People v. Alvarez-Garcia

• Decision Date: 29 October 2009
• Docket Number: No. 1-07-1022.,1-07-1022.
• Citation: 344 Ill.Dec. 59,936 N.E.2d 588,395 Ill.App.3d 719
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jesus ALVAREZ-GARCIA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

936 N.E.2d 588

395 Ill.App.3d 719

344 Ill.Dec. 59

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jesus ALVAREZ-GARCIA, Defendant-Appellant.

No. 1-07-1022.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 29, 2009.

Patricia Unsinn, Deputy Defender (Emily E. Filpi, of Counsel), Chicago, IL, for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County (James E. Fitzgerald, Mary P. Needham, William C. Swallow, of Counsel), Chicago, IL, for Plaintiff-Appellee.

Justice NEVILLE delivered the opinion of the court:

***62Jesus Alvarez-Garcia was arrested on June 27, 2002, for the murder of his estranged wife, Maritza Baez, and for the aggravated battery of Michelle Baez, Maritza Baez's unborn child. Later, he was charged by indictment on October 31, 2002, with nine counts of first degree murder and one count of the aggravated battery with a firearm of Maritza Baez. Three months after Alvarez-Garcia was indicted, Michelle Baez died and the State charged the defendant with an additional eight counts of first degree murder based on felony murder. Prior to the start of his trial on January 18, 2005, Alvarez-Garcia waived his right to a death penalty hearing and to a jury trial and elected to have a bench trial. At the conclusion of the trial, Alvarez-Garcia was found guilty of both murders and the trial court imposed a death sentence on March 30, 2005. The trial court subsequently vacated the death sentence and sentenced Alvarez-Garcia to a term of natural life on March 9, 2007.

Alvarez-Garcia argues on appeal (1) that his right to counsel was violated because one of the attorneys conducting his defense was not a member of the Capital Litigation Trial Bar as required by the supreme court rules; (2) that the State failed to prove him guilty beyond a reasonable doubt (a) because the State failed to prove that he acted with the intent to kill Michelle Baez, and (b) because the act that constituted the predicate felony for the felony murder conviction was the same act that caused Michelle Baez's death; and (3) that the mittimus should be corrected to reflect two convictions for first degree murder.

BACKGROUND

The record reveals that Alvarez-Garcia and Maritza Baez were married in 2000 but separated in 2001. Baez obtained an order of protection against Alvarez-Garcia on November 15, 2001, and it remained in effect until November 15, 2002, because he made threats on her life. During Baez's separation from Alvarez-Garcia, she became involved with Miguel Rivera and became pregnant in December 2001. According to Rivera, on June 27, 2002, when Maritza Baez was approximately 7 1/2 months pregnant, she left the home she shared with Rivera, her fiancé and the father of her then-unborn child, and traveledto the La Caleza Restaurant at 2521 North Milwaukee Avenue in Chicago. Baez parked her car outside the restaurant in a parking space that was two or three cars away from where Alvarez-Garcia parked his car.

Rivera testified that he was engaged to Baez when she was shot and killed. He was the father of the child who died. Rivera***63explained how he received a telephone call, learned that his fianceé had been shot and traveled to Illinois Masonic Hospital, where she delivered the baby. According to Rivera, Michelle (the baby) remained in Illinois Masonic Hospital and Christ Hospital for a total of 3 months and 18 days on a ventilator.

Carlos Avila, Leticia Ramirez, Donald Piehl, Luis Andrade and Annette Hernandez were eyewitnesses who each testified that they watched as Alvarez-Garcia walked up to Baez's car, raised his gun, reached into her car, and fired three or four shots before returning to his car and driving away from the scene. After the shooting, Avila, Andrade and Hernandez approached the victim to see if they could help. When Avila arrived at Baez's car, he realized it was in gear, so he opened the door, reached in and put the car in park. Avila testified that he spoke with the police at the scene and later that evening when he identified Alvarez-Garcia in a lineup. Avila also identified Alvarez-Garcia during the trial as the person he saw shoot and kill Baez.

Ramirez testified that she saw Alvarez-Garcia in his parked car with a gun. Ramirez saw the shooting and watched as Alvarez-Garcia returned to his car and drove away. Ramirez viewed a photograph during the trial and testified that she recognized Alvarez-Garcia's car and Baez's car.

Piehl testified that he is a mailman whose postal route included the scene of the crime. Piehl was delivering mail when he heard a noise, turned and saw a car hitting the curb, and saw Alvarez-Garcia standing outside the driver's side of Baez's car. Piehl heard three gunshots and watched as Alvarez-Garcia returned to his car and drove away.

