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People v. Klimawicze

August 17, 2004


[6] Appeal from the Circuit Court of Cook County. Honorable James D. Egan, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice Wolfson

[8]  Following a jury trial, defendant Audrey Klimawicze was convicted of first degree murder, armed robbery, and home invasion. The trial court sentenced her to an extended term of 92 years' imprisonment for murder and two concurrent 30-year sentences for the remaining counts of armed robbery and home invasion. On appeal, defendant challenged the legality of her arrest and the admission of her subsequent hand-written statement at trial. This court found the police lacked probable cause to justify defendant's arrest and remanded the matter to the trial court for an attenuation hearing. People v. Klimawicze, No. 1-00-3531 (2003) (unpublished order pursuant to Supreme Court Rule 23). Following our instructions, the trial court made several factual findings and concluded defendant's statement was sufficiently attenuated from her illegal arrest.

[9]  In addition to appealing the trial court's finding regarding attenuation, defendant contends: (1) the trial court violated defendant's right to confront witnesses by allowing hearsay statements into evidence; (2) jury selection was fundamentally unfair because the State falsely educated the jury on the law of accountability during voir dire; (3) the prosecution improperly questioned defense witnesses about defendant's prior bad acts; (4) the prosecution improperly used prior consistent statements to bolster its witness's credibility; (5) the prosecution improperly asked defendant to comment on other witnesses' truthfulness; (6) the trial court erred when it refused to instruct the jury on second degree murder; and (7) defendant's 92-year sentence was unfairly disproportionate. We affirm defendant's conviction and sentences.

[10]   FACTS

[11]   We rely on the trial court's factual findings at the attenuation hearing. They are supported by the record.

[12]   The Chicago police found the partially burned body of Audrey V. Klimawicze on August 2, 1997, in a garbage container located in the alley of the 3300 block of South Emerald Avenue. The victim had been stabbed and strangled. At 7:05 that evening, the police arrested defendant, who was the victim's daughter, and co-defendant Hector Mercado.*fn1

[13]   Police questioned both defendant and co-defendant Mercado at 9:30 p.m. on August 2, 1997, and they denied any knowledge of the crime. At 10 p.m., an eyewitness identified Mercado in a lineup as the man she saw pushing the garbage cart down the alley the previous evening. At 12:30 a.m. on August 3, 1997, police told Mercado he had been identified in the lineup. Mercado told police that defendant told him she had a fight with her mother and that she had stabbed her. Defendant and a man named Mario placed the victim in a garbage can behind her apartment building. Mercado admitted he later moved the can further down the alley.

[14]   At 4 a.m. on August 3, 1997, taxi driver Joe Martinez told police he drove defendant and Mercado on August 2, 1997. Defendant told Martinez she had an argument with her mother and had stabbed her. According to Martinez, defendant said, "The bitch deserved it," and Mercado replied, "You're right. She deserved it. They can't prove a thing."

[15]   At 4:30 a.m., police advised defendant of her Miranda rights and confronted her with Mercado's and Martinez's statements. She told police she had an argument with her mother and that her mother pulled a knife on her. Defendant was able to take the knife away. When she told Mercado what happened, he took the knife, went to the victim's apartment, and stabbed her. According to defendant, Mercado placed her mother's body in the garbage container. Defendant gave the same version of the story when interviewed by police three hours later.

[16]   At 8:30 a.m., Mercado repeated his 12:30 a.m. statement. The police again confronted defendant with Mercado's and Martinez's statements. She gave the same statement as earlier and agreed to repeat her statement to Mercado.

[17]   After listening to defendant, Mercado told police defendant had talked about killing her mother for three weeks. At 10:30 p.m. on July 31, 1997, defendant asked Mercado to accompany her to her mother's apartment so they could kill her. Mercado told police he refused but went down to the second floor apartment when he heard a loud noise. He saw defendant stab her mother with a large knife several times. Over the next 20 hours, he used money defendant found in the victim's apartment to buy heroin. On August 1, 1997, he placed the victim in the garbage container and later pushed it down the alley.

[18]   Police then confronted defendant with Mercado's latest statement. Defendant repeated her earlier statements. At 4 p.m. defendant initiated a conversation with police. She reiterated her earlier statement but added Mercado did not return to their apartment on the night of August 1, 1997. On the morning of August 2, 1997, Mercado told defendant he had burned the garbage cart and police were investigating.

