Appeal from Circuit Court of Clark County No. 10CF63 Honorable Tracy W. Resch, Judge Presiding.
Justice Holder White concurred in the judgment and opinion.
¶ 1 On January 14, 2011, a jury found defendant, Maria S. Pacheco (born June 26, 1994), guilty of robbery (accountability), unlawful possession of a stolen vehicle, and first degree murder (accountability). The trial court sentenced her to 30 years in prison for murder pursuant to section 5-130(1)(c)(i) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130(1)(c)(i) (West 2008)). Defendant appeals, arguing the following: (1) the trial court erred in refusing to tender separate jury instructions for each charged count of murder; (2) trial counsel provided ineffective assistance of counsel by (a) conceding her guilt of felony murder based on his misapprehension of the felony murder rule, (b) failing to impeach the State's star witness with text messages he sent to other women, and (c) failing to object to the State improperly leading its star witness with questions about text messages between the witness and defendant; (3) the automatic exclusion of 15- and 16-year-olds charged with felony murder or murder by accountability from juvenile court, thereby requiring the automatic application of an adult sentencing range, violates due process, the eighth amendment to the United States Constitution, and the proportionate penalties clause of the Illinois Constitution; (4) the mandatory application of truth in sentencing to minors convicted of murder by accountability or felony murder violates the eighth amendment and the proportionate penalties clause; and (5) defendant is entitled to additional sentence credit. We affirm defendant's conviction but remand for the trial court to grant defendant additional sentencing credit.
¶ 2 I. BACKGROUND
¶ 3 On July 15, 2010, the State charged defendant as an adult with three counts of first degree murder based on her accountability for the death of her uncle, Arnulfo Pacheco. These three counts were based on defendant's intent to kill (720 ILCS 5/9-1(a)(1) (West 2008)) (count I), knowledge the acts would result in the victim's death (720 ILCS 5/9-1(a)(1) (West 2008)) (count II), and knowledge the acts would create a strong probability of the victim's death (720 ILCS 5/9-1(a)(2) (West 2008)) (count III), respectively.
¶ 4 On December 3, 2010, the State added a fourth count alleging first degree murder based on accountability (720 ILCS 5/9-1(a)(3) (West 2008)) (count IV), alleging defendant's accomplice, Jarrod Riley, intentionally struck Arnulfo Pacheco in the head with a hammer causing his death while defendant and Riley were committing a robbery.
¶ 5 On December 30, 2010, the State charged defendant with robbery based on accountability (720 ILCS 5/18-1 (West 2008)) (count V), alleging she knowingly took $500 from the victim by the use of force. The State also charged defendant with unlawful possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2008)) (count VI).
¶ 6 On January 11, 2011, defendant's trial commenced. After the State laid out its case in its opening argument, defense counsel made his opening statement, stating in part:
"We believe the evidence will show that all this young girl wanted was to run away with her fiancé. She did not intend to have her uncle killed. She did not know he would be killed. In fact, did not know he was killed until after she came downstairs. Arnulfo Pacheco was killed only because Jarrod Riley lost control in his jealous rage and she wasn't present.
We think the evidence will show she may be guilty of some other things, such as Possession of the Stolen Vehicle, but the evidence will not show that she's guilty in any way of Murder, and we would ask you to find her not guilty of that offense."
¶ 7 The State's first witness was Dr. Roland Kohr. Dr. Kohr testified he performed an autopsy on the body of Arnulfo Pacheco and found the cause of death was "[b]lunt force injuries to the head combined with sharp forced injury to the neck and head, with extenuating hemorrhage."
¶ 8 Illinois State Police crime scene investigator Daniel Glover testified he collected a hammer and a piece of glass with sharp edges from the house where Arnulfo Pacheco was found. Investigator Glover also testified he collected a broken videocassette recorder (VCR) located near the victim's body.
¶ 9 Investigator Alex Latimer of the Camden police department in Camden, Tennessee, testified he received information from the Illinois State Police on July 16, 2010, a couple wanted for murder might be in his area. Latimer was given the names and physical description of the couple and a vehicle description for a 2005 Chevy Avalanche with Illinois registration. Latimer testified he located the vehicle at approximately 4 p.m. Latimer then took defendant and Riley into custody.
¶10 Illinois State Police special agent Holly Stroud-Finney testified she was the lead agent in the investigation in this case. She traveled to Tennessee after defendant and Riley were arrested and interviewed both of them. Before the interviews, she had obtained from Verizon text messages defendant and Riley sent each other between July 5, 2010, and July 13, 2010. As the lead agent in the investigation, Stroud-Finney knew how the victim died and knew duct tape had been wrapped around the victim's face and neck and bleach had been found at the residence. Information contained in the text messages matched evidence found at the crime scene. On cross-examination, Stroud-Finney acknowledged the information she received from Verizon only disclosed the phone numbers from which the text messages were sent and not who actually sent the messages.
