Court of Appeals of Illinois, First District, Third Division
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[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 10 CR 5564. The Honorable Joseph G. Kazmierski, Jr., Judge, presiding.
Defendant's conviction for first degree murder in the fatal beating of his wife following the discovery of her infidelity was upheld over his contentions that an instruction should have been given on second degree murder because his discovery of suggestive text messages and photographs equated to the personal discovery of adultery, and that he and his wife engaged in mutual combat, that instructions on involuntary manslaughter, aggravated battery and domestic battery were improperly rejected, that allowing the jury to see autopsy photographs of the victim's head injuries was prejudicial and that his cross-examination of a witness who testified about a prior incident in which he slapped the victim was improperly admitted, since an instruction on provocation in such circumstances is limited to cases where the parties are in the act of adultery or immediately before or after the act and the killing follows immediately, the circumstances in defendant's case were not legally adequate provocation, with respect to the claim of mutual combat, the victim was under the influence of cocaine, defendant initiated the fight, and he responded disproportionately, the request for the lesser included instructions was properly denied, the autopsy photographs were relevant to the extent and nature of the victim's injuries and any error in the limitation of defendant's cross-examination of the witness who testified about the incident in which defendant slapped the victim was harmless.
Samuel Adam and Lauren Kaeseberg, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Miles J. Keleher, and Lisanne Pugliese, Assistant State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.
[¶1] A newlywed, defendant Luis Viramontes, discovered his wife's infidelity by reading text messages and seeing naked pictures she exchanged with her lover. Married for only a few months after a 16-year relationship and two children, Luis confronted her and she admitted to the liaisons. He then brutally beat her as she struggled to defend herself. She later died from her injuries. At trial, Luis admitted he caused the injuries that led to the death, but claimed he was seriously provoked by her infidelity and that she willingly engaged in aggression against him. A jury convicted Luis of first degree murder.
[¶2] Luis contends the trial court should have given a second degree murder instruction because the suggestive text messages and photographs equate to personal discovery of the adulterous act itself and warrant a provocation instruction. But, Luis learned of his wife's infidelity from her cell phone and through her admission, neither of which amounts to a legally adequate provocation, and, therefore, the trial court properly refused the second degree murder instruction.
[¶3] As to provocation based on both parties willingly entering a fight on equal terms (mutual combat), the extent and severity of his wife's physical injuries show that she and Luis were not on equal terms. The trial court properly held Luis was the aggressor and, therefore, provocation by mutual combat was not established.
[¶4] Luis also contends the trial court erred in denying his request for instructions on involuntary manslaughter, aggravated battery, and domestic battery. Again, the trial court properly refused to give the instructions, holding the facts and circumstances did not warrant giving instructions on these lesser-included offenses.
[¶5] In addition, Luis objects to the trial court allowing the jury to view two autopsy photographs of his wife's head injuries, which he claims were unduly prejudicial and inflammatory. We find the trial court properly exercised its discretion by admitting the photographs to assist the jury in understanding the medical examiner's testimony about the nature of the injuries and the basis for her opinion that homicide was the cause of death.
[¶6] Lastly, Luis argues the trial court improperly limited his cross-examination of State witness Liliana Almazan, which might have revealed bias or motive to lie. We find the trial court did not abuse its discretion in limiting the defense's cross-examination.
[¶8] On January 9, 2010, Luis and his wife Sandra were still newlyweds, having married a few months earlier. Their relationship as a couple, though, went back 16 years, and for the last 8 years, they had lived together and had two young children. The couple went out for dinner and drinks with family and friends to celebrate Luis's birthday. Sandra's mother watched their children overnight. The party ended around 11 p.m. Luis testified that on the drive home, he noticed Sandra received a text message, which he thought was strange. Sandra fell asleep in the car, so when they arrived home, Luis carried her inside and put her to bed. When he returned to the car for their belongings, he checked Sandra's phone and saw a sexually explicit text message exchange between Sandra and " Denise."
[¶9] Luis testified that, concealed to him at the time, Sandra was having an extramarital affair with Andres (Andy) Ochoa, a former coworker. Sandra and Andy met in 2004 and their relationship became sexual in 2007. Sandra saved Andy's phone number in her cell phone as " Denise." On January 9, Sandra and Andy exchanged 18 text messages. Their conversation mentioned meeting up and a request from Andy for suggestive photographs. In reply, Sandra sent four or five naked pictures of herself.
[¶10] Luis testified that when he saw the messages and photographs, he " felt like [his] whole life was turned upside down." He tried calling Denise's number to discover who Sandra had been texting, but no one answered. Luis testified that when he saw the text from Denise stating " you're making me hard," he knew it was from a man and that Sandra was having an affair.
[¶11] Luis testified he then went into the house to confront Sandra about the affair. He found her in the bathroom snorting cocaine and they argued about the drugs.
