Appeal from the Circuit Court of Cook County. No. 05 CR 26636 The Honorable John J. Fleming, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.
¶ 1 Defendant, Heriberto "Eddie" Alvarez, was charged with home invasion, first degree murder, aggravated battery, and attempted first degree murder in a 20-count indictment. After a bench trial, the circuit court found defendant guilty as charged. The circuit court merged the home invasion, aggravated battery and various murder counts before entering a judgment of conviction for felony murder predicated on home invasion (720 ILCS 5/9-1(a)(3) (West 2008)), and attempted intentional murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2008)). The circuit court sentenced defendant to a 40-year prison term for felony murder predicated on home invasion with a mandatory 25-year firearm enhancement (730 ILCS 5/5-8-1(d)(iii) (West 2008)) for a 65-year prison term. For the attempted murder conviction, the circuit court sentenced defendant to a nonenhanced eight-year prison term to be served consecutively to his conviction for felony murder predicated on home invasion. Defendant received credit for time served.
¶ 2 Defendant raises the following issues on appeal: (1) whether the State proved his guilt beyond a reasonable doubt for his conviction for first degree murder; (2) whether the circuit court abused its discretion in sentencing defendant on his first degree murder conviction; (3) whether he is entitled to a new sentencing hearing based on the State's violation of Illinois Supreme Court Rule 416(c) (Ill. S. Ct. R. 416(c) (eff. Mar. 1, 2001)); and (4) whether this court should correct the mittimus to include one more day of presentence credit.
¶ 3 We hold that the evidence was sufficient to prove defendant's guilt, that the circuit court did not abuse its discretion in sentencing defendant, and that defendant's challenge to the State's violation of Rule 416(c) is moot. We agree that defendant's mittimus should be corrected to reflect one more day of presentence credit.
¶ 5 The circuit court sentenced defendant on July 16, 2009. On July 29, 2009, the circuit court denied defendant's motion to reconsider his sentence, and defendant timely filed his notice of appeal. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 7 Defendant was charged with home invasion, the first degree murder of Judith Crespo, and the aggravated battery and attempted first degree murder of David Rios in a 20-count indictment. Defendant was arraigned on December 6, 2005. On November 3, 2006, the State filed its notice of intent to seek the death penalty.*fn1 Defendant waived his right to a jury.
¶ 8 At trial, the State called David Rios to the stand. David testified that he first knew Judith Crespo as a friend before starting a dating relationship with her. He had known defendant a few years as a casual friend, a baseball player, and from work. On October 23, 2005, he was at Crespo's apartment eating dinner when defendant "came to the window and I heard a commotion." David stated he was in the dining room and defendant was "[c]limbing through the window" to his left. David then "jumped off" the chair he was sitting in and ran to defendant and kicked him, whereupon, defendant "fell back," outside of the house. David then heard defendant on the back porch a short time later. He yelled for his daughter Ashley Rios to call the police and for his nephew to go upstairs. He then went to see where Crespo had gone and found her in the back holding the door in the kitchen. David saw defendant on the other side of the window. David testified that he helped Crespo hold the door closed but she was also running back and forth screaming at defendant to leave.
¶ 9 David went to the kitchen counter to get a knife, but by the time he returned to the back door, it had been kicked in and defendant was pointing a gun at him. He put both hands up by his face. He then felt a bullet through his hand. He ran to Crespo's bedroom and told her to run. David heard one shot. He then "creeped up" to the side of the bedroom whereupon defendant appeared with a gun and shot him two or three more times on his side. He was lying on the bedroom floor and defendant pointed the gun at his back, stated "Mother flower sorry," and shot him once more. His daughter came and picked him up, and they went to the front porch, where he collapsed. The next thing he remembered was waking up at the hospital.
¶ 10 David testified that as a result of his gunshot wounds, he has a bullet lodged in his chest and he suffers from continuous problems. Because of the shooting, he had to undergo a kidney transplant and dialysis, and he was going blind and had trouble hearing.
