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People v. Izquierdo-Flores

August 01, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
CARLOS IZQUIERDO-FLORES, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 00--CF--2813 Honorable John T. Phillips, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

Released for publication August 8, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
CARLOS IZQUIERDO-FLORES, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Lake County. No. 00--CF--2813 Honorable John T. Phillips, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

PUBLISH

After admitting that he killed his aunt, defendant, Carlos Izquierdo-Flores, was charged by indictment with second-degree murder (720 ILCS 5/9--2(a)(1), (a)(2) (West 2000)). More than 120 days after defendant filed a speedy trial demand on the original charges, the State filed a second indictment charging first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 2000)) and sought leave to nol-pros the second-degree murder charges. The trial court granted defendant's motion to dismiss the second indictment. The State appeals, and we reverse and remand.

On September 7, 2000, the State charged defendant by complaint with second-degree murder. On the same date, defendant filed a speedy trial demand. On September 20, 2000, the State filed an indictment charging defendant with second-degree murder. Count I of the indictment alleged that, on September 6, 2000, while committing first-degree murder and acting under a sudden and intense passion resulting from serious provocation by the victim, defendant choked the victim with his hands, thereby causing her death. Count II alleged that defendant acted under an unreasonable belief that circumstances that would justify or exonerate the killing were present.

On September 26, 2000, the trial court arraigned defendant and set a November 20 trial. On November 3, 2000, at defendant's request, the court continued the trial until January 2, 2001. On December 6, 2000, the parties agreed to continue the trial to January 8, 2001. On January 8, defendant requested a conference pursuant to Supreme Court Rule 402(d) (177 Ill. 2d R. 402(d)). Following the conference, the parties stated that plea negotiations would continue.

On January 10, 2001, the State sought a continuance because Dr. Nancy Jones, who performed the autopsy on the victim, would be unavailable to testify until after January 19. During a January 16 hearing, the State sought leave to dismiss the pending charges and file first-degree murder charges. Daniel Kleinhubert, the assistant State's Attorney, explained that Jones was out of the country during all of December 2000 and, in January, was engaged in trials and teaching classes. Kleinhubert explained that the second-degree murder charge was based on defendant's statement to the police that he and the victim got into a fight and that, while defending himself, defendant strangled her with his hands. Kleinhubert spoke to Jones on January 12, 2001, and reviewed the autopsy report with her. Jones told Kleinhubert that after reviewing the photos of the victim she was of the opinion that the marks on the victim's neck were made by a ligature, such as a rope, belt, or piece of clothing. Noting that defendant had been in custody for months and was prepared to offer an open plea to the pending charge, defense counsel objected to the new charges. The trial court did not rule on the State's request.

On January 17, 2001, the State filed a second, three-count indictment charging first-degree murder. The second indictment alleged that defendant used an object to strangle the victim. Defendant moved to dismiss the second indictment. Attached to defendant's motion were Jones's autopsy report dated September 16, 2000, and the grand jury minutes from September 20, 2000.

The report states that Jones performed the autopsy on September 7, 2000. A receipt stamp on the report bears a date of September 18, 2000. In the report, Jones concluded that the cause of death was strangulation. In listing the victim's injuries, the report notes:

"2. On the undersurface of the chin, there is a deep 4.75 by 1 inch red abrasion.

3. On the anterior neck, over the midline, there is a large, deep red abrasion which ...


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