[¶12] Their argument continued into the living room, where Luis confronted Sandra about the text messages and naked photographs. Sandra asked for her phone back. Luis tried again to call Denise's number. Sandra told Luis that " Denise" was really Andy and that she had been intimate with him and they were in love.
[¶13] Luis testified he was " angry" and " devastated." He hit Sandra in the face with an open hand. Sandra ran into the bedroom and locked the door. Luis continued to yell at Sandra, calling her vulgar names and reading the text messages aloud. Luis then spray painted the living room and hallway walls and their wedding pictures with explicit words related to the affair. He sat at the kitchen table, put his head down and cried.
[¶14] Sandra came out of the bedroom and when she saw the spray-painted walls, ran toward Luis screaming and swinging at him. She began to hit him in the chest, so he grabbed Sandra's shoulders, " threw her against the door, and then tossed her over the table." Luis told Sandra he was leaving her. She got up and ran at him again. Luis grabbed her by the shoulders and threw her against the refrigerator and then onto the kitchen floor, telling her " Get off me. Leave me. I'm leaving you. I'm not going to be with you no more." He then walked toward the back door.
[¶15] Sandra got up from the floor, threw her wedding rings at Luis and said she did not want to be married. Luis testified Sandra then told him that when he had driven her to a doctor's appointment for a cancer scare, she had misled him and was really having an abortion. Sandra told him, " I don't want to have no more kids with you, that's why I killed your baby. I had an abortion and killed your baby." Luis testified that after Sandra told him about the abortion, he " felt like [he] was part of what she had did." He testified he " lost it" and " couldn't control [himself] after that." Luis grabbed Sandra and threw her into the refrigerator, causing her to hit her head hard. He then threw her onto the floor, where she hit her head again. On the floor in the fetal position, Sandra tried to cover herself as Luis hit her in the face with his hands four or five times.
[¶16] Luis testified that although he hit and threw Sandra, he was not trying to kill her. He said he was close to potential weapons, including knives, but did not use any because, as he put it, " I wasn't trying to kill her." Luis went outside to calm down, and texted " Denise," who did not respond. Around 2:30 a.m., he called his brother, Fernando, and asked him to come over.
[¶17] When he went back inside the home, Sandra was in bed. He went over to her and asked if she was alright. She responded, " Babe, I'm sorry," to which he replied he was sorry too. Luis testified Sandra told him to lay next to her and he did . He claimed she hugged him and told him she loved him. Luis testified he tried to comfort her and then she went to sleep.
[¶18] Fernando Viramontes testified he had been at the birthday party with the couple earlier that night. At dinner, people were drinking alcohol, including Luis and Sandra. When everyone left the restaurant, Fernando offered to drive Luis and Sandra home because they had been drinking, but Luis declined.
[¶19] Fernando testified Luis called him around 2 o'clock the next morning and told him he had argued with Sandra and she was not breathing correctly. Luis asked Fernando to come over. When Fernando asked if it could wait until the morning,
Luis said he needed someone to talk to. Fernando arrived at the couple's home shortly after 3 a.m. He noticed the walls had been spray painted. He looked in the bedroom and saw Sandra. He testified she did not look hurt, and he thought she was sleeping off her intoxication. He did not notice her breathing unusually and did not believe she needed medical attention. When he asked Luis what happened, Luis seemed confused and repeated the same phrase over and over, " I trusted her, I trusted her." Luis told Fernando he had hit Sandra with his hands.
[¶20] Fernando testified he suggested Luis lay down with Sandra and comfort her. Fernando slept in a separate bedroom. Luis woke Fernando around 8:30 a.m. and told him that Sandra was breathing differently. Fernando ran to the bedroom. Sandra's breathing was heavy; she mumbled and moaned. He noticed redness on her face, shoulders, and chest. And, he saw blood on the mirror and bed sheet. Fernando again asked Luis what happened. Luis told him to call an ambulance, which Fernando did. According to Fernando, Luis was " very nervous, shocked, [and] confused" and in a state he had never seen his brother. Luis left the house at his instruction, but called " countless times" throughout the day to check on Sandra. Luis contacted a defense attorney and met with him that day.
[¶21] Fernando was impeached with his grand jury testimony. Before the grand jury, Fernando testified that when he first arrived at the house, he saw bruises on Sandra's face, arms, legs, and feet. He also noticed she was breathing heavily and moaning. In addition, he testified that Luis told him he hit Sandra with his fists, hands, and feet, and that they should let Sandra rest. At that time, Fernando said Luis wanted to lay by Sandra and comfort her.
[¶22] Sandra's mother testified that just before 9 a.m., she received a call from Luis. Luis told her, " I'm sorry I beat up Sandra." Sandra's mother went to the house. When she arrived, she noticed spray paint on the walls. In the bedroom, she found Sandra lying in bed with Fernando in the room staring at her. She said Sandra was " all beat up" and " cold, hard and clammy" to the touch. Sandra's breathing was shallow. She rubbed Sandra's face and asked her to ...