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05/22/97 PEOPLE STATE ILLINOIS v. MARILYN MULERO

May 22, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
MARILYN MULERO, APPELLANT.



The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

JUSTICE BILANDIC delivered the opinion of the court:

Defendant, Marilyn Mulero, was charged by indictment in Cook County with four counts of murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1992)), two counts of conspiracy to commit murder (720 ILCS 5/8-2, 9-1 (West 1992)) and one count of unlawful use of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 1992)), arising out of the May 12, 1992, shooting deaths of Jimmy Cruz and Hector Reyes. Defendant subsequently pled guilty to the four counts of murder. The trial court accepted defendant's guilty pleas and entered findings of guilt on all four counts of murder. Finding that certain counts merged with others, the trial court entered judgment on two counts of intentional murder.

Defendant requested a jury for her capital sentencing hearing. The jury found defendant eligible for the death penalty based upon two statutory aggravating factors (720 ILCS 5/9-1(b)(3), (b)(11) (West 1992)). After considering the evidence in aggravation and mitigation, the jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial judge sentenced defendant to death. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a).

For the reasons that follow, we affirm defendant's convictions for murder but vacate defendant's sentence of death and remand for a new sentencing hearing.

FACTS

On May 12, 1992, Jimmy Cruz and Hector Reyes were murdered in Humboldt Park, in Chicago, Illinois, at approximately 12:15 a.m. Defendant, who was 21 years of age, was arrested on May 13, 1992. On May 14, 1992, defendant gave a court-reported statement to the police and an assistant State's Attorney. After waiving her Miranda rights, defendant was asked about the events that occurred on May 12, 1992. In her statement, defendant indicated that she belonged to the Maniac Latin Disciples gang. Defendant stated that on May 11, 1992, she, Jacqueline Montanez and Madeline Mendoza, who were 15 and 16 years of age respectively, decided to shoot some members of the Latin Kings, a rival gang. The shootings were to avenge the death of a friend named Mudo, who was killed by some Latin Kings a couple of days earlier. Defendant stated that she obtained a small silver automatic gun to carry out the shootings. Defendant borrowed her brother's car and drove Montanez and Mendoza to look for some Latin Kings. They encountered Cruz and Reyes, who were Latin Kings, in another car. The three women and the victims all agreed to go to Humboldt Park. Defendant stated that she intended to kill Cruz and Reyes in the park. At the park, the group walked to the area of a public bathroom. According to defendant, Montanez went into the bathroom and shot Reyes, with the gun defendant had provided, while defendant remained outside. Montanez left the bathroom and gave defendant the gun. Defendant then shot Cruz in the back of the head. Defendant, Montanez and Mendoza then drove away. Both victims died of the gunshot wounds.

On June 19, 1992, defendant was charged with the murders and conspiracy to commit the murders. Montanez and Mendoza were also charged with multiple counts of murder and conspiracy to commit the murders.

On February 26, 1993, defendant filed a motion to suppress her May 14, 1992, statement to the police. In her motion to suppress, defendant alleged the following: (1) she was not properly informed of her rights pursuant to Miranda ; (2) she did not understand those rights; (3) she was not provided with an attorney after requesting to speak with one; and (4) the police psychologically coerced her into making a statement. At the suppression hearing, defendant testified that, after she was arrested and asked what happened in Humboldt Park, she told the police she did not know anything about the murders. Defendant further testified that she confessed to the crimes only after the police "coerced" her to do so. After considering all the evidence presented at the suppression hearing, the trial court denied the motion.

On September 27, 1993, defendant entered a plea of guilty for the murders of Jimmy Cruz and Hector Reyes. After the trial court admonished defendant, it accepted the plea as voluntary, knowing and intelligent. The trial court entered a judgment of guilty of two counts of intentional murder. The case then proceeded to a capital sentencing hearing before a jury.

The State presented the following testimony at the eligibility phase. John Dolan, a Chicago police detective, testified that he was dispatched to Humboldt Park on May 12, 1992, to respond to a report of a shooting. Once in Humboldt Park, he found Cruz and Reyes shot to death. Detective Dolan observed Cruz lying on the sidewalk with a .25-caliber cartridge casing lying within two feet of his body. Reyes was lying on the floor of a restroom and a bullet was located three feet from his head.

Dr. Nancy Jones, a forensic pathologist and assistant medical examiner for Cook County, testified that Jimmy Cruz, a 22-year-old male, and Hector Reyes, a 21-year-old male, both died as a result of gunshot wounds to the back of the head. Dr. Jones determined that Reyes was killed by a bullet that entered the center part of the back of his head and exited through his left eyelid. Given the shape of the entrance wound, she opined that the muzzle of the gun was held directly in contact with Reyes' head at the time the bullet was fired. With respect to Cruz, Dr. Jones found that he was killed by a bullet that entered the lower part of the back of his head. According to Dr. Jones, the gun was probably held within one or two inches of Cruz's head at the time it was fired.

