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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 ...

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