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People v. Viramontes

Court of Appeals of Illinois, First District, First Division

January 9, 2017

HERIBERTO VIRAMONTES, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County No. 10 CR 9341 Honorable Jorge Luis Alonso, Judge Presiding.

          Attorney for Appellant Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, (Patricia Mysza and Melinda Grace Palacio, of counsel), - Heriberto Viramontes.

          Attorney for Appellee Kimberly M. Foxx, State's Attorney, County of Cook, (Alan J. Spellberg, Matthew Connors and Iris G. Ferosie, of counsel), - The People of the State of Illinois.

          JUSITCE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Mikva concurred in judgment and opinion.



         ¶ 1 Following a jury trial, defendant was convicted of multiple felonies including armed robbery and attempted murder. The testimony and evidence presented showed that in the early morning of April 23, 2010, the defendant, Heriberto Viramontes, along with his co-defendant, Marcy Cruz, were driving around the Bucktown neighborhood of Chicago, when defendant suggested they go rob some "white hoes." They parked the vehicle they were in and defendant grabbed a bat before exiting the vehicle. The victims were walking down Damen Avenue when defendant approached them from behind. He swung his bat at the first victim, Stacy Jurich, striking her in the head. He then struck the other victim, Natasha McShane, also hitting her in the head. He then struck Jurich a second time in the neck before making off with their valuables. Both victims spent weeks in the hospital and suffered permanent injuries. McShane's injuries were so extensive she will require 24-hour care for the rest of her life.

         ¶ 2 On appeal, defendant challenges his conviction for attempted murder, the admission of jail house phone recordings, and the trial court's refusal to tender all of Marcy Cruz's mental health records. After a review of the facts and relevant case law, we conclude the facts of this case are such that a jury could find the defendant intended to kill both victims when he violently struck each of them in the head with a baseball bat. We further find the trial court did not abuse its discretion in admitting jail house phone tapes, because the State had laid a sufficient foundation. Finally, we conclude that defendant's failure to include mental health records on appeal results in the forfeiture of this issue.

         ¶ 3 JURISDICTION

         ¶ 4 The defendant appeals from a final judgment of conviction in a criminal case. Defendant was sentenced by the trial court on June 17, 2014. He timely filed his notice of appeal on the same day. 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. Rs. 603, 606 (eff. Feb. 6, 2013).

         ¶ 5 BACKGROUND

         ¶ 6 Given the amount of testimony and evidence presented, this background presents only those facts necessary for the disposition of this appeal.

         ¶ 7 Defendant, Heriberto Viramontes, was charged by indictment with two counts of attempted first degree murder, two counts of armed robbery, one count of armed violence, two counts of aggravated unlawful restraint, eight counts of aggravated battery, two counts of unlawful restraint, four counts of misuse of a credit card, and two counts of use of a credit card by another. Defendant was originally charged along with co-defendant Marcy Cruz. The charges arose out of an incident that occurred on April 23, 2010, when defendant robbed Natasha McShane and Stacy Jurich of their purses and other items after violently striking them both on the head with a baseball bat.

         ¶ 8 Prior to trial, co-defendant Cruz's counsel requested a forensic clinical service evaluation for fitness, and she was found fit to stand trial. Defendant also filed a motion to bar evidence that included over 40 compact discs (CDs) of phone calls from defendant while in Cook County Jail. The court denied the motion, ruling there was nothing about the calls that made them inadmissible or inappropriate.

         ¶ 9 Also prior to trial, Cruz pled guilty to two counts of attempted first degree murder in exchange for a 22-year sentence. In exchange for her guilty plea, Cruz agreed to testify against defendant at trial. Defendant filed a motion to produce Cruz's mental health records. In response, the State alleged defendant failed to show how the medical records were relevant to Cruz's credibility. The trial court ordered records from Forensic Clinical Services, reviewed the information, and issued subpoenas to several hospitals. The court determined the following records were admissible and relevant: Cruz's admission to Cermak Hospital on April 29, 2010, after her arrest; records from Forensic Clinical Services; and records from Norwegian American Hospital from August 2008. The trial court allowed production of Cruz's most recent mental health records but denied access to earlier records when Cruz was younger. The trial court explained that when deciding which mental health records were discoverable, the court balanced Cruz's right to confidentiality against defendant's sixth and fourteenth amendment rights. The court stated it looked for evidence of psychosis, alcohol, and/or drug addiction and other psychopathic traits in deciding what to disclose.

         ¶ 10 At trial, one of the victims, Stacy Jurich, testified that in 2010, she was living in the Bucktown neighborhood in Chicago, Illinois. Jurich met the other victim, Natasha McShane, that same year after McShane moved to Chicago from Ireland. On April 22, 2010, Jurich made plans to meet McShane for dinner after work. They met at 9:00 p.m. at Cans, a restaurant. McShane had a shopping bag from H&M, her purse and her class materials with her. Jurich also had her purse with her. Later, Jurich and McShane walked across the street to the Tavern restaurant, had cocktails and danced.

         ¶ 11 Jurich testified she and McShane left the Tavern restaurant at around 3:00 a.m., and started walking toward her house. They walked north on Damen Avenue and as they walked underneath a viaduct, Jurich was hit in the head from behind. She felt excruciating pain, lost her equilibrium and suddenly had the taste of metal in her mouth. Jurich fell forward, caught herself, and looked to her left to see McShane being hit in the head with a silver baseball bat. McShane fell down immediately and lifelessly onto the sidewalk. Jurich was hit a second time in her neck. She testified her purse was pulled from her while the robber called her a "stupid bitch." After her purse was pulled from her arm, Jurich saw a man wearing a hoody running away carrying her purse and McShane's belongings.

