Appeal from the Circuit Court of Cook County. No. 08 CR 04115 Honorable Dennis J. Porter, Judge Presiding.
The opinion of the court was delivered by: Justice Rochford
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Karnezis concurred in the judgment and opinion.
¶ 1 A jury convicted defendant, Daniel Nevarez, of first degree murder and he was sentenced to 85 years' imprisonment, which included a 25-year enhancement for personally discharging the firearm that proximately caused the victim's death. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010). On appeal, defendant contends the trial court erred by: (1) denying his motion to suppress; (2) denying his sixth amendment right to be represented by the counsel of his choice; and (3) imposing the 25-year sentence enhancement in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm.
¶ 2 The victim, Eric Kaminski, disappeared on February 5, 2004. Almost four years later, on December 30, 2007, police unearthed his body from the floor of an uninhabited apartment building during the execution of a search warrant. The State subsequently indicted defendant with two counts of first degree murder.
¶ 3 Defendant filed a motion to suppress. During the hearing on the motion, Detective Patrick Golden testified he obtained the search warrant on December 28, 2007, and that it was premised on interviews he conducted that day with Rachael Gonzalez, defendant's girlfriend at the time of the victim's disappearance, and her father, Arturo. In her interview, Ms. Gonzalez stated that approximately four years earlier, defendant and his friend, Joseph Rodriguez, whom she identified from a photo array, dug and placed the victim's remains in a hole in the interior floor of a basement apartment at defendant's father's (Salvador Nevarez's) apartment building at 2248 W. Coulter Street in Chicago.
¶ 4 The next day, December 29, 2007, sometime between 10 a.m. and 11 a.m., Detective Golden began to execute the search warrant at 2248 W. Coulter Street, accompanied by numerous police personnel from various departments. The apartment complex consisted of two buildings. The search concentrated only on the first building, which, in turn, consisted of four rental apartments--front and rear basement apartments, and front and rear first-floor apartments. The focal point of the search, the rear basement apartment, was a small, one-bedroom rental unit, approximately 600 square feet, with separate front and back entrances. In addition to the bedroom, the apartment contained a small kitchen and bathroom area, and a front room further down a hallway, with a "sitting area" off to the side into which the front door opened.
¶ 5 Although Detective Golden testified that Mr. Nevarez was the owner of the apartment complex, the original search team did not gain access to the building through him. Instead, after knocking and receiving no answer, they forcibly entered the rear basement apartment through the back door sometime between 11 p.m. and 12:30 a.m.
¶ 6 Upon entering, they encountered a rental "very obvious[ly]" in rehab. There were unmounted kitchen cabinets on the kitchen floor and obvious signs of just-completed work: drywall, painting, trim, and a newly installed tile floor. There were numerous power tools, compressors, and carpentry tools. The remains of a never-installed furnace were sitting in the front room and the front door contained burn marks, presumably from someone using a blow torch to try to remove paint from the door. The bedroom contained a 6-foot by 3-foot closet, but no furniture, bed or even a sleeping bag. There were only tools and a dog cage in the bedroom.
¶ 7 Half the apartment contained a plywood subfloor, and the other half, including the bedroom and front room, had a newer-poured cement subfloor overlaid by laminate tile. Detective Golden testified that, prior to this, "it obviously was a wood-based floor through the entire apartment" that had "extensive rotting damage."
¶ 8 The original search team unsuccessfully inspected the cement floor for any indications regarding the specific location of the body. They were joined in the late afternoon by Officer Bertuca and his German shepherd named "Stitch," which was trained in cadaver retrieval (hereinafter, sometimes referred to as the cadaver dog). Officer Bertuca suggested that the search team core-drill holes in the cement to release any potential gases or odors created from the decomposition of the body, thereby facilitating Stitch's search. Thus, the rescue unit of the Chicago Fire Department (hereinafter, Rescue Unit) joined the search team in the late evening hours of December 29, 2007, and core-drilled the entire cement subfloor throughout the apartment about every foot with a high-powered drill. The process took several hours.
¶ 9 Afterward, everyone left the apartment except for Officer Bertuca and Stitch, who searched for a possible "hit" from the cement slab. Stitch went into the bedroom, lay down on all fours, stuck his snout inside one of the core-drilled holes, and stayed there. Officer Bertuca told Detective Golden that Stitch's behavior indicated the cadaver remains were somewhere in the apartment, but that it did not mean there was a body right at the spot where Stitch was lying.