Ivette Rodriguez testified about events occurring before and after the murders of Cruz and Reyes. On May 11, 1992, at about 11 or 11:30 p.m., Rodriguez saw defendant driving a white car with Montanez and Mendoza inside the car. According to Rodriguez, they invited her to go "make a hit with them and roll on some flakes," which meant to kill or fight a rival gang, namely, the Latin Kings. She refused. Approximately 90 minutes later, Rodriguez again saw defendant, Montanez and Mendoza in the neighborhood. Rodriguez testified that defendant told her "we got 'em, we got 'em ... we got the Kings." When Rodriguez called defendant a liar, Montanez pointed to the back of her head and said "yeah we did ... I shot him in the back of the head." Late in the evening on May 12, 1992, Rodriguez informed the police about the murders following her arrest for possession of a controlled substance. On May 13, 1992, Rodriguez accompanied the police in an undercover surveillance of a funeral home, where defendant, Montanez and Mendoza were attending a wake for Mudo. Rodriguez identified defendant and Montanez. The police then arrested defendant and Montanez.

Detective Ernest Halvorsen testified about the events after defendant's arrest. Detective Halvorsen stated that he took part in the arrest of defendant and Montanez after Rodriguez identified them. Mendoza was arrested two days later. After arriving at the police station, Detective Halvorsen placed Montanez and defendant in separate interview rooms. Following his interview with Montanez, he gave defendant Miranda warnings. Defendant indicated that she understood her rights and agreed to speak with him. During their conversation, Detective Halvorsen told defendant that she was under arrest for the murders of Cruz and Reyes, who were killed in Humboldt Park. Initially, defendant denied knowing anything about the murders. The detective then informed defendant that Montanez gave a complete statement of what occurred in Humboldt Park, including defendant's involvement. Defendant then agreed to give a statement.

According to Detective Halvorsen, defendant told him that she was a member of the Maniac Latin Disciples street gang. Defendant, Montanez and Mendoza had talked about obtaining revenge against the Latin Kings for murdering their friend Mudo. They decided to "go on a mission ... and shoot some Kings." Defendant obtained a small silver automatic pistol and borrowed a white car from her brother. Defendant, along with Montanez and Mendoza, then drove over to the Latin Kings neighborhood for the purpose of shooting any Latin King they saw on the street. As they were driving, a car pulled alongside of them that contained two men, Cruz and Reyes. Defendant informed Detective Halvorsen that Montanez told her the two men were "flakes," that is, Latin Kings. Defendant, Montanez and Mendoza invited Cruz and Reyes to "party" in Humboldt Park. Defendant told Detective Halvorsen that they knew they were going to kill Cruz and Reyes when they arrived at the park. Once in the park, Montanez walked into a bathroom with Reyes and shot him in the back of the head. Montanez then handed the gun to defendant. Defendant walked up behind Cruz and shot him in the back of the head. The three girls then went back to their neighborhood. Detective Halvorsen described defendant's demeanor at the time of her statement as arrogant and cocky. According to Detective Halvorsen, defendant was proud of herself because she had performed a mission for her "nation." In Detective Halvorsen's opinion, defendant did not appear remorseful during her conversations with him.

John Dillon, an assistant State's Attorney for Cook County, testified that when he arrived at the police station on May 14, 1992, he first spoke with Montanez, who gave a court-reported statement. Next, Assistant State's Attorney Dillon spoke with defendant after advising her of Miranda warnings, which she claimed to understand and waived. Defendant agreed to give a court-reported statement. During defendant's oral statement, she indicated that there was a celebration after the murders. Assistant State's Attorney Dillon stated that defendant's demeanor during their conversation was very calm. Defendant was in control of herself and did not indicate any remorse for her actions. It appeared to Assistant State's Attorney Dillon that defendant was very proud of what she had done.

The State concluded its case at the eligibility phase by presenting evidence by stipulation. It was stipulated that James Tracy, a firearms examiner with the Chicago police department crime laboratory, would testify that the bullet taken from Cruz's body and the bullet found next to Reyes' body were .25-caliber bullets, and that the cartridge casing found near Cruz's body was a .25-caliber cartridge. Also admitted into evidence was a certified copy of defendant's indictment and conviction following her guilty plea. The State then rested. The defense presented no evidence at the eligibility phase.

After considering the evidence, the jury found beyond a reasonable doubt that defendant was eligible for the death penalty under the following aggravating factors: (1) the murder was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan (720 ILCS 5/9-1(b)(11) (West 1992)) and (2) defendant had been convicted of murdering two or more persons (720 ILCS 5/9-1(b)(3) (West 1992)).