[19]   At 7:30 p.m. on August 3, 1997, defendant, after being informed of her rights, gave the same statement to assistant State's Attorney Thomas Bilyk.

[20]   An hour later, Mercado gave Bilyk a different story. He said defendant told him she was going "to do" her mother. Defendant returned because her mother would not let her enter the apartment. Defendant then took a long black cord and Mercado took a hunting knife to the victim's apartment. Defendant kicked her mother and forced her way into the apartment. Mercado followed. Defendant then strangled the victim with the cord and instructed Mercado to stab her. He stabbed the victim three times while defendant continued to choke her. After taking money from the victim's apartment, they went to the projects to buy heroin and dispose of their weapons. The next day, Mercado placed the victim and a carpet into a garbage container from the alley. Later, they moved the container to the alley and set it on fire. He also said defendant told the cabdriver named Joe that she killed her mother.

[21]   At 9:15 p.m., defendant was confronted with Mercado's 8:30 p.m. statement. She expressed disbelief that Mercado made the statement; the police brought him into defendant's interview room. He told defendant, "I told them the truth." Police escorted him from the room, and Bilyk informed defendant of her rights. She agreed to give a handwritten statement, which was later admitted at trial.

[22]   The testimony at trial, including the contents of defendant's handwritten statement, was summarized in our previous order. See Klimawicze, No. 1-00-3531 (2003). The jury found defendant guilty of first degree murder, armed robbery, and home invasion.

[23]   Defendant waived her right to a jury trial to determine her eligibility for the death penalty. At sentencing, the court heard evidence in mitigation and aggravation and determined defendant and Mercado were eligible for the death penalty because the murder occurred during an armed robbery. Based on the mitigating evidence, the court declined to impose the death penalty. The court also considered imposing life sentences, saying a life sentence "seems to be awfully appropriate." Instead, the court sentenced both defendants to 92-years' imprisonment based on the brutal nature of the murder. The court also imposed two concurrent 30-year terms for the armed robbery and home invasion convictions.


[25]   I. Attenuation Analysis

[26]   Defendant contends the trial court erred when it found her statement was attenuated from her illegal arrest.

[27]   Evidence collected following an illegal arrest may be admissible if it is sufficiently attenuated from any illegality. Brown v. Illinois, 422 U.S. 590, 603-04, 45 L.Ed. 2d 416, 427, 95 S.Ct. 2254, 2261-62 (1975). Courts use four factors in attenuation analysis: (1) the existence of Miranda warnings; (2) the proximity in time between the arrest and the statement; (3) the presence of intervening circumstances; and (4) the flagrancy of police misconduct. Brown, 422 U.S. at 603-04, 45 L.Ed. 2d at 427, 95 S.Ct. at 2261-62; Wilberton, 348 Ill. App. 3d 82, 85, 809 N.E.2d 745 (2004). Typically, intervening circumstances and flagrancy of police misconduct are the two key factors in determining whether police exploited the illegal arrest to obtain a confession. People v. Willis, 344 Ill. App. 3d 868, 884-85, 801 N.E.2d 47 (2003), pet. for leave to appeal granted, 207 Ill. 2d 627, 807 N.E.2d 981 (2004); People v. Ollie, 333 Ill. App. 3d 971, 986, 777 N.E.2d 529 (2002). The prosecution bears the burden of showing the confession was not a product of the illegal arrest. People v. Foskey, 136 Ill. 2d 66, 86, 554 N.E.2d 192 (1990).

[28]   A trial court's decision regarding a motion to suppress evidence is reviewed de novo; however, great deference is given to the trial court's factual findings, which will not be reversed unless they are found to be against the manifest weight of the evidence. People v. Pitman, No. 95783 (Ill. June 17, 2004).

[29]   A. Miranda Warnings

[30]   Courts have held that the presence of Miranda warnings alone will not purge the taint of an illegal arrest. Wilberton, 348 Ill. App. 3d at 85. "Although police cannot dissipate the taint of an illegal arrest simply by giving Miranda warnings, the presence of the warnings prior to interrogation carries some weight." Wilberton, 348 Ill. App. 3d at 85 (this factor weighed in favor of attenuation where the defendant waived his rights six times). In this case, the trial court found defendant was given the Miranda warnings each time police questioned her. She waived those rights seven times. We agree with the trial court that this factor weighs in favor of attenuation.