¶11 Jarrod Riley was then called for the limited purpose of establishing the contents of the text messages the investigators had received from Verizon. Riley testified he and defendant communicated via text message. Riley testified People's exhibit No. 410A-R accurately contained the text messages exchanged between him and defendant during the seven-day period in question. Riley testified he sent the text messages from his phone. He also testified defendant was protective of her phone so that no one else could use it.
¶12 Defense counsel challenged the admission of the text messages, arguing inadequate foundation and the messages constituted hearsay. The court admitted the text messages into evidence, finding they were "sufficiently authenticated by circumstantial evidence such as appearance, contents, substance, internal patterns and other distinctive characteristics." The court told the jurors they were not to assume the text message conversations were actually conducted by defendant and Riley, but they should make their own determination who authored the messages.
¶13 Riley testified he and defendant started dating in the spring of 2010 and began having a sexual relationship. He was 20, and defendant was 15. He stated defendant was the first girl he loved. In June 2010, defendant had her sixteenth birthday. Defendant told Riley she thought her uncle, Arnulfo, was going to get her a car for her birthday, but this did not happen. Riley testified defendant was not happy at home. She told him she always fought with her parents and hated her uncle. She said her father hit her and her mother. Riley testified defendant wanted to run away and he wanted to help her.
¶14 Riley testified he and defendant talked and texted about using bleach to knock out her uncle so they could take his car. He sent her a text message asking if she had rope or duct tape. She responded she thought there was some in the garage. Defendant later texted Riley to say they were out of duct tape, but she would buy some and keep looking for rope. Defendant suggested taking her father's checkbook with them to pay for things.
¶15 Riley texted defendant on July 10, 2010, and told her he wanted to leave on Monday. The texts showed the plan was for him to get to defendant's house, wait for her uncle to arrive, knock him out, tie him up, and take his car before he woke up. Defendant responded the plan sounded good. She said she would need to make sure she was home alone. Riley sent her another text and said she needed to soak a rag in bleach for Monday. Defendant confirmed she received the text message. Riley testified the rag and bleach were ultimately going to be used on Arnulfo.
¶ 16 Riley texted defendant and said he was going to take a cab to Marshall on Monday. Defendant replied her uncle would leave for work at 10 or 11 so Riley would need to get there earlier than that. Riley sent her a text message asking how they would get Arnulfo into her house. Riley testified he sent defendant another message telling her not to stop him no matter what he did to her uncle. She responded she would not stop him.
¶ 17 According to Riley's testimony, their plan later changed to killing Arnulfo and taking his truck. Riley testified on July 11, 2010, he sent defendant a text message stating they were going to steal her uncle's "shit" after "i do what im doing to your uncle." He then sent defendant a text message which asked if defendant had any sharp knives at her house. Defendant responded shortly thereafter asking what Riley was planning to do. Riley sent her a text, stating he was going to " 'F' him up but if he fights back well you understand, righ." Defendant responded asking what Riley meant by " 'F' him up." She also said she did not think they needed to be "killing anyone yet."
¶18 Riley sent defendant a text message directing her to tell her uncle something was wrong with their toilet as a ruse to lure him into the house. He asked what time her uncle would be at her house. Defendant responded her uncle would be there around 10 a.m. before leaving for work. Riley sent defendant a text which said, "Then lets do this and be free and do unto ppl that has been done unto us." Riley said his intent was to kill defendant's uncle. Defendant responded texting "yes lets." Riley sent another text to defendant, which read, "I love you more than anything you might see a side of me tomorrow very few ppl see don't be scared cuz i would never hurt you." Riley sent defendant a message, texting, "I am already know what i am doing don't stop me soon you will have to be cold." Defendant responded, texting, "Huh." Riley texted her the following message, "Don't stop me no matter how it turns out."
¶19 Shortly thereafter, Riley asked defendant if she found bleach and a rag. Defendant replied she had. Riley also texted defendant asking whether she found a good strong knife. Defendant responded the knives she found were not that sharp or strong.
¶ 20 According to Riley, defendant told him her uncle inappropriately touched her by rubbing her inner thigh and lower back and kissing her on the cheek. Riley sent defendant a text, which read, "Was just going to knock him out but he is touching little girls and tried to touch my fiancé it ends tomorrow." Defendant replied, texting, "yea thats wat i thought you were planing to do."
¶ 21 Riley sent defendant another text, stating, "Lol i love you you are starting to sound and act like me thats good." Defendant responded, texting, "Lol I can be evil bad cruel sometimes lol." Riley replied, texting, "Be it more often just not to me ok baby it will help us in the future a lot." Riley sent defendant another message, texting, "Tomorrow we kill a bad man then we start our lives over just you and me." Defendant responded, texting, "Yes just you and me."