In the second phase of the sentencing hearing, the State presented the following evidence in aggravation. David Lavin and Sandra Stavropoulos, Cook County assistant State's Attorneys, testified regarding their previous prosecutions of defendant. Lavin stated that defendant pled guilty on March 28, 1990, to two charges of delivery of a controlled substance. Defendant received two years' probation and served 30 days in the county jail. On March 2, 1991, while on probation, defendant was arrested for selling cocaine to an undercover officer. Stavropoulos stated that on July 1, 1991, defendant pled guilty to delivery of a controlled substance and received a three-year prison term. Defendant was paroled on February 28, 1992.

Joanne Roberts testified for the State about her encounters with defendant in jail. On March 27, 1993, Roberts had been arrested for armed robbery. While Roberts was in Cook County jail, she met defendant, whom she knew was a Maniac Latin Disciple. Roberts stated that in June of 1993, while in jail together, defendant asked her to kill Jackie Montanez because she was going to testify against her. When Roberts refused, defendant informed her that "she would take care of it herself." After relaying this information to the prosecutors, Roberts was released from jail and placed on an electronic home monitoring system for her own safety. According to Roberts, no promises were made to her regarding her pending charges in exchange for her testimony. Roberts then testified about threatening phone calls she received from defendant and an unknown male member of the Maniac Latin Disciples prior to her testimony at this sentencing hearing.

Finally, Anthony Riccio, a detective for the Chicago police department, who at the time of the murder was assigned to the gang crimes unit and was familiar with the street gangs in the Humboldt Park area, testified for the State. Detective Riccio explained a news videotape taken of defendant after she confessed to the murders. Detective Riccio testified that as he escorted defendant through the police station after her confession, television news cameras captured her shouting gang slogans and flashing gang signals with her hands. As the videotape was played to the jury, Detective Riccio explained that defendant took her hand and placed it over her heart, which meant that what she was about to say and do was "from her heart." Next, defendant's hand was shown pointing five fingers downward, which represented a disrespectful gesture to the Latin Kings. Defendant then flipped her hand in an upright position, like a pitchfork, to show her allegiance to the Maniac Latin Disciples. Defendant also stated "KK," which Detective Riccio stated meant "king killers" and was a form of disrespect to the Latin Kings.

Following Detective Riccio's testimony, the State concluded the aggravation portion of the sentencing hearing. Defendant presented the following evidence in mitigation. Four individuals who testified on behalf of defendant were persons she had encountered while in Cook County jail. Joseph Widdington, a teacher in the PACE program (Program Active for Correctional Education), testified that defendant was a tutor in this program. Widdington described defendant as a quiet person who wrote poetry. In Widdington's opinion, defendant was the type of person who had talent but never used it. Gloria Brookins, a social worker and counselor for the PACE program, testified that defendant helped her with other women with respect to peer tutoring, organizing socials and monthly activities. Brookins stated that she never saw defendant threaten anyone in the program. Rather, defendant was friendly and well-liked. Sergeant Sharon Smith, a correctional officer in Cook County jail, stated that defendant was a quiet, nice, respectful, and affable person. She never witnessed defendant engage in gang-related behavior. According to Sergeant Smith, defendant had an easygoing disposition and a positive attitude. Martin Lowery, another correctional officer, testified that there were no threats or disturbances between defendant and Montanez.

Defendant's mother, Angelina Gonzalez, also testified on behalf of defendant. Mrs. Gonzalez stated that she brought defendant's two children to visit her in jail every week. According to Mrs. Gonzalez, defendant behaved well with her children and frequently called to ask about them.

Defendant herself testified in the mitigation stage of the sentencing hearing. Defendant stated that she was a former member of the Maniac Latin Disciples. Defendant recounted that in 1992 she did not hate the Latin Kings because she never had any problems with them. Defendant testified, however, that she became angry about the murder of Mudo, a deaf mute from her neighborhood. Defendant stated that because of Mudo's death she agreed to join Jackie Montanez and Madeline Mendoza to kill some Latin Kings. According to defendant, Montanez obtained a .25-caliber automatic gun, while defendant borrowed her brother's car and drove Montanez and Mendoza to look for some Latin Kings. They eventually encountered Jimmy Cruz and Hector Reyes, who asked the girls to meet them in Humboldt Park. Montanez informed defendant that Cruz and Reyes were Latin Kings. Defendant stated that, although she knew Montanez had a loaded gun, she did not know that Montanez would shoot Reyes. After Reyes' shooting, Montanez handed defendant the gun and she placed the gun approximately five inches away from Cruz's head and shot him. According to defendant, she began to cry after she shot Cruz. Defendant then admitted going back to the neighborhood along with Montanez and Mendoza and bragging to Ivette Rodriguez about what they had just done.

