Appeal from the Circuit Court of Cook County. No. 96 CR 10553 Honorable Ralph Reyna Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Following a jury trial, defendant was convicted of first degree murder, solicitation to commit murder for hire, and conspiracy to commit murder. Defendant waived a jury for the sentencing phase of trial, where he was found eligible for the death penalty. The trial court found mitigating factors to preclude the imposition of the death penalty and sentenced defendant to natural life imprisonment without the possibility of parole. Defendant now appeals, arguing that (1) his counsel had a conflict of interest in representing both defendant and a witness against him; (2) the trial court erred in denying his motion to suppress his statement as involuntary based on his inability to speak English, medical condition, sleep deprivation and improper diet; (3) defendant was denied his right to a fair trial, due process and his right to confront witnesses by the trial court's undue restriction on cross-examination, inadequate voir dire and disrespectful treatment of defense counsel in the jury's presence; (4) defendant was denied his right to effective assistance of counsel; and (5) defendant was not properly convicted because the jury was not sworn to try the case. For the following reasons, we reverse and remand for a new trial.
Defendant's conviction arose from the fatal shooting of Kedric Bell on January 16, 1995. At the hearing on defendant's motion to suppress his statement, Detectives Bribiesca and McWeeny of the Chicago police department testified that on March 21, 1996, they gave defendant his Miranda rights in Spanish and English, and defendant responded in both languages that he understood those rights. McWeeny then interviewed defendant mainly in English, with Bribiesca translating about 20 to 25 percent of the questions into Spanish. Both detectives testified that defendant did not display an inability to understand what they said.
At the 5:00 p.m. interview, defendant told them that he was a diabetic, and that he was feeling fine, but would soon need medication. The police transported defendant to St. Anthony's Hospital for insulin at midnight, returning to the station around 1:00 a.m. when defendant ate hamburgers. Bribiesca, Assistant State's Attorney Lyman, and McWeeny then "Mirandized" defendant in English and Spanish before interviewing defendant again. Lyman testified that defendant stated he was feeling fine. Lyman read defendant's statement aloud as he wrote it and after he finished, Bribiesca read it to defendant in Spanish. Defendant was allowed to make corrections before signing the statement.
Bribiesca, McWeeny, and Lyman testified that defendant did not appear to be in medical distress and never complained about his physical condition. Lyman and Bribiesca stated that defendant did not appear tired. The police gave defendant hamburgers, diet soda, fruit, coffee and water and defendant did not request any other food. Bribiesca and McWeeny denied that McWeeny told defendant he could have insulin only after the interview or that anyone told defendant that he would not receive any medical treatment until he admitted his involvement in the murder. On cross-examination, Lyman stated that defendant had a Spanish accent, but he spoke English in full sentences and appeared to understand English well.
Detective Robert Rose of the New York City police department testified that defendant had an accent, but was fluent in English. Detective Jorge Sanchez and Sergeant Michael Conroy with the New York City police department stated that defendant was able to communicate in English.
Dr. Taladriz Arturo testified for the State that he reviewed defendant's medical records from St. Anthony's and Cook County Hospital. When defendant arrived at St. Anthony's at midnight, his sugar level was a little high, but after receiving insulin and eating something, like hamburgers and fruit, Arturo opined that defendant would be fine. Defendant was stable with no complaints when released at 1:00 a.m. Dr. Arturo testified that defendant did not develop diabetic ketosis until 11:00 a.m. at Cook County Hospital, and never suffered from the more serious condition, ketoacidosis. Ketosis was not life threatening, but would affect his ability to concentrate and might affect brain functioning. Based on this diagnosis, Dr. Arturo testified that defendant needed insulin and intravenous fluids, which he received.
Dr. William Buckingham testified for the defense that when defendant was admitted to Cook County Hospital at 9:30 a.m. on March 22, he had developed diabetic ketoacidosis, the forerunner to a diabetic coma. This was a life threatening condition which could cause dizziness, shortness of breath, mental confusion, and loss of consciousness. He opined that the development of ketoacidosis took several hours and occurred between the period of the St. Anthony's discharge and admission to Cook County Hospital. He stated that a person in defendant's condition at 9:30 a.m. would not have been able to make a knowing and willful statement and could not knowingly have determined whether to speak to the police.
