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January 23, 1998


The Honorable Justice Harrison delivered the opinion of the court.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Juan Cortes, was convicted of four counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1) and two counts of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2). Defendant elected to have the trial court determine his sentence, and the court found that he was eligible for the death penalty because he was convicted of murdering two or more individuals and because the victims were killed in the course of another felony. Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(3), (b)(6). The court further determined that there were no mitigating factors sufficient to preclude imposition of a sentence of death. See Ill. Rev. Stat. 1991, ch. 38, par. 9-1(h). Accordingly, the court sentenced defendant to death. Defendant's execution has been stayed pending direct review of the case by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603, 609(a).

On February 4, 1991, the bodies of the Gama brothers, Ayax, 34, and Rafael, 28, were discovered inside their apartment in Chicago. Each had been shot twice in the head at close range. Numerous items were later believed to be missing from the brothers' apartment, including a television set, jewelry, and a compact disc player. Defendant was arrested on February 26, 1991, and subsequently indicted on murder and armed robbery charges.

During the 3 1/2 years between defendant's arrest and conviction, the question of his fitness to stand trial arose. On August 19, 1992, defense counsel Michael King told the trial court that he had "found out that [defendant] was in the Cermak Hospital for certain ailments and also in the psychiatric ward," and had accordingly subpoenaed defendant's hospital records. On April 29, 1993, King requested that defendant be evaluated for fitness because King questioned defendant's ability to cooperate with counsel.

Thereafter, defendant was examined for fitness on four occasions, by three doctors, all of whom were employed by the Psychiatric Institute of the Cook County circuit court's Forensic Clinical Services Department. In May 1993, Dr. Paul Fauteck found defendant unfit for trial due to depression effecting his ability to adequately cooperate with defense counsel. Later that same month, Dr. Kishore Thampy found defendant fit to stand trial. Finally, in July 1993, Dr. Stafford Henry found defendant "fit to stand trial with medication." Due to the "conflict" between these opinions defense counsel requested a fitness hearing, which the trial court ordered. However, on August 19, 1993, prior to defendant's next court appearance, Dr. Fauteck reexamined defendant and found him "fit to stand trial with medication." Dr. Fauteck's report further noted that defendant's depression appeared to be in remission and that defendant "states he no longer needs to take the entire 300 mg. of Sinequan which is prescribed for him." Based on Dr. Fauteck's revised opinion, defense counsel King withdrew his request for a fitness hearing.

On January 13, 1994, the trial court denied defendant's motion to suppress statements made to police following his arrest which alleged, inter alia, defendant's inability to understand the English language. On January 25, 1994, new counsel, Richard Mottweiler, entered his appearance on defendant's behalf. Mottweiler represented defendant throughout the trial, sentencing and through a portion of the post-trial phase, at which time Michael King reentered the case.

On October 24, 1994, defendant's jury trial commenced. For the State, Chicago Police Officer Michael Cusak testified that during the late evening of February 4, 1991, he and his partner discovered the bodies of Ayax and Rafael Gama inside their apartment. The officers had entered the building on an unrelated case and found the Gamas' front door ajar. The door area was damaged, there were fresh wood chips and tool marks on the door shim, and the apartment was in disarray. One of the deceased lay face down on the floor in a pool of blood and the other was on a couch. The apartment was very warm and most of the blood was drying.

Chicago Police Detective Bill Johnston testified that he examined the crime scene and noticed from dust outlines that there were vacant areas on an entertainment center in the living room. A television remote control was discovered but no television was found. Johnston believed that the damage to the front door was from a screwdriver but that entry to the apartment had been gained by the application of brute force, as by shouldering the door.

Chicago Police Officer Joe Moran, a forensic investigator, processed the Gamas' apartment for evidence on February 4, 1991. Moran photographed the scene and recovered a fired bullet from the floor. He recovered ridged fingerprint impressions from the front door and from various items, including a telephone, beer bottle, drinking glass and candy jar. These items were collected for further fingerprint analysis at the crime laboratory. Chicago Police Officer Stanley Mocadlo, a latent print examiner, testified that the candy jar found at the scene contained the prints of defendant's right thumb, index and middle fingers. Mocadlo agreed that, depending on the environment, fingerprints can remain on a surface indefinitely. The parties stipulated that if Officer Richard Chenow, a firearm examiner for the Chicago police department, were to testify he would state that he examined the fired bullet recovered from the Gamas' apartment, as well as three fired bullets and a bullet fragment recovered from the victims' bodies. In Chenow's opinion, all of the bullets were ".38 Specials" and shared the same class characteristics. Because the bullets were unsuitable for further comparison of individual characteristics, Chenow could not determine whether they were all fired from the same gun. The parties also stipulated to the testimony of forensic pathologist Dr. Robert Kirschner. Dr. Kirschner's examination of Ayax Gama revealed the cause of death to be two close-range gunshot wounds, one to the back of the head and one to the back of the neck. The cause of Rafael Gama's death was also two gunshot wounds, one close-range wound to the head and one to the left side of the face.

