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06/10/96 PEOPLE STATE ILLINOIS v. HECTOR MONTANEZ

June 10, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HECTOR MONTANEZ, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RICHARD NEVILLE, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

Is it ineffective assistance of counsel for a defense lawyer to pursue a strategy that requires the jury to ignore the law? Our answer is: not under the facts of this case. We affirm the defendant's convictions and sentences for murder and armed robbery.

FACTS

On September 27, 1991, security guard Ted McWherter was fatally shot in the head while working in a factory at 4250 West Shubert in Chicago. An autopsy showed that the bullet was fired at close range. Two years later, in September 1993, Hector Montanez was tried and convicted by a jury. He later was sentenced to concurrent prison terms of 52 years for first-degree murder and 30 years for armed robbery.

The State's evidence established that Stanley Amenowicz was working as a security guard at the factory with two other security guards. He was monitoring video surveillance cameras of a room containing a cash box and a door which opened to the street. He noticed four men outside the building run toward the doorway leading to the street. Amenowicz told Charles Wasilk, another guard in the room, to take a look. As Wasilk approached the door to the street, the door was pushed open and a silver-colored gun was pushed through the door opening and fired. Amenowicz was then forced to kneel on the floor while someone held a gun to his head and asked him if he had a gun. The cash box then was removed.

Carmen Maldonado testified that she was in the parking lot of the factory about 1:45 p.m. on September 27, 1991, waiting to visit with her roommate, when she saw two men enter the building. They walked directly in front of her several minutes later. She heard one of the men ask an employee where to apply for a job and watched them walk toward a blue Chevrolet. When the men approached the car and began talking, she observed two more men inside. She recalled this specifically because a horn sounded, notifying the men that the vehicle was blocking a UPS truck. The men moved the car and continued standing beside the car as employees came out for their second break.

Maldonado noticed the two men who had originally entered the factory approach co-defendant Tony Gonzalez (whom she knew as an employee), exchange a certain look, then give each other a "high five." The men then went to the blue car. After Maldonado visited with her friend, she drove away and noticed the men still standing by the car. The next month, Maldonado identified the defendant and the four other co-defendants in a line-up as the men she saw.

Defendant's confession to the police and an assistant State's Attorney corroborated the physical evidence produced at trial. Defendant's six-page court-reported statement said that he and his brother Carlos, along with Edwin Velasquez, Tony Gonzalez, and Harry Pena, met at Gonzalez' house to plan a "hit" which was to occur on September 20, 1991. Three pistols were to be used, a .44 caliber with scope, a .45 caliber, and a .22 caliber. Nothing in the plan called for shooting or harming anyone. The robbery was ultimately postponed one week until September 27, 1991. Defendant's definition of the word "hit" was never pursued by the police or assistant State's Attorney.

On September 27, defendant drove the others in a borrowed van to the plant where Gonzalez worked. Based on a drawing provided by Gonzalez, Carlos entered first, Velasquez entered second, and defendant followed. Carlos carried the .44 caliber gun, Velaquez carried the .22 caliber gun, and defendant had the .45 caliber gun. After defendant heard a gunshot, he thought his brother had been shot but then saw Carlos waving at them to enter. At Carlos' instruction, defendant took the gun from the deceased and frisked Amenowicz, who was not armed. Defendant did not hit, harm, or fire shots at Amenowicz. After Pena took the money, they returned to defendant's house where they split up the proceeds, with defendant receiving approximately $4,000. Through Pena and Gonzalez the police recovered the .44 caliber and .45 caliber weapons. Nothing defendant told police or the assistant State's Attorney indicated that he shot anyone, he intended to shoot anyone, or he thought that anyone was going to get shot.

Bullet fragments removed from the deceased were consistent with the .44 caliber gun. Three live .45 caliber rounds, and one spent jacket from a bullet were recovered from the scene, but no spent shell casings were found.

The jury found Hector guilty of first-degree murder and armed robbery. Defense counsel filed a post-trial motion raising 13 claims of error, including the issue that defendant could not be held accountable for murder because he did not do the killing.

Montanez contends he was denied his constitutional right to effective assistance of counsel. U.S. Const., amends VI and XIV; Ill. Const. 1970, art. I, ยง 8.

From beginning to end, even during a hearing on a post-trial motion, defense counsel maintained it was not the defendant's intent or desire to shoot or kill anyone. But, says the defendant, counsel did not contest the armed robbery charge. He contends that in light of the accountability and felony murder instructions given to the jury that was no defense at all. That is, the jury was left with no choice but to convict Montanez of murder.

There are two ways a convicted defendant can establish ineffectiveness of counsel. They stem from companion cases decided by the ...


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