. They were both shot. Monrial was killed.

Police learned that the light blue LaMans belonged to Murillo. At 10:45 p.m. on June 30, 1990, Officer Spratte went to Murillo's house and told him that his car had been used in a homicide. He asked Murillo to accompany him to the police station. At midnight Murillo went with Spratte to the station. Murillo told Detective Mannina in an interview at 1:30 a.m. that his car had been stolen while parked outside his sister's apartment. Mannina left the station and interviewed Murillo's sister and her husband. They did not confirm Murillo's story. Mannina returned to the police station, arrested Murillo at 8:30 a.m., and advised him of his Miranda rights. Murillo said he understood his rights and agreed to make another statement.

At noon, Murillo made a statement admitting a role in the crime. His court reported statement and trial testimony are similar. Murillo said that, on the night of the murder, he was driving his car; co-defendants Figueroa and Gomez were with him. The men had been drinking, and Murillo said he was drunk. At 1:45 a.m., Figueroa told Murillo and Gomez that he, Figueroa, and his younger brother and nephew were chased and shot at earlier that day by members of a rival gang. Murillo became angry and got a gun. Gomez drove Murillo's car to 18th and Fairfield to find Alvarez and Vincent Tucker. Murillo believed these men had attacked Figueroa. Figueroa was in the back seat. Murillo was in the front passenger seat. The gun was on his lap. As they passed the satan disciples, Murillo false flagged that he was also a member of the satan disciples. Murillo testified that he froze when Alvarez and Monrial walked to the car, so Gomez seized the gun and fired at Alvarez and Monrial. Murillo later hid the gun.

Tucker identified Murillo at trial as the passenger in the front seat of the car. Alvarez identified Murillo as the person who fired the gun. The jury convicted Murillo of the first degree murder of Monrial and the attempted first degree murder of Alvarez.

Murillo first argues on appeal that he received ineffective assistance of counsel. To sustain a claim of ineffective assistance of counsel a defendant must show his counsel's representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for the error, the result of the trial would have been different. ( Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, 85 Ill. Dec. 441.) Judicial scrutiny of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Albanese, 104 Ill. 2d at 525, 473 N.E.2d 1246.

Murillo urges us to presume he was prejudiced based upon People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, 94 Ill. Dec. 514. There, our supreme court stated that where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." ( Hattery, 109 Ill. 2d at 461, 488 N.E.2d 513, quoting United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 104 S. Ct. 2039.) Murillo argues that his counsel failed to subject the prosecution's case to meaningful adversarial testing and was ineffective per se because he conceded Murillo's guilt when he stated in closing argument:

"It actually did not matter whether you believe [Murillo] fired or whether you believe the other boy fired, under accountability law, because the accountability law is a law that says he's responsible anyway."

In People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118, 131 Ill. Dec. 562, the supreme court held that Hattery does not stand for the proposition that it is "per se ineffectiveness whenever the defense attorney concedes his client's guilt to offenses in which there is overwhelming evidence of that guilt but fails to show on the record consent by defendant." Johnson, 128 Ill. 2d at 269, 538 N.E.2d 1118.

We do not read the remarks of Murillo's lawyer in closing argument as a failure to subject the prosecution to meaningful adversarial testing. He conceded that Murillo was accountable, but, unlike trial counsel in Hattery, he did not concede guilt to the charge to which Murillo pled not guilty and for which he was tried -- first degree murder. Counsel argued that the evidence only supported a conviction of a lesser offense -- second degree murder.

Defense counsel, in opening statement, cross examination of eyewitnesses, and direct examination of Murillo, tried to show that Murillo's conduct was the result of an intense passion provoked by Alvarez. Closing argument, read in this context, was consistent with a strategy imposed by the evidence established at trial. The evidence is overwhelming that Murillo was accountable. Murillo testified that he helped plan the shooting, retrieved the gun, went to the crime scene with the intent to shoot rival gang members, false flagged the sign of the rival gang, and hid the gun later. Counsel's only alternative to arguing in favor of second degree murder was the alibi of the stolen car -- an alibi that, even absent Murillo's statement, was confirmed by no one and contradicted by two eyewitnesses.

We find that Hattery does not apply and that Murillo must show prejudice under Strickland. The evidence in this case is not close. One of the two victims survived to testify at trial. Alvarez identified Murillo as the man who shot him. Tucker identified Murillo as the passenger in the car. Murillo's statement and testimony placed him at the scene of the crime. We find that any prejudice to Murillo was insufficient to support his claim of ineffective assistance and do not address whether trial counsel's performance fell below an objective standard of reasonableness. (See People v. Hillenbrand (1988), 121 Ill. 2d 537, 557, 521 N.E.2d 900, 118 Ill. Dec. 423.) But, we suggest that appellate defense counsel owes a duty of careful analysis to the trial court and court of review, if only to disabuse the trial court and court of review of the notion that appellate counsel is combing the record indiscriminately in search of vignettes which, when taken out of context, may support an argument for incompetency, but, when the whole record is reviewed, show a highly competent defense given the materials at hand.