Martin Diaz testified that he was a friend of Ayax and Rafael Gama, and knew that both of them were homosexuals. The brothers normally wore gold bracelets, rings and chains. Diaz had visited their apartment on several occasions and knew that the brothers stored jewelry and change in a glass jar located on an entertainment center or bookshelf. That unit also housed their 19-inch television set and Ayax's portable compact disc player. At trial, Diaz identified the glass jar and three compact discs belonging to the brothers and stated that the compact disc player and photograph of a television "looked like" the items previously owned by the Gamas. Diaz testified that when he visited the Gamas' apartment between 11 a.m. and noon on February 2, 1991, the jar and television set were in their customary positions on the entertainment center.

Diaz stated that the last time he saw either of the brothers was when he took Rafael Gama home at about 5 or 6 p.m. on the evening of February 2. He noted no damage to the Gama's front door that day. On the morning of February 3, Diaz unsuccessfully attempted to get the brothers to answer their door and phone. He later learned that they had been killed. The parties stipulated that if Eddie Munoz were to testify, he would state that at approximately 7 p.m. on February 2, 1991, he spoke with the Gama brothers and invited them to his apartment, but was informed that they would be staying at home that evening.

Alex Torres initially testified that he had been convicted of burglary in 1993. By February 1991, Torres had known defendant for 9 or 10 months and knew him by various names, including "Ivan Torres," "Ivan Flores" and the nickname "Boricua" (hereinafter Boriqua). *fn1 Torres knew defendant to speak both Spanish and English.

On February 2, 1991, at approximately 9 p.m., defendant stopped by Torres' apartment. Defendant was "drugged up" and "hyper." He had a bag of "weed" and a bag of heroin with him which he, Torres and Torres' cousin proceeded to consume. Defendant stated that he was going to "stick up" the "Mexican fagots [ sic ]." Torres, who had met these men through defendant several weeks earlier and knew where their apartment was located, refused defendant's invitation to go along. Defendant left Torres' apartment between 9:30 and 9:45 p.m. and, shortly thereafter, Torres' girlfriend, Arlyn Torres, arrived with her daughter. Torres and Arlyn spent the remainder of the evening at home watching movies.

The following morning defendant returned to Torres' apartment, "more hyper" and "drugged up" and wearing gold jewelry which he was not wearing the night before. Defendant displayed various gold chains, rings, a watch, a compact disc player and some "CD cassettes." One of the chains bore a name plate on it similar to that worn by one of the two homosexual men on the date Torres had met them. Defendant also flashed some money, claiming that it totaled $700. Defendant said that he "got paid" and bragged that he "did the Mexican fagots [ sic ] in" after taunting them about their sexuality. According to Torres, defendant demonstrated how he shot the two men and, at one point, pulled up his shirt, revealing a "two-shot .38 Derringer" tucked into his pants.

Defendant offered to sell the compact disc player to Torres, who purchased it for $30. Defendant then asked if Torres knew anyone who would be interested in buying a television. Torres called his sister, Lizette Torres, who told him to bring it over and that she would buy the television if it worked. An acquaintance, Jason Rivera, arrived and the three men drove in Rivera's car to the rear of the Gamas' apartment building. There, defendant retrieved a television from behind a dumpster and placed it in the trunk. The three proceeded to Torres' sister's apartment building and took the television to the first floor residence of a relative, Anna Cruz. Cruz bought the television from defendant for $150. The three men then left, picked up Arlyn and her child at Torres' apartment and drove them home. On the way to Arlyn's residence, defendant continued to brag about "killing the fagots [ sic ]."