Robert Page, Michael Childs, Sharon Jantolak, Ronald Motley and Irving Wilson testified for the defense that, based on their experiences with defendant at Cook County jail, defendant could not speak English well and had to use gestures or an interpreter to communicate.
Defendant testified through a Spanish interpreter that after arriving in Chicago on March 21, 1996, the officers fed him a baloney sandwich, fruit, hamburgers and coffee. Defendant stated that he understood Spanish during the interviews, but could not speak or understand English. He also stated that he did not receive much sleep during the days before the interviews.
Later that evening, defendant started to feel ill and told Bribiesca several times that he could not answer any questions. He felt so ill that he no longer understood what they were saying or what he was saying. Defendant testified that he did not know what the statement said and signed it only because they told him if he did, they would take him to the hospital. On cross-examination, defendant admitted that it was possible that Bribiesca read the statement to him in Spanish, but that he did not understand it because of his condition. Defendant testified that he did not make many of the statements contained in his confession.
The State admitted in rebuttal a certified conviction where defendant pled guilty in Florida to conspiracy to export stolen vehicles and exportation of stolen vehicles. The parties stipulated that a language expert would testify that he evaluated defendant on November 12, 1997 and found that his vocabulary was sufficient for only handling simple, elementary needs and he could only participate in basic conversations.
The trial court made no factual findings before ruling that the statement was voluntary.
The following relevant testimony was adduced at trial. Lyman published defendant's statement where defendant stated that in October 1994, Jorge Hernandez, the brother of his girlfriend, Olga Medina, gave defendant 22 kilograms of cocaine to sell. After defendant sold the narcotics, Hernandez sent a Columbian male to Chicago to collect the money owed, approximately $400,000. In November 1994, Hernandez sent defendant another 22 kilograms to sell. Defendant sold 11 by Christmas, but was robbed of the remaining 11 kilos. Hernandez then sent a Columbian woman to collect the money from defendant. Defendant paid her for the drugs he sold, but still owed Hernandez $200,000. Over the next several weeks, Hernandez called him repeatedly asking for the money. On January 14, 1995, Hernandez told defendant that he was sending someone to Chicago to collect the rest of the money. Defendant responded that he would have the money and deliver it the next day. On January 15, 1995, Hernandez sent the victim, Kedric Bell, to collect the money. Once Bell arrived, he called defendant several times asking for the money and defendant replied that he would have it the next day. However, defendant lacked the money to pay Bell and asked Alexis Paredero to help him make it look like Bell had been paid and then robbed. Paredero told defendant that after they robbed Bell, they would kill him. The two men met with Malcolm Ortiz and Antonio Rosado, chose "snake alley" for the robbery, and decided that Paredero would drive Bell to the alley where Rosado and Ortiz would pretend to be police officers and arrest them. Paredero left defendant between 10:00 p.m. and 11:00 p.m. on January 15 after defendant paid him $10,000. Defendant spent that night at his house with Medina, Luis Garcia and Armondo. The next morning, Hernandez called him and told him that Bell had been killed.
Sergio Montero testified that his sentence for drug offenses was reduced when he agreed to testify against defendant. In late January or February 1995, defendant told him that he owed Hernandez $500,000. Montero also overheard Ortiz and Rosado asking defendant for more money for the Chicago murder and defendant replying that he had already paid them.
Debbie Perez, Paredero's wife, testified that she has been convicted and sentenced on drug charges and required to cooperate with the authorities. When she worked for defendant in late 1994, he told her that he was under pressure because he owed money to his distributor, Hernandez, and he feared for his and his family's lives. Defendant stated that he would have to "deal with" the next person Hernandez sent to collect the money. When Paredero returned home early on January 16, 1995, ...