During defendant's testimony, she also admitted knowing Joanne Roberts in Cook County jail. According to defendant, however, she had little conversation with Roberts. Defendant denied asking Roberts to have Montanez killed. Defendant refuted Roberts' allegation that she was mad at Montanez. Defendant also acknowledged that she obtained Roberts' telephone number from Roberts, who gave it to her so they could keep in touch. Defendant stated that she called Roberts once and asked her how she was doing and how she was able to go on an electric home monitoring system. Roberts informed defendant that the State made a deal with her in exchange for her turning State's evidence against Mendoza.

Additional facts are discussed where relevant in the analysis portion of the opinion.

After considering the evidence in aggravation and mitigation, the jury unanimously found that there were no mitigating factors sufficient to preclude a sentence of death. The trial court accordingly sentenced defendant to death.

Defendant subsequently filed post-sentencing motions. After a hearing, defendant's motion for a new sentencing hearing was denied. Defendant then filed a pro se petition to withdraw her guilty plea and vacate her sentence, and a pro se motion for modification of sentence. Defense counsel later filed a supplemental motion for a new sentencing hearing, and a supplemental petition to withdraw defendant's guilty plea and vacate her sentence. The court refused to accept the filing of the new sentencing hearing motion. With respect to the supplemental petition to withdraw defendant's guilty plea and vacate her sentence, the court confined the evidence to whether defendant's guilty plea had been knowing, intelligent and voluntary. After a hearing, the court denied the motion to withdraw defendant's guilty plea. This appeal followed.

ANALYSIS

Defendant raises the following issues on appeal: (1) whether the prosecutor's questions during cross-examination and remarks during closing arguments at the sentencing hearing concerning defendant's filing of a pretrial motion to suppress her confession deprived defendant of her right against self-incrimination and to due process of law; (2) whether the trial court erred in admitting as evidence in aggravation the testimony of Joanne Roberts regarding death threats made to her by an unknown man; (3) whether the trial court erred in refusing to allow the defense to bring defendant's two young children before the jury for them to view during the presentation of mitigating evidence; (4) whether defendant's death sentence must be vacated because of the prosecutor's remarks during closing arguments at the sentencing hearing; (5) whether the trial court erred in ruling that the testimony of the defense's clinical psychologist at the post-sentencing hearing was not credible; (6) whether the trial court erred in allowing defendant only 10 peremptory challenges in selecting the sentencing jury; (7) whether section 9-1(b)(11) of the Criminal Code of 1961 is an unconstitutional eligibility factor; and (8) whether the Illinois death penalty statute is unconstitutional. For the reasons stated below, we vacate defendant's death sentence and remand for a new sentencing hearing.

I. SENTENCING ISSUES

A. Reference to Defendant's Motion to Suppress

Defendant argues that she was deprived of due process of law and her fifth amendment right against self-incrimination at the aggravation/mitigation stage of her capital sentencing hearing. Defendant claims that the prosecutor improperly cross-examined defendant by questioning her about her pretrial motion to suppress her confession and its subsequent denial. Defendant also contends that the prosecutor made improper comments during closing arguments about the motion to suppress. We agree that the prosecutor's use of defendant's motion to suppress at the sentencing hearing was improper and prejudicial and entitles defendant to a new sentencing hearing.

As noted, defendant filed a pretrial motion to suppress her confession on the bases that she was not timely given Miranda warnings and was coerced by the police into making a statement. The trial court denied the motion to suppress, after which defendant entered a plea of guilty. At the second phase of the sentencing hearing, defendant's theory of mitigation was that she entered her plea of guilty because of remorse. Defendant testified in mitigation that she pled guilty because she knew her actions were wrong and she wanted to ease her conscience. On cross-examination, the prosecutor asked defendant if she knew the meaning of the word remorse and if she had ever felt remorse about this case. Defendant responded that feeling remorse meant "feeling sorry," and that she had felt remorse ever since the murders happened. Defendant also stated that she had cooperated with the police and told the truth since the murders happened. The prosecutor then confronted defendant with her testimony from the pretrial suppression hearing, at which defendant admitted initially telling the police that she did not know what happened in Humboldt Park. The prosecutor continued his cross-examination of defendant as follows:

"Q. [Assistant State's Attorney:] When did you first decide that you were going to plead guilty on this case?

A. Months ago, before Jackie came to trial.

Q. Pardon me?

A. Months ago before Jackie started her trial.

Q. Well, about what month in particular did you first start thinking you were going to plead guilty here?

A. Around June or July.

Q. June or July. Well, was it before-do we have-was it before you had the pretrial hearing with Judge Mannion?

A. After the pretrial hearing.

Q. After. That's because in that hearing before Judge Mannion, you know, when you had all this remorse in your heart and everything else, you tried to get the Judge to ...


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