The three men then drove to defendant's house where he retrieved another gun, a ".38 Special" revolver. Defendant then directed Rivera to an apartment where defendant ran inside and, upon returning, stated that he had sold the ".38 Special" for $125. Later, defendant briefly left Rivera's car and got into another vehicle, after which defendant said he had sold the other gun to his cousin. Defendant then bought Rivera and Torres food and narcotics. Torres next saw defendant a day or two later. Defendant invited Torres to accompany him and his girlfriend Nancy to "Liberty's Gold" pawn shop, where defendant sold the chains and rings he was wearing.

On February 20, Torres was arrested on a burglary charge. Torres initiated a conversation with police, telling them what he had heard defendant say about the murders. Because he did not want to get into trouble, Torres omitted mention of the fact that he had accompanied defendant to retrieve the television. Torres admitted that his motive in telling the police about the murders was "to try to get out of trouble" and that, during the 12 hours that he was held in custody at the station, the police offered to "try to help him out" on his burglary case. Several days later, Torres was able to "bond out" on the burglary charge, but was picked up by police on the night of February 25 and asked to provide more information. On the morning of February 26, Torres gave a written statement to an assistant State's Attorney. Torres admitted at trial that he also failed to mention the television's retrieval in this written statement. Torres later testified before the grand jury.

At trial, Torres was confronted with various inconsistencies between his grand jury testimony, his written and oral statements and his trial testimony, including: (1) whether he believed that defendant was going to kill or simply rob the victims; (2) what property defendant possessed on the morning of February 3; (3) whether he recognized the property as belonging to the Gama brothers; (4) whether it was Lizette Torres or Anna Cruz who had bought the television; and (5) what Jason Rivera's level of involvement was in the crimes. As to the latter two matters, Torres explained that he sought to protect Cruz from a stolen property charge and that he did not want to involve Rivera and Lizette Torres. Torres further admitted that the burglary charge he had been arrested for on February 20, 1991, was later dropped, but denied that there was any deal made in exchange for his trial testimony.

Arlyn Torres testified that she was Alex Torres' girlfriend in February 1991. On February 2, at approximately 10 p.m., Arlyn and her young daughter arrived at Torres' apartment and remained there with him the rest of the night. The next morning, Boriqua, the defendant, came to Torres' home. Defendant was "loud" and "hyper" and wore several gold rings and chains. Defendant began telling Torres, in English, about how he had shot the "Mexican faggots" in the head. Defendant laughed as he described how he had made the men "beg for their lives like bitches" before killing them. Arlyn testified that Torres then bought a compact disc player and "three CDs" from defendant and identified those items in court. Torres' friend Jason Rivera arrived and the three men left the apartment for approximately one-half hour. Arlyn was then driven home in Rivera's car. On the way, defendant continued to brag about the killings, saying he "did the Mexicans, the faggots, and he ain't scared of anybody," that he would "take down" anyone who "messed" with him, and that he did not care about anything. From the conversation, Arlyn also learned about a television having been stolen. Arlyn admitted that she did not take defendant's statements about the killings seriously and denied making certain prior inconsistent statements.

Lizette Torres testified that she knew defendant by the name Boriqua and had met him through her brother, Alex Torres. In February 1991, defendant spoke both English and Spanish, and Lizette had spoken to him in both these languages. When her brother called to ask if she knew anyone who would want to buy a television, she told him Anna Cruz, who lived in her building, was interested. After Torres, Rivera and defendant arrived with the television, a dirty 19-inch color model, and revealed it to be in working condition, Cruz paid defendant $150 for it. Anna Cruz testified that on February 3, 1991, she paid a man named Boriqua $150 for a television that he brought to her home. Cruz was unable to identify defendant as Boriqua at trial, but did identify a photograph of the television, which the police had confiscated in late February 1991.

Ralph Santiago testified that he was the president of Liberty Gold and Coin and was working at that store in February 1991. At trial, Santiago identified four receipts relating to business transactions conducted in his store. The first receipt, dated January 30, 1991, bore the name "Ivan Torres," of 1917 North Pulaski, and reflected the sale of a bracelet and chain to the shop. The second receipt, dated February 2, 1991, listed the sale of seven gold rings, a charm and two bracelets. The seller was again "Ivan Torres," of the same address. The third receipt, dated February 5, 1991, also bore the name "Ivan Torres," but did not describe the items sold. The fourth receipt, also dated February 5, described a quantity of 14-carat gold sold by an "Ivan Flores." Although Santiago had personally made the first two of these purchases, he could not identify the seller.