[31]   B. Proximity in Time Between Arrest and Confession

[32]   The length of time between the illegal arrest and a confession is an ambiguous attenuation factor.

[33]   "[W]here intervening circumstances are present, a long period between arrest and confession may support the inference that it was the intervening circumstance, and not the illegal arrest, which prompted the confession. However where no intervening circumstances are present, a long and illegal detention may in itself impel the defendant to confess." People v. White, 117 Ill. 2d 194, 224, 512 N.E.2d 677 (1987).

[34]   In this case, we cannot determine whether the 27-hour period between defendant's arrest and her handwritten statement favors attenuation without determining whether there were intervening circumstances.

[35]   C. Intervening Circumstances

[36]   Intervening circumstances are an important factor in attenuation because they break the causal connection between unconstitutional police conduct and a confession. Wilberton, 348 Ill. App. 3d at 85-86. "Intervening circumstances support attenuation when they are capable of inducing a voluntary desire to confess." Wilberton, 348 Ill. App. 3d at 86; People v. Austin, 293 Ill. App. 3d 784, 788, 688 N.E.2d 740 (2000).

[37]   In this case, the court found Mercado's and Martinez's statements, which occurred before all but one of defendant's statements, were intervening circumstances for two reasons. First, the statements provided the police with probable cause they previously lacked to arrest defendant. Second, the statements "sparked the desire of the defendant to confess voluntarily."

[38]   1. Intervening Probable Cause

[39]   "Intervening acquisition of probable cause is 'an important factor in the attenuation analysis' even though it does not always assure the police did not exploit a Fourth Amendment violation." Wilberton, 348 Ill. App. 3d at 87, quoting People v. Morris, 209 Ill. 2d 137, 158, 809 N.E.2d 377 (2004) overruled in part, Pitman, No. 95783, slip op. at 8 (overruled Morris to the extent it was inconsistent with the standard of review set forth in Ornelas v. United States, 517 U.S. 690, 134 L.Ed. 2d 911, 116 S.Ct. 1657 (1999)). In Morris, our supreme court explained why intervening probable cause weighs heavily in favor of attenuation, rather than application of the exclusionary rule: "[I]t would place an unreasonable burden on police *** to release an illegally arrested defendant and then, based on probable cause obtained after the illegal arrest, arrest him again when he reached the sidewalk." Morris, 209 Ill. 2d at 159.

[40]   A co-defendant's statement can constitute intervening probable cause and serve as an attenuating circumstance if it is legally obtained and reliable. Wilberton, 348 Ill. App. 3d at 88; see also People v. James, 118 Ill. 2d 214, 224-26, 514 N.E.2d 998 (1987) (co-defendant's statement, which was found sufficiently reliable, provided probable cause to arrest defendant even though it was illegally obtained).

[41]   In this case, Mercado's statement meets both requirements. Although Mercado challenged his arrest before trial, he was unsuccessful and did not raise the issue again on appeal. Based on the record, we have no reason to doubt the legality of Mercado's arrest. Second, Mercado's statement was sufficiently reliable. The details of his statement were corroborated by Martinez's statement and the physical evidence. Additionally, Mercado's statement was against his penal interest because he admitted helping defendant dispose of the victim's body. See generally James, 118 Ill. 2d at 223 ("admissions against penal interest may, by their very nature, possess inherent indicia of reliability").

[42]   While Mercado's statement supports intervening probable cause, we need not rely on it exclusively. Martinez's statement that defendant admitted stabbing her mother also provides intervening probable cause and weighs in favor of attenuation.

[43]   We do not examine the legality of Martinez's detention because defendant failed to sufficiently raise the issue in her brief. Defendant simply stated Martinez was detained without probable cause without arguing specific facts and applicable law. Bare contentions lacking sufficient legal argument do not warrant our consideration. In re Estate of Divine, 263 Ill. App. 3d 799, 810, 635 N.E.2d 581 (1994) ("It is an elementary rule of appellate practice that an appellant may not make a point merely by stating it without presenting arguments in support ...

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