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March 23, 1995


The Honorable Justice Heiple delivered the opinion of the court: Justice Freeman, partially concurring and partially dissenting: Justice McMORROW joins in this partial concurrence and partial dissent.

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, the defendant, Guinevere A. Garcia, was convicted of first degree murder by the jury, as well as unlawful use of a firearm by a felon by the trial court. The defendant waived her right to a jury for the sentencing phase of her trial. After presentation of evidence by the State and the defendant, the trial court found insufficient mitigating factors and sentenced the defendant to death, as well as a term of 10 years for the unlawful use of a firearm by a felon. Defendant's death sentence was stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603). We affirm defendant's convictions and sentences.

On appeal to this court, defendant argues that: (1) she was too intoxicated to knowingly and intelligently waive her Miranda rights; (2) her statements during processing were inadmissible responses to interrogation after her Miranda warnings previously given had become stale; (3) the trial court erred in only allowing seven peremptory challenges after defendant had waived her right to have a jury sentence her; (4) she should have been allowed to testify at trial about the statements of the victim to her to show she had shot the victim under a sudden and intense passion that he had provoked; (5) the trial court should have offered defendant's tendered instruction that "a voluntary act is a material element of every offense"; (6) the trial court improperly weighed the aggravating and mitigating evidence in determining that defendant should be sentenced to death; (7) the trial court improperly denied defendant the right to allocution; and (8) the Illinois death penalty statute is unconstitutional.


The following facts were adduced at the guilt and sentencing phases of defendant Guinevere Garcia's trial. Only facts and testimony relevant to the resolution of issues raised by the defendant are summarized below.

In March of 1991, the defendant, Guinevere Garcia, was released from the Illinois Department of Corrections after serving 10 years of a 20-year sentence for the murder of her 11-month-old daughter and for four aggravated arsons. Shortly after her release, she married George Garcia (the victim), 26 years her senior, for the second time. The defendant had met George Garcia while she was a prostitute. The defendant lived with her new husband in Bensenville for several weeks before leaving him and moving in with her grandparents in Chicago. Defendant then commenced a relationship with John Gonzalez, who was a security guard with the Chicago Housing Authority.

On July 22, 1991, the defendant was at her grandparents home drinking alcohol on the porch with her uncle, John Coutee, her ex-boyfriend, Mike Garber, and her new boyfriend, John Gonzalez. Having left for a while, Gonzalez later returned to the defendant's residence and she left with him early the next morning around 12:15 a.m. on July 23, 1991. They drove to Gonzalez's place of work, where he learned that he was too late for his shift and that his replacement had arrived. They then went to defendant's bank to retrieve money, but were unsuccessful. Defendant then directed Gonzalez to drive to Bensenville where her husband was living, though she did not tell Gonzalez exactly where they were headed or whom she intended to see. She merely stated that she knew where they could get some money.

Upon arriving at the parking lot of her husband's apartment building, defendant saw him and said hello. She then grabbed Gonzalez's .357 Magnum pistol, which was between her and Gonzalez in the front seat, got out of the car and forced her husband to turn around and get into his pickup truck. While seated in the truck, an argument immediately ensued during the course of which there was allegedly a struggle for the gun. The defendant then shot the victim at point-blank range one time in the chest. He staggered out of the truck and fell onto the pavement where he bled to death. Before leaving the scene, she took the keys to his truck. According to Gonzalez, the entire incident in the truck lasted approximately 30 seconds. When the defendant returned to the car, she told Gonzalez, "That motherfucker deserves to die."

The defendant drove Gonzalez's car from the murder scene back to her grandparents' house in Chicago. During the drive, defendant discarded the empty shell casing out the window. After she arrived home, she commenced calling the victim's answering machine starting at 3:39 a.m. In the course of these calls, defendant left messages for George expressing her love for him. Throughout the early morning, defendant continued to drink.

Later that morning, after the Bensenville police department learned of the victim's murder, the defendant and Gonzalez came voluntarily to the Bensenville police department to answer some questions. Defendant's uncle, John Coutee, drove the car. During the trip, the defendant allegedly consumed four beers. Upon reaching the police department at approximately 8:15 a.m., defendant answered questions until she left the station around 12:30 p.m. During the course of her answers, defendant voiced several times that she wanted to get the person responsible for her husband's death. She also told her uncle that she believed John Gonzalez was the killer.