Murillo also claims his trial counsel was ineffective because he withdrew the motion to suppress his statement before trial. He argues there was a "good chance" the court would have suppressed the statement. The argument overlooks the Hobson's choice that confronted trial counsel. Suppression of Murillo's version of the incident would have left him with nothing but a naked alibi defense, unconfirmed and contradicted by two eyewitnesses, who placed him at the scene, one as the shooter. With the statement in the record, which Murillo adhered to when he testified, trial counsel was able to argue that his client did not fire the weapon and was less culpable.

Murillo, moreover, has not shown there is a reasonable probability the trial court would have suppressed his statement on grounds that it was involuntary. A "good chance", whatever counsel means by the phrase, does not rise to a reasonable probability. Murillo voluntarily went to the police station. Detective Mannina testified that he advised Murillo of his Miranda rights and that Murillo indicated he understood those rights. Within three and a half hours, Murillo made his confession. He slept while at the station, was given food, and allowed to use the restroom. Murillo was 17 years old. He read his statement and corrected it for errors.

Read in its entirety, this record demonstrates a defense shaped by an able lawyer who understood, perhaps better than appellate counsel, the strategies imposed upon a criminal defense lawyer by the evidence and circumstances he faces.

Murillo next argues that the court erred when it instructed the jury. He argues that the jury was confused because the court gave the Illinois Pattern Jury Instructions for attempted first degree murder and a non-pattern instruction defining attempted murder. Murillo did not object to the instructions, or include any issue regarding jury instructions in his post trial motion. Failure to raise an instructional issue in a post trial motion waives the issue on review. ( People v. Smith (1993), 242 Ill. App. 3d 344, 346-47, 609 N.E.2d 857, 182 Ill. Dec. 323.) We decline to review the issue under the plain error doctrine (134 Ill. 2d R. 615(a)), because we do not believe the evidence was closely balanced or any substantial defect occurred. See People v. Enoch (1988), 122 Ill. 2d 176, 198, 522 N.E.2d 1124, 119 Ill. Dec. 265.

Murillo's last issue on appeal is that the court abused its discretion in sentencing him by (1) not considering his rehabilitative potential and (2) imposing a disparate sentence from his co-defendants. We disagree and uphold Murillo's sentence.

On review, the sentence is presumed proper; we will find an abuse of discretion only when this presumption is overcome by a showing of error. ( People v. Bowen (1985), 133 Ill. App. 3d 994, 997, 479 N.E.2d 997, 88 Ill. Dec. 977.) "Where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary." ( People v. Canet (1991), 218 Ill. App. 3d 855, 864, 578 N.E.2d 1146, 161 Ill. Dec. 500, quoting People v. Bergman (1984), 121 Ill. App. 3d 100, 109, 458 N.E.2d 1370, 76 Ill. Dec. 570.) Murillo points to no specific facts which the court refused to consider, and nothing in the record shows that the court considered inappropriate elements when it sentenced Murillo. We conclude that the court properly considered all the mitigation evidence, including Murillo's rehabilitative potential.

Murillo's co-defendant Figueroa received a 20 year sentence. Gomez received a seven year sentence in the juvenile system. When the court sentenced Murillo, it remarked:

"I believe that Mr. Murillo did fire the shots in the car, he was identified by the survivor of this shooting as the person who fired the gun, I do not believe his story that the juvenile who was driving the car reached over and grabbed the gun out of his lap because he was too nervous and upset to do it and he froze.

I think Mr. Murillo is a calculated shooter. I think he had that gun with him knowing that he was going to kill somebody that night, and I don't believe that he [froze] at all, he was in fact the leader of that group in that car, not Mr. Figueroa and not Mr. Gomez."

The court also considered that Murillo was convicted of attempted murder while Figueroa was acquitted of that charge.

The degree of each defendant's activity or participation in a crime should receive attention in passing sentence. ( People v. Morris (1969), 43 Ill. 2d 124, 131, 251 N.E.2d 202; People v. Madden (1978), 57 Ill. App. 3d 107, 115, 372 N.E.2d 851, 14 Ill. Dec. 572.) The supreme court has held that the person among co-defendants who actually inflicts the injuries resulting in death is the more culpable. ( People v. St. Pierre (1992), 146 Ill. 2d 494, 588 N.E.2d 1159, 167 Ill. Dec. 1029.) The court here properly considered the levels of participation of each defendant in the commission of this offense and sentenced Murillo according to his culpability.

We affirm the judgment of the trial court. As part of our judgment, we grant the State's request and assess the defendant $150 in costs for defending this appeal pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, 85 Ill. Dec. 514 and People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, 15 Ill. Dec. 759.


JOHNSON* and THEIS, JJ., concur.

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