¶ 11 On cross-examination, David acknowledged that he did have diabetes before the incident occurred. When asked whether his failing eyesight is due to his diabetes, he answered, "[a]s they say." David testified further that he had known defendant for a few years from work and that it was through defendant that he met Crespo. At the time of the incident, David had been dating Crespo for about six months and he was aware that she used to live with defendant. Crespo had told him that defendant had moved out about a year or so prior to the incident. David testified that it was Crespo who initially stopped defendant from coming into the home through the window, but it was he who kicked defendant when defendant attempted to enter through the dining room window. David testified Crespo shut the window on defendant. He also testified that defendant kept kicking through the window so he went to the counter to get a knife, but he was too late because defendant had already "busted through the door with the gun." David testified that at some point, he "must have dropped" the knife. Questioned further, he could not recall what he did with the knife. David also clarified that when he was in the bedroom, he was lying down when he was shot in the back. David also admitted that he was not getting along with defendant prior to the incident due to his relationship with Crespo.
¶ 12 The State next called Jesus "Jesse" Rios. Jesse testified that on October 23, 2005, he was helping his uncle David Rios move a television set to Crespo's apartment. Crespo's apartment building had two floors, and she lived on the first floor. That day David, Crespo, and Ashley Rios were at the apartment. Jesse was in the bedroom with Ashley watching a movie when defendant tried to climb in through the dining room window. Jesse testified that David kicked defendant out of the window. Crespo then ran into the kitchen because defendant was attempting to enter through the back door. Crespo was trying to hold the door closed while also calling for help. David then told Jesse to run upstairs and call the police, whereupon he ran upstairs to the landlord's apartment. He found the landlord and told him he needed to call the police. The landlord attempted to call the police, but his landline did not work so Jesse called the police using his cousin Ashley's cell phone. While Jesse was upstairs, he heard a gunshot downstairs. He heard David calling for him from downstairs. He next saw David with Ashley near the top of the stairs of the front porch. He observed David bleeding in multiple places.
¶ 13 Jesse testified that later that evening he was taken to the police station and identified defendant from photographs. Jesse went back to the police station the next day and identified defendant in a lineup. He told the detectives the defendant "shot my uncle."
¶ 14 On cross-examination, Jesse testified that he did not actually see any shooting done by defendant as he was upstairs when he heard the gunshot. Prior to the incident, he had never seen defendant before, he had not met Crespo before, and it was the first time he had been to Crespo's apartment. He believed that his uncle was moving into Crespo's apartment on the date of the incident. After David kicked defendant out of the apartment through the window, David shut the window. He did not remember Crespo being by the window. He saw David grab a knife and go toward the back door before he told him to go upstairs and call the police.
¶ 15 The State next called Ashley Rios, David's daughter. She testified she was at Crespo's apartment on October 23, 2005. David had recently started dating Crespo and Ashley had spent the night at her apartment. Jesse, her cousin, was helping David move into the apartment on that day. Specifically, they were moving a big screen television. At the time of the incident, she was with Jesse watching a movie in the bedroom and David was eating at the table in the dining room. Defendant then jumped through the window. She had known defendant from David's work and his softball team. When defendant jumped through the window, David reacted and kicked defendant back out the window. Crespo began closing windows and then ran to the kitchen while Ashley tried to calm David down. At this point, defendant ran to the back door. Ashley explained that "[t]he back door was kind of loose, I would say, because of earlier a fire department had came and kind of ruined the back doors," but she noted that the back door was "closeable." She was between the hall of the dining room and kitchen where she saw defendant at the back door. Crespo and David were trying to hold the door shut, but then David left to try to get a knife out of the drawer. At that time, defendant "forcefully" came into the apartment through the back door. She testified defendant looked "anxious" and that, "as [her] father had his hands up in surrender, began shooting my father." David walked backwards into the bedroom. She was still in the dining room area when she heard other gunshots and then saw defendant run out of the bedroom where David had been. Defendant ran toward the kitchen area. She then went to David, who was bleeding from his chest. She grabbed David and laid him out on the bed before walking him to the front door.
¶ 16 Ashley testified that she then went back into the house, where she grabbed a knife. She could not find Crespo, so she went back to David, who was sitting on the front porch. An ambulance and the police then arrived. She told the police defendant's name and identified him from a photograph array. The next day she identified defendant at the police station in a lineup.
