The opinion of the court was delivered by: Justice Quinn
Appeal from the Circuit Court of Cook County Honorable Michael B. Bolan, Judge Presiding.
Modified Opinion Upon Denial of Rehearing
Following a jury trial, defendant Marcos Villagomez was convicted of first degree murder and sentenced to 30 years' imprisonment. On appeal, defendant contends that: (1) the trial court erred in denying his motion for a continuance to secure the presence of witnesses; (2) the trial court erred in refusing to allow defense counsel to ask prospective jurors during voir dire whether they would follow the law of self-defense; (3) the trial court erred in denying defendant's motion to suppress his statements because he only spoke Spanish and did not knowingly and voluntarily waive his Miranda rights and his confession should have been excluded as hearsay; (4) the State made improper comments during closing argument that shifted the burden of proof to defendant; (5) the trial court improperly allowed the jury to view gruesome photographs during their deliberations; (6) defendant should receive a new sentencing hearing or, in the alternative, a reduction in his sentence because the presentence investigation report prepared prior to sentencing was inadequate; and (7) the sentencing court erred in denying defendant day-for-day good time credit pursuant to section 3-6-3 of the Unified Code of Corrections. (730 ILCS 5/3-6-3 (West 1996)). Defendant also filed a supplemental brief in which he contended that he was not advised of his right to assistance of his country's consul in violation of article 36(1) of the Vienna Convention on Consular Relations. Vienna Convention Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 595 U.N.T.S. 261 (hereinafter Vienna Convention or Convention). The issues relating to the admission of defendant's statement and what implications arise from a violation of the Vienna Convention will be considered in this opinion; all other issues will be determined in a separate Supreme Court Rule 23 order disseminated contemporaneously. For the reasons that follow, we affirm as modified.
Defendant's conviction arose from the fatal stabbing of Socorro Villa on May 19, 1996. Prior to trial, defendant filed a motion to suppress his statements pursuant to section 114-11 of the Code of Criminal Procedure of 1963. 725 ILCS 5/114-11 (West 1996).
At the hearing on the motion to suppress, Officer Freddie De Leon testified that on May 22, 1996, at the corner of 1800 South Throop Street in Chicago, he arrested defendant and advised him of his Miranda rights in Spanish. DeLeon testified that defendant indicated that he understood those rights. After DeLeon brought defendant to the police station for questioning, defendant admitted to DeLeon that he stabbed the victim. DeLeon then placed defendant in an interview room. DeLeon testified that he did not hear any screaming or loud noise coming from the interview room while defendant was there.
Detective Fernando Montilla testified that he and Detective Anthony Carothers questioned defendant in the interview room at approximately 4:45 p.m. on May 22, 1996. Montilla testified that he informed defendant that he spoke Spanish and proceeded to speak to him in that language. Montilla is of Puerto Rican descent. Montilla advised defendant of his Miranda rights in Spanish and defendant indicated that he understood. Montilla questioned defendant about the murder for approximately 20 minutes, and after this first round of questioning, Montilla made sure that defendant was fed and that he had water. Defendant was also given cigarettes and the option to sleep on a long bench or in chairs that Montilla brought into the interview room. At approximately 10 p.m., an assistant State's Attorney arrived at the police station. The assistant State's Attorney then interviewed defendant with Montilla acting as interpreter. Montilla testified that he informed defendant that the assistant State's Attorney was employed by the State's Attorney office and that she was not his lawyer. Montilla testified that he never told defendant that he had to answer the assistant State's Attorney's questions. Defendant indicated that he understood. Defendant then agreed to speak with the assistant State's Attorney with Montilla acting as an interpreter.
Montilla testified that he accurately translated the conversation, including additional Miranda warnings. When the assistant State's Attorney asked defendant how he was treated by the police, defendant stated that he had been treated fairly. Defendant then agreed to put the statement in writing. As the assistant State's Attorney wrote defendant's statement, Montilla translated the statement from Spanish to English. After the statement was written, Montilla translated each sentence from English to Spanish and asked defendant if each sentence was correct. Defendant said yes and then Montilla told the assistant State's Attorney that it was correct. Once the corrections were made, defendant placed his initials at the bottom of each page of the statement.
On cross-examination, Montilla testified that defendant's version of the events differed from the version Montilla received from the two witnesses, Rafael Villa and Beto Renteria, and he confronted defendant with this fact. Montilla also testified that he specifically explained to defendant how his statement could be used against him. Montilla testified that because defendant is from Mexico, he wanted to ensure that defendant understood his rights.
Defendant testified that he had lived in the United States since 1977 and that when he gave Montilla his version of the events, Montilla accused him of lying. Defendant said that Montilla's behavior toward him was proper during the initial interrogation, but during the second interrogation, Montilla yelled at him. The third time they spoke, Montilla said that if defendant did not tell him the truth, he was going to "sit me in the electric chair or put me in jail for life." Defendant testified that he was frightened and panicked.
Defendant further testified that Montilla told him the following regarding the assistant State's Attorney: that she was his attorney; that she was from the State; and that defendant had to answer all of her questions. Defendant also thought that she was the attorney that had been assigned to him. Defendant testified that he also thought she was representing him because Montilla said that if he could not afford an attorney the State would provide him with one. Defendant also testified that he did not understand the handwritten statement and that he signed the written statement before it was even read to him.
On cross-examination, defendant testified that Montilla did not translate the assistant State's Attorney's reading of the constitutional rights at that time. After the assistant State's Attorney began to speak, Montilla told defendant to tell her how the fight between defendant and the victim began. Defendant testified that the assistant State's Attorney just began to write and only asked defendant a question occasionally. Defendant denied that he told Montilla that he was giving the statement freely and voluntarily. Defendant also denied that he spoke to the arresting officers.
In rebuttal, the assistant State's Attorney who interviewed defendant testified that Montilla acted as an interpreter during her interview with defendant. She testified that she told defendant in English that she was an assistant State's Attorney, a prosecutor, and not his lawyer. Montilla then turned to defendant and spoke to him in Spanish while defendant nodded. The assistant State's Attorney testified that she read defendant's Miranda rights to him and, after each right, Montilla spoke to defendant in Spanish. After each Miranda right, defendant indicated that he understood either by nodding or saying, "Si." With Montilla translating in Spanish, the assistant State's Attorney asked defendant if he wanted to talk to her. Defendant agreed to speak with her about the murder.
Defendant then agreed to give a written statement. The assistant State's Attorney testified that she wrote the statement, stopping after every few lines to make corrections. She read the statement, pausing after each sentence or phrase for the translation and corrections defendant gave to Montilla in Spanish, which Montilla then translated into English. The assistant State's Attorney testified that the only errors were typographical errors. She further testified that defendant did not sign a page before it was read and translated by Montilla.
At the conclusion of argument on defendant's motion, the trial court denied defendant's motion to suppress the statements and found that the statements were made freely and voluntarily, that defendant was not intimidated by Montilla and that ...