¶ 22 Riley later asked defendant if she had a baseball bat. Defendant said she did not. Defendant sent Riley a message, stating, "Have bunch of metal rods in garage tho." They texted about the size and strength of the rods. Riley sent defendant a message, texting, "I don't want them to break i want them to be strong im thinking just cutting his throat." Defendant responded, "They wont break. Do wat you need to do. All i ask is that i see none of it if possible." Defendant later texted Riley her uncle deserved "it, " but she did not want to see "it."
¶ 23 Riley testified he texted defendant shortly after midnight on July 12, 2010, "Be happy are you sure you want this to still happen." He was talking about killing her uncle and running away. Defendant responded, "I am happy. Yes i'm sure that i want to do this."
¶ 24 Riley sent defendant a text the morning of July 12, 2010, asking if she was "ready for this baby." Defendant responded she was. As he was traveling to Marshall, Riley and defendant exchanged text messages about her family's whereabouts. Riley went to defendant's house after her family left. Defendant got the bleach, and they moved a couch in front of the entryway to the kitchen. Riley put the bleach in a bowl and soaked the rag.
¶ 25 When defendant saw her uncle outside the house, she called to him from the kitchen window and said something was wrong with the bathroom. Defendant did not tell her uncle Riley was in the house. After Arnulfo checked on the bathroom, defendant pushed him at Riley. According to Riley, defendant told him to remember what her uncle had done to her. Riley grabbed Arnulfo by the throat and covered his mouth with the bleach-soaked rag. Although he could not see defendant at that time, he testified he could "tell she was there."
¶ 26 Riley testified the bleach did not knock Arnulfo out like he expected. Instead, Arnulfo tried to hit Riley with a hammer. Riley took the hammer from Arnulfo and hit him with it. The struggle between Riley and Arnulfo went from the foyer to the dining room of the home. Riley testified he did not know how many times he hit the victim with the hammer. Arnulfo was still struggling, and Riley hit him over the head with a VCR and then smashed a glass tabletop over his head. The glass tabletop broke, and Riley grabbed a piece of the glass and stabbed Arnulfo twice in his neck. Arnulfo stopped struggling at that point. Riley then taped the bleach-soaked rag over the victim's mouth with the duct tape defendant had brought into the house.
¶ 27 Riley testified Arnulfo was screaming defendant's name during the struggle, but she did nothing to aid him. After Riley taped the rag over Arnulfo's mouth, he saw defendant in the foyer, shaking. Riley asked if she was okay, and she said yes. Defendant went upstairs and grabbed her clothes and other things, which were already packed. She and Riley then started loading the victim's truck. They left the house within 5 to 10 minutes after Arnulfo was killed. After they got in Arnulfo's truck, defendant asked Riley if he got Arnulfo's wallet. He told her he did not. He testified defendant "gave me a look, " and he went back in and got the wallet.
¶ 28 Riley testified defendant never tried to get away from him or call the police. They were arrested in Camden, Tennessee. According to Riley's testimony, while he and defendant were driving through Indiana, defendant told him she thought they should live a life of crime like Bonnie and Clyde, robbing and killing people.
¶ 29 On cross-examination, Riley testified he pled guilty to one count of first degree murder, one count of robbery, and one count of possession of a stolen vehicle. He had not yet been sentenced. Riley testified he did not have an agreement with the State's Attorney to receive anything for his testimony. However, Riley said his testimony could benefit him during sentencing. Riley acknowledged what he told investigators after his arrest differed from his testimony.
¶ 30 After his arrest, Riley told investigators his plan was to knock out or tie up Arnulfo and take his car. Riley admitted telling investigators he killed Arnulfo in a blind rage after the victim smiled at him. Riley also told investigators he was just joking around in the text messages before the murder. He admitted he did not originally tell investigators defendant pushed her uncle into him. Riley also acknowledged he did not get a knife or any other kind of weapon from the kitchen or anywhere else to use on Arnulfo, even though he testified his intent before the attack was to kill the victim. The only thing Riley had when he grabbed Arnulfo was the rag soaked in bleach and the duct tape.
¶ 31 After Riley's testimony, the State recalled special agent Stroud-Finney. Stroud-Finney testified she traveled to Tennessee after defendant's arrest. That night, Stroud-Finney interviewed defendant at the Camden police department in Camden, Tennessee. The interview was video recorded. The video of the interview was played for the jury.
¶ 32 During the interview, defendant said she told Arnulfo something was wrong with the bathroom sink when he came to the house to return some dishes. She also admitted she was present when Riley initially grabbed Arnulfo and put the bleach-soaked rag over his mouth. She then ran outside, went around the house to the front door, reentered the home, saw Riley struggling with her uncle, and went upstairs to her bedroom. She could hear her uncle screaming at ...