¶ 17 On cross-examination, Ashley testified that David had been dating Crespo for "not too much" time and reiterated that David was moving into the apartment that day. David and defendant did not get along because Crespo and defendant used to date. Defendant used to live at the apartment, but she was not sure how long ago it was when defendant had lived there. David was the one that kicked defendant out of the window and then shut it. She did not tell any detectives that Crespo pushed defendant out of the window. She thought David had dropped the knife he had picked up. She saw defendant fire the first gunshot, but not the other shots. She did not see defendant shoot Crespo.
¶ 18 The State next called Jeanette Gonzalez, defendant's ex-wife, to testify. Crespo was her ex-sister-in-law. On October 23, 2005, Gonzalez called the fire department and reported a fire at Crespo's address. She did so to "distract" defendant. She was concerned and wanted to keep defendant away from the house. Between 3:30 p.m. and 4 p.m., defendant called Gonzalez's daughter, who then gave Gonzalez the phone. Defendant told Gonzalez "I'm sorry, Jay. I'm sorry" and "take care of the girls." The following exchange then occurred:
"Q. [Assistant State's Attorney]: Do you remember him saying he did it?
A. [Gonzalez]: He said, I did it.
And then he said - - he kept saying, I did it. That's all. "
¶ 19 On cross-examination, Gonzalez testified defendant sounded "distraught." She had seen defendant earlier in the day, and defendant looked like he had not slept and was under the influence of alcohol. His emotional state was bad and he "was a wreck." She knew defendant used to live with Crespo, but was not sure when he moved out. She learned, on the day of the incident, that David was dating Crespo. When asked whether defendant was "distraught over [Crespo] being with David Rios," she answered, "[y]es." Gonzalez testified that when she spoke to defendant between 3:30 p.m. and 4 p.m., "he was saying that, they are laughing at me and wouldn't stop."
¶ 20 The State then called Chicago police officer Cesar Valerio, defendant's second cousin. On October 23, 2005, he received a call from another cousin who told him something bad had happened and that defendant was in trouble. Officer Valerio was off duty at the time, but learned that defendant was a suspect in a homicide investigation. He received a call from defendant, who informed him that he wanted to turn himself in. He met defendant at a gas station and placed him under arrest. On cross-examination, Officer Valerio testified that he took defendant into custody without incident. He spoke to defendant several times before taking him into custody. He said defendant's behavior was "erratic" and that defendant had been crying.
¶ 21 William Moore, a forensic investigator for the Chicago police department, testified on behalf of the State. Moore responded to the scene of the incident on October 23, 2005, at approximately 4:30 p.m. with his partner. After talking to the detectives on the scene, Moore and his partner processed the scene by taking photographs and doing a walkthrough. He observed fired cartridge cases, fired bullets, a bloody knife, a pair of glasses, pieces of a door frame and several blood standards. He recovered fingerprints from the rear kitchen door. He collected blood swabs. He photographed the doors in the apartment for signs of forced entry. He found the female victim's body on the rear porch and he observed a bullet wound to her back and one to her chest. On cross-examination, Moore testified that he did not find a weapon.
¶ 22 The State next called Detective Anthony Noradan of the Chicago police department. On the day of the incident, Detective Noradan and his two partners received an assignment to investigate a shooting at Crespo's apartment. He testified that after the incident, David Rios was taken to the hospital, but Crespo's body remained on the rear porch. After arriving on the scene, he had Ashley and Jesse Rios transported to the police station and then he went to the hospital to check on the status of David Rios. His partners stayed behind and processed the scene. He spoke with David Rios at the hospital and with Ashley and Jesse Rios at the police station. He then showed Ashley and Jesse Rios a photographic array. Both Ashley and Jesse identified defendant. Later, he learned defendant had turned himself in. The next day, he arranged for Ashley and Jesse to view a lineup. They both identified defendant.
¶ 23 Several stipulations were presented. The parties stipulated that Crespo's landlord, Jorje De La Vega, if called to testify, would testify that he lived on the second floor of the apartment building where the incident occurred. He heard two or three gunshots and then a couple more a second later. Although he tried to call the police, the landline was dead. Jesse Rios came to his front door and called the police ...