Andrade testified that he was working as a technician installing car radios at the Mega Mall located near the scene of the shooting when Baez was killed. Andrade was installing a car amplifier and was outside in front of the store where he worked when the shooting took place. Andrade testified that he heard three gunshots while he was doing his work. Andrade identified Alvarez-Garcia as the person he saw with a gun in his left hand, who pointed it into Baez's car, and after Andrade heard the shots, he watched as Alvarez-Garcia left the scene.

Hernandez testified that she was staying at the Mil-Shire Hotel on June 27, 2002, which is in the area of the shooting. Hernandez wasparked outside the Mega Mall at the time of the shooting. According to Hernandez, Baez was dressed in a flowery maternity blouse when she emerged from a nearby restaurant and got into her vehicle. Hernandez identified Alvarez-Garcia as the man who approached Baez's car, moved to the driver's side, stuck a black gun in the window, shot three or three times, and walked to his car and drove off. Hernandez wrote down Alvarez-Garcia's license plate number and called 9-1-1. After Alvarez-Garcia left the scene, Hernandez ran to Baez's car and saw that she was "shot up." Finally, Hernandez testified that she viewed a lineup and identified the defendant as the person who shot the victim.

Martin Sarmiento testified that he had been acquainted with Alvarez-Garcia for almost 10 years. Sarmiento was working as a cook at the Barbecue Patio Restaurant at 5635 South Ashland Avenue, on June 27, 2002. According to Sarmiento, Alvarez-Garcia visited the restaurant and ate and, during the meal, told him that he had a problem because he shot someone but he did not identify the person. When Alvarez-Garcia arrived at the restaurant, he was carrying a black bag that was approximately the size of a grocery bag. ***64Alvarez-Garcia asked Sarmiento to take him home, which he did. Sarmiento left Alvarez-Garcia in his house while he went back to work and, later, traveled to a second job. Sarmiento was headed home from his second job when he was stopped by the police, who he believed had already arrested Alvarez-Garcia.

Detective Dan Jacobs testified that he was working on June 27, 2002, and was assigned to investigate the shooting of Maritza Baez. According to Detective Jacobs, he received a broadcast message that provided him with the license plate number of a dark-colored car that was found less than a mile from the location of the shooting. Detective Jacobs testified that the automobile's registration documents were found inside the car and indicated that the automobile belonged to Alvarez-Garcia. Detective Jacobs acquired a photograph of Alvarez-Garcia, placed it in a photo array and exhibited it to a witness who had witnessed the shooting. Alvarez-Garcia was identified in the photo array but the officer did not provide the name of the witness who identified him.

Detective Anthony Noradin testified that he was assigned to conduct a follow-up investigation of Maritza Baez's homicide. Detective Noradin traveled to 2526 76th Street, where he spoke with Natali Peralta, whose mother was acquainted with the defendant. After speaking with Peralta, Detective Noradin traveled to an address on 85th Street, where he spoke with Peralta's mother, who worked with Alvarez-Garcia.

Detective Noradin testified that he traveled to 3717 South Hermitage, where Alvarez-Garcia was arrested and a gun was recovered under a bed in the room where he was found sleeping. Alvarez-Garcia was taken to the Area 5 police headquarters, placed in an interview room and read his Miranda rights ¹, which the defendant indicated that he understood. According to Detective Noradin, he spoke with Alvarez-Garcia at approximately 11:15 p.m., on June 27, 2002, in the interview room in the presence of Detectives Schalk and Bogucki. Detective Noradin testified that Alvarez-Garcia told him (1) that he and Baez had been having problems and had separated in November 2001; (2) that Baez indicated to him that she had been unfaithful; (3) that Baez told him she wanted a divorce; (4) that Baez told Alvarez-Garcia that she was planning to move in with Miguel Rivera; (5) that, in January 2002, he was driving down Milwaukee Avenue and saw Baez's car parked in front of a restaurant; (6) that he entered the restaurant and confronted his wife about her presence there; (7) that Miguel Rivera threw him out of the restaurant; (8) that Baez swore out an order of protection against him which was served on him by the sheriff at his job; (9) that, on June 27, 2002, Alvarez-Garcia saw Baez seated in her parked car, which was across the street from the restaurant; (10) that Alvarez-Garcia went home, got his gun and returned to the restaurant; (11) that Alvarez-Garcia approached the vehicle on the driver's side and fired shots into the car; and (12) that Alvarez-Garcia did not know that Baez was pregnant when he shot her. The defendant subsequently gave a videotaped version of the statement he made to the detectives.

Alvarez-Garcia also told Detective Noradin that he left the scene of the shooting, drove to the 2100 block of Bingham, put the...