Chicago Police Detective Ernest Halvorsen testified regarding his investigation of these murders. On February 24, 1991, Halvorsen received information that a person named "Ivan Flores," also known as "Juan Cortez," may have been involved in the crime. Halvorsen checked with the crime lab the following day and discovered that defendant's fingerprints had been recovered from a jar found in the Gamas' apartment. Halvorsen arrested defendant shortly after midnight on February 26 and transported him to the police station.

After being informed that his fingerprints were found at the scene and that Alex, Arlyn and Lizette Torres had all given statements implicating him in the crime, defendant was advised of his Miranda rights in English and stated that he understood each one. Defendant then stated: "That fucken [ sic ] Alex gave me up. Well, you got me, but if I'm going to go down for these murders, I'm going to tell you about something that Alex did." Defendant gave Halvorsen information implicating Torres in an unrelated case and then gave a statement relating to the murder of the Gama brothers.

Defendant's statement related that he lived at 1917 North Pulaski in Chicago. He had known the Gama brothers, whom he referred to as "faggots," for about one year and had "partied" with them before. One of the Gama brothers used to pay defendant for anal intercourse. On Saturday, February 2, 1991, defendant told Torres and another man that he was going to "go by the Mexicans, get high with them and do them up." Armed with a ".38 caliber Smith & Wesson revolver," defendant arrived at the Gamas' apartment at about 10 p.m. and for the next few hours the three men drank beer and smoked marijuana and PCP. The brothers began to caress defendant, rubbing his crotch and buttocks. Defendant told the men several times to "leave me alone or I will kill you," and then drew his gun. When Rafael began to laugh at him, defendant shot and killed Rafael. "Ayax began crying and grabbed for the gun," the two struggled and defendant shot Ayax twice in the back of the head.

Defendant's statement further revealed that, after killing the brothers, defendant removed rings, chains and money from Ayax's body. He left the building and fell asleep in his car. After defendant awoke the following morning at approximately 9 a.m., he went to Torres' apartment and told him that he had killed the two Gamas. Defendant suggested that Torres return with him to the Gamas' apartment in order to take the television, compact disc player, money and anything else of value. Torres called a man named Jason and the three went to the apartment and retrieved the television set and compact disc player. The men then went to Lizette Torres' home, where they sold the television to Anna Cruz for $150. Torres kept the compact disc player. Defendant stated that he disposed of the jewelry he had taken from the Gama brothers at "Liberty Brothers Pawnshop."

Halvorsen testified that his entire conversation with defendant, which lasted 20 to 30 minutes, was in English. At no time did defendant claim not to understand what was said or request an explanation. After taking defendant's statement, Halvorsen contacted the State's Attorney's office.

Assistant Cook County State's Attorney William Carroll testified that on February 20, 1991, he met with defendant at the police station and advised him of his Miranda rights in English. After stating that he understood each right that was read to him, defendant agreed to speak with Carroll and then gave a narrative account in English of the offenses. After Carroll explained the differences between a court-reported and a handwritten statement to defendant, he elected the latter and his oral admissions to Carroll were reduced to writing. Carroll testified that he asked defendant to read one paragraph of the completed statement aloud, then watched as defendant read each page to himself, made his desired corrections and signed each page. Defendant's written statement, which was published to the jury, was essentially consistent with the statement defendant had previously given to Halvorsen, except that defendant made no mention of pawning the victims' jewelry. Defendant admitted in his statement that he understood written and spoken English.

In response to the State's evidence that he had made a statement in English, defendant called four witnesses who testified to his inability to speak or understand the English language. Donald Navarro testified that he lived next door to defendant and his girlfriend Nancy Almodovar in 1989 and 1990 and spoke with defendant perhaps three times per week, but only in Spanish. Navarro observed defendant speaking with other people, but never in English. Navarro admitted that he and his wife were "grandparents to Nancy's brother" and that his two god-children lived at defendant's address at the relevant time. The parties later stipulated that Navarro had testified before the grand jury that he usually encountered defendant only once a week.

Edwin Rodriquez testified that he worked with defendant in 1988 in a shipping department for eight hours a day, five days per week. During that time, Rodriquez, who himself spoke little English, never observed defendant speaking any language other than Spanish. Rodriquez admitted that he had testified before the grand jury in English, that he was Donald Navarro's ...

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