         ¶ 12 After the assailant fled, Jurich tended to McShane, trying to support her head, which was extremely bloody. Jurich waved down a taxi and begged the driver to call 911, which he did. When the paramedics arrived Jurich felt severe pain, nausea, and disoriented. As Jurich spoke with police, she felt weak as if she would pass out. After that she could not remember anything else except briefly being in an ambulance, then being in a bright room with people shouting her name.

         ¶ 13 Jurich testified she woke up in the Intensive Care Unit (ICU) and felt scared because she did not understand what had happen to her. Her body felt like it was "filled with sand" and she could not move the left side of her body. A few days after being admitted, Jurich had a conversation with the police and informed them that her initial description of the assailant's race was incorrect and his skin was medium brown and not black. She was also able to identify the items McShane had in her possession the night of the attack.

         ¶ 14 The back of her skull had been cracked open and was stapled shut at the hospital. She had seizures while hospitalized and was medicated. Upon discharge she was not permitted to drive. At the time of trial, Jurich testified that the incident resulted in the loss of her peripheral vision, she continued to have balance issues, and continued to experience excruciating headaches.

         ¶ 15 Shelia McShane testified that her daughter Natasha had returned to Ireland and could not travel to Chicago to testify because of her brain injury. Mrs. McShane testified she cared for her daughter five days a week and Natasha's father, Liam McShane, cared for her the other two days of the week. On April 24, 2010, she received a telephone call from Chicago that her daughter was in the hospital and she needed to come immediately. At the time, her daughter had only been in Chicago for four months, having arrived in January 2010 to complete her Master's Degree in Urban Environmental Planning at the University of Illinois Chicago. Mrs. McShane last saw her daughter prior to the incident in January 2010, when she drove her to the airport to move to Chicago.

         ¶ 16 Mrs. McShane testified that prior to her injuries, her daughter was very outgoing, full of life, full of energy, loved to travel, and was artistic. When Mr. and Mrs. McShane arrived in Chicago, they went directly to Illinois Masonic Hospital to visit their daughter who was unconscious with her hair was partially shaved off from surgery that relieved pressure off of her brain. Her eyes were swollen and blackened. She remained unconscious for the entire three weeks Mr. and Mrs. McShane were in Chicago. In July 2010, Natasha returned to Ireland via air ambulance.

         ¶ 17 Mrs. McShane testified that after Natasha returned to Ireland, she experienced a seizure that left her catatonic and in a wheelchair. Prior to the seizure, she had been making slow progress but the seizure set her back significantly. She also had an infection after surgery and a second seizure resulting in a hip fracture. At the time of trial, she could not read, write, or talk. She is mostly wheelchair bound. Mrs. McShane identified a video showing her daughter's physical therapy at the Rehabilitation Institute of Chicago and more recent footage from Ireland.

         ¶ 18 Dr. Marius Katilius, an expert in the field of trauma surgery, treated both Jurich and McShane at Illinois Masonic Hospital. On April 23, 2010, when Dr. Katilius first observed Jurich, he saw a scalp laceration actively bleeding. He stopped the bleeding with a suture, tied off the "bleeder" and closed the laceration with staples. Prior to leaving the Emergency Room (ER), Jurich had seizures, which Dr. Katilius opined were trauma-related. He diagnosed Jurich with a traumatic brain injury caused by blunt force trauma. He opined a hit with a baseball bat was consistent with the injuries she sustained. After leaving the ER, Jurich was transported to the Intensive Care Unit (ICU) for close observation of her neurologic status.

         ¶ 19 McShane arrived at Illinois Masonic Hospital at 4:00 a.m. and after an examination, Dr. Katilius inserted a breathing tube in McShane's windpipe and observed several scalp lacerations. McShane had a skull fracture of the right temporal and parietal bones, hemorrhagic contusions, a subarachnoid hemorrhage, and a subdural hematoma. He also opined McShane's injuries were consistent with being hit with a baseball bat.

         ¶ 20 Commander Joseph Salemme testified that on April 23, 2010, he learned of an investigation regarding an attack at 1800 N. Damen. Commander Salemme joined the investigation and focused mainly on obtaining Jurich's and McShane's cellular phone information as well as their bank records and credit card information. On April 25, 2010, Commander Salemme learned information regarding Stacey's cell phone and went to 3149 N. Springfield in Chicago, which was a 20-unit apartment building. He and other police officers canvassed the building. During the canvass, Commander Salemme met Marcy Cruz. The next day Commander Salemme learned Jurich's cell phone had been used to call a phone number registered to Josue Espinoza, Cruz's boyfriend. Once at 3149 N. Springfield, Commander Salemme saw Marcy Cruz walking towards a grey van; she was placed under arrest and her van was impounded. Later, the police recovered a baseball bat with silver duct tape from the rear of the van.

         ¶ 21 Commander Salemme testified that on April 26, 2010, at around 11:30 p.m., he assisted in locating defendant and Kira Lundgren at 2715 West Evergreen. Defendant was placed under arrest and Commander Salemme interviewed Lundgren.

         ¶ 22 Dr. Leonard Irwin Kranzler, an expert in neurosurgery, treated Jurich and McShane on April 23, 2010, at Illinois Masonic Hospital. He learned from McShane's CAT scan she had a traumatic subarachnoid hemorrhage, as well as a cerebral contusion. He recommended monitoring the pressure in her skull. When he first examined McShane, he saw the pressure in her skull was not elevated but her brain was swollen. A few hours later, the pressure in McShane's brain increased considerably so she was treated with a diuretic. McShane regressed to the point where her pupils dilated, indicating the efforts to control the swelling were failing, so Dr. Kranzler performed emergency surgery to alleviate the pressure on her brain. The surgery ...

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