¶ 10 The Rescue Unit excavated the bedroom floor for some four or five hours. The bedroom floor was "pretty thick," consisting of layers of approximately five or six inches of cement, crushed stone, and then black dirt. Additionally, the excavators also encountered and had to break through electrical conduit and PVC drain tiles under the entire cement subfloor throughout the apartment. The rescue team and the original search team used power jackhammers, picks, axes, shovels, and pry bars to excavate a trench approximately 6 feet deep, 3 to 4 feet wide, and 6 to 10 feet in length. They moved the excavated material by "bucket brigade" from the bedroom to the front sitting area of the apartment.
¶ 11 Between 9 p.m. and 10 p.m., everyone was "pretty much physically drained." They decided to continue the search the next day. Prior to leaving, they boarded up the site and posted fully uniformed officers in two marked vehicles to guard the site. One vehicle was in back of the apartment, and the other was in front. The vehicles remained stationed there until the search team arrived the next day to continue the search.
¶ 12 Meanwhile, police located Joseph Rodriguez, defendant's friend identified by Rachael Gonzalez. They brought him to the police station at around 12 a.m. or 1 a.m. on December 30, 2009, to assist in the investigation. Detective Golden met with Mr. Rodriguez at the police station between 1 p.m. and 2 p.m. on December 30, after having dug again at the search site earlier that day. Mr. Rodriguez admitted helping defendant dig a hole into which the victim's remains were placed.
¶ 13 Between 2 p.m. and 3 p.m., Mr. Rodriguez was brought to the search site, took one look at the excavated trench in the bedroom, and said, "You're digging in the wrong spot." He went to the front room, about seven feet from the front door, four to five feet from the east wall, tapped his foot on the tile, and said, "You go down about eight feet and you'll find the body of [the victim]." This spot was only about 15 feet from the first excavation site of the previous day.
¶ 14 Thus, the Rescue Unit arrived between 4 p.m. and 5 p.m. to excavate an 8- by 10-foot trench in the front area pointed out by Mr. Rodriguez. The process required 15 to 20 people, took 3 to 5 hours, and was the same as that used in the bedroom. In addition to breaking through cement, PVC, and electrical conduit, and moving the material by bucket brigade, the team hit a very foul smelling water between six to eight feet down.
¶ 15 Sometime between 9 p.m. and 10 p.m., a searcher pulled out a clump of dirt with his spade and observed blue cloth material, under which appeared to be a human bone. All digging stopped, the search site again was protected overnight by police, and the mobile crime lab and medical examiner's office arrived the next morning, December 31, 2007. Ultimately, they recovered very minute particles of clothing attached to the skeletal remains of what was later identified through dental records to be the victim. The search, from the initial forced entry on December 29, 2007, until the discovery of human remains on December 30, 2007, took approximately 36 hours.
¶ 16 On cross-examination, Detective Golden acknowledged that Stitch did not alert in the front room, where the victim actually was found, even though the Rescue Unit already had core-drilled in that room. He also acknowledged he did not include in his progress report the fact that he returned on December 30, 2007, and started digging prior to interviewing Mr. Rodriguez.
¶ 17 Detective Golden explained that, although the bedroom excavation did not produce positive results, he knew on the morning of December 30, 2007, that Stitch's "hit" meant there was a body somewhere in the apartment. This evidence was buttressed by the information from Rachael Gonzalez and her father and, further, by Mr. Rodriguez's information.
¶ 18 Defendant testified at the hearing that on December 29, 2007, he had had his own set of keys to each unit of his father's apartment building since 2002. His father had owned the building for 30 years and defendant helped him maintain and repair the building and also collected rent. Defendant collected the rent in late December 2007 because his father was in Mexico for three to four months. Defendant and his dog spent many nights in the rear basement apartment when he brought female friends there behind his girlfriend's back. There was a dog cage and there "should have been" a bed in the rental unit.
¶ 19 On cross-examination, defendant admitted he did not own the building. In fact, defendant acknowledged that, in 2007, he had his own residence at 5917 S. Neenah Avenue in Chicago, which he shared with his girlfriend. Defendant could not recall when he last spent the night at the rental unit prior to December 29, 2007. He admitted that the apartment was full of tools and other equipment, ...