Defendant and Gonzalez left the police station and headed home to Chicago, again driven by Coutee. During the ride home, defendant consumed two or three more beers. Several hours after arriving home, defendant and Gonzalez went to the Beehive Lounge to have some drinks. An hour or so after arriving at the Beehive Lounge, defendant telephoned the Bensenville police from a pay phone and stated that Gonzalez had just told her that he had killed her husband so he could have the defendant all to himself. When the police arrived at approximately 4:30 p.m., defendant pretended to be overcome with grief and anger. Both defendant and Gonzalez were arrested and read their Miranda warnings, which defendant acknowledged she understood. The Bensenville police told defendant she was not really under arrest but to go along with the ruse for Gonzalez's sake. They were both then taken to the Bensenville police station.

At 6 p.m., defendant was again issued Miranda warnings, signed a card indicating that she had read and understood her rights, and proceeded to give a handwritten and tape-recorded statement to the police stating that Gonzalez had killed her husband. In a separate room, Gonzalez told the police that it was the defendant who had shot the victim. At 10:30 p.m., defendant was informed that she was under arrest for the murder of her husband, George Garcia. It is uncontroverted that, up to this point, defendant was not under arrest and believed that she could leave at any time. She was once again issued Miranda warnings, which she acknowledged she understood and then produced a written confession admitting that it was she, and not Gonzalez, who had shot her husband.

Several hours after defendant's confession, she was processed by Officer Neuberg at the Bensenville police station. Defendant was shaking, thus making it difficult for Neuberg to fingerprint her. Neuberg asked the defendant why she was shaking and the defendant answered that she had just shot her husband. Neuberg then asked defendant what kind of gun she had used and where she had gotten it, to which the defendant answered it was a .357 Magnum and that she had gotten it from a friend.

Prior to her trial for first degree murder and unlawful use of a firearm by a felon, defendant moved to suppress her statements and confession, arguing that she was too intoxicated to knowingly and intelligently waive her Miranda rights. Additionally, defendant sought to suppress the statements made in response to Officer Neuberg's questions because her Miranda warning at 10:30, if valid, had gone stale. The trial court denied all these motions. Also, because defendant waived her right to have a jury impose her sentence, wishing only to have a jury for the guilt phase of the trial, the trial court allowed only seven peremptory challenges instead of 14, to which the defendant objected. Defendant did not, however, exhaust all seven of the challenges that she was allowed.

At trial, various persons testified to the foregoing facts. In addition, defendant attempted to introduce the content of the conversation between her and her husband before she shot him to establish that she killed him while under a sudden and intense passion resulting from an intense provocation. The trial court, however, refused to allow her to testify as to the victim's words. Defendant was, however, allowed to testify as to words she spoke in the conversation, as well as about the alleged physical altercation between the defendant and the victim as they struggled over the gun.

After the close of all the evidence, the jury was instructed on first degree murder, second degree murder and voluntary manslaughter. The trial court refused defendant's tendered non-Illinois Pattern Jury Instruction that a voluntary act is a material element of every offense. The jury convicted defendant of first degree murder and the court convicted defendant of unlawful use of a firearm by a felon on July 27, 1992. Defendant's motion for a new trial was denied on September 14, 1992.

An eligibility and sentencing hearing took place on October 7, 1992. At the sentencing phase, in aggravation, the State called three witnesses: Simon Falakassa, the defendant's former husband, Detective George Graham of the Chicago police department and Terry Chiganos, formerly an assistant State's Attorney in Cook County. Falakassa testified that he and his girlfriend were the victims of an armed robbery by the defendant, during which defendant and an accomplice tied them up and he was pistol-whipped by defendant. The defendant was subsequently convicted of robbery and sentenced to probation. Detective Graham testified that he was assigned to the bomb and arson division of the Chicago police department in the late 1970s. He investigated and eventually solved, in 1977, four aggravated arsons set by the defendant and the homicide of her 11-month-old daughter. The child's cause of death had been ruled accidental suffocation four years earlier because defendant had told the police that her daughter had been left alone in a room where she wrapped herself around a plastic bag and suffocated. In 1977, however, the defendant confessed to the murder of her daughter and to the four aggravated arsons. This confession was transcribed in the presence of Graham and Chiganos, the transcript of which was considered by the sentencing judge in the instant case. The trial court determined that defendant was eligible for the death penalty.

In mitigation, the defendant presented evidence which showed, inter alia, that she suffered from depression, alcoholism and a borderline personality disorder. Also, it was shown that defendant had been sexually abused by an uncle from six years old up through her early teens. Finally, defendant presented testimony evidencing her good behavior while in custody for the instant murder trial. The defendant was not allowed an opportunity for allocution on motion of the State, to which defendant objected. The judge found the evidence insufficient to mitigate against imposition of the death penalty and sentenced defendant to death.


I. Claim Defendant Was Too Intoxicated to Knowingly and Intelligently Waive Her Miranda Rights

Defendant alleges that the trial court erred in denying the motion to suppress her confession and various other pretrial statements on the basis that she was too intoxicated at the time she made the statements to knowingly and voluntarily waive her rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.

In support of her contention that she was too intoxicated to knowingly and intelligently waive her Miranda rights, defendant recounts the nature and quantity of alcohol she consumed prior and subsequent to her husband's death. She started drinking with John Gonzalez around noon on July 22, 1991. At 12:15 the next morning, July 23, 1991, defendant and Gonzalez went to Gonzalez's job and learned that he had been replaced because he was late. They then decided to get some money to continue their drinking. When their attempts at the cash station failed, defendant then decided that they should drive from Chicago to Bensenville so that she could get some money from her husband.

Upon arriving at her husband's apartment complex, they observed him getting into his truck. She got out of the car with Gonzalez's gun and got into the truck with her husband. After shooting him, the defendant got into the car and drove herself and Gonzalez back to Chicago. Upon arriving there, she allegedly continued drinking through the night. Her uncle, John Coutee, observed her in what he deemed an intoxicated state at 3 a.m. and at 6 a.m. later that day. After the defendant told him that her husband had been shot and this was confirmed by the Bensenville police department, Coutee drove the defendant and Gonzalez to the Bensenville station.

On the way to the police station, defendant allegedly consumed four beers in the car. They arrived at the Bensenville station at approximately 8:15 a.m., where the defendant remained, voluntarily, till 12:30 p.m. During her time at the station, defendant did not have anything to drink. On the way back to Chicago from the station, defendant consumed two or three additional beers. Upon arriving at her house in Chicago, defendant had some coffee made by her uncle.

Mid-afternoon, defendant and Gonzalez decided to go to the Beehive Lounge. While there, they consumed a series of $2 screwdrivers (vodka and orange juice). The exact amount consumed by defendant is uncertain. However, defendant estimates that she and Gonzalez drank $30 worth of these drinks based upon the amount of money she had left upon her subsequent arrest. An hour or so after their arrival at the Beehive Lounge, the defendant called the Bensenville police and fingered Gonzalez as the murderer. Shortly thereafter, at approximately 4:30 p.m., defendant and Gonzalez were arrested by the Bensenville police. It is uncontroverted that the defendant was issued Miranda warnings and responded that she understood the warnings. Defendant was also told at this time, however, that she was really not under arrest and that she should go along with the ruse for the sake of Gonzalez.

One and a half hours after her arrest, at 6 p.m., defendant was again issued Miranda warnings, after which she gave a tape-recorded and handwritten statement to the Bensenville police. These statements implicated John Gonzalez in the murder of her husband. However, 4 1/2 hours later, at 10:30 p.m., defendant was placed under arrest for the murder of her husband. She was then again issued Miranda warnings, after which she provided a second statement in which she confessed that it was she, and not John Gonzalez, who had shot her husband.

Early the next morning, at 1 a.m., Officer Neuberg was processing the defendant, who was shaking violently. Officer Neuberg asked the defendant why she was shaking and whether there was anything that she could do to help. The defendant responded that she had just shot her husband and, in response to further questioning, admitted that she had used a .357 Magnum.

Based upon the quantity of alcohol consumed, defendant argues that she was too intoxicated to knowingly and intelligently waive her Miranda rights. The law is well settled that where a suspect is so grossly intoxicated that she no longer has the capacity to waive her rights, any statements made while in this condition will be suppressed. ( People v. Roy (1971), 49 Ill. 2d 113, 116, 273 N.E.2d 363; see People v. Kincaid (1981), 87 Ill. 2d 107, 119, 57 Ill. Dec. 610, 429 N.E.2d 508.) However, intoxication alone does not warrant suppression; rather, the suspect must be so grossly intoxicated that she lacks capacity to waive her rights.

Initially, it should be noted that defendant's statements during her first visit to the Bensenville police station around 8:15 a.m. on July 23, 1991, are not subject to her Miranda claims because, as the defendant herself stated at trial, she came to the station voluntarily and understood that she was free to leave at any time, which she did several hours later. Likewise, her written and oral statements at 6 p.m. on July 23, 1991, fingering Gonzalez for her husband's murder were not subject to Miranda warnings because, as defendant testified, she understood she was not under arrest at the time of this statement and was free to leave. Thus, no ...

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