People v. Cruz, 70407

• Court: Supreme Court of Illinois
• Citation: 162 Ill.2d 314,205 Ill.Dec. 345,643 N.E.2d 636
• Docket Number: No. 70407,70407
• Parties: , 205 Ill.Dec. 345 The PEOPLE of the State of Illinois, Appellee, v. Rolando CRUZ, Appellant.
• Decision Date: 14 July 1994

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643 N.E.2d 636 162 Ill.2d 314, 205 Ill.Dec. 345 The PEOPLE of the State of Illinois, Appellee,
v.
Rolando CRUZ, Appellant. No. 70407. Supreme Court of Illinois. July 14, 1994.

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[162 Ill.2d 317] [205 Ill.Dec. 348] Lawrence C. Marshall, of Mayer, Brown & Platt, Chicago, and John J. Hanlon, Asst. Defender, of the Office of the State Appellate Defender, Springfield (Anne D. Samuels and Constantine L. Trela, Jr., of Sidley & Austin, Susan Valentine and Fay Clayton, of Robinson, Curley & Clayton, Jeffrey H. Winick, of Stein, Ray & Conway, and Carol C. Dillard, of Peterson & Ross, all of Chicago, of counsel), for appellant.

Roland W. Burris, Atty. Gen., Springfield, and James E. Ryan, State's Atty., Wheaton (Rosalyn B. Kaplan, Solicitor Gen., and Terence M. Madsen, Steven J. Zick, Bradley P. Halloran and Michael M. Glick, Asst. Attys. Gen., Chicago, Barbara A. Preiner and Margaret M. O'Connell, Asst. State's Attys., of counsel, and Joan M. Dillon, law student), for the People.

Michael B. Metnick, Metnick, Barewin & Wise, Springfield, Jeffrey Urdangen, Chicago, and Jane Raley, Evanston, for amicus curiae Alejandro Hernandez.

Michael A. Mello, South Royalton, Vermont, for amici curiae Hugo Adam Bedau and Michael L. Radelet.

Roger Pascal and Paul E. Dengel, Schiff, Hardin & Waite, Chicago, for amici curiae Peter Beckwith, et al.

Lowell E. Sachnoff, Sachnoff & Weaver, Ltd., [162 Ill.2d 318] Chicago (Stuart J. Chanen and Mary N. Cameli, of counsel), for amici curiae The Chicago Conference of Black Lawyers, et al.

Edward M. Genson, Genson, Steinback & Gillespie, and Michael D. Monico, Monico, Pavich & Spevack, Chicago, for amici curiae The National Association of Criminal Defense Lawyers and Illinois Attorneys for Criminal Justice.

Ruben Castillo, Kirkland & Ellis, Chicago, for amici curiae Six Deans of Illinois Law Schools.

Sheldon T. Zenner, Katten, Muchin & Zavis, Chicago, for amici curiae James B. Burns, et al.

Justice FREEMAN delivered the judgment of the court:

In 1985, defendant, Rolando Cruz, and codefendant Alejandro Hernandez were tried together, convicted of the kidnapping, rape and murder of Jeanine Nicarico and sentenced to death. The jury was unable to reach a verdict on identical charges against another codefendant, Steven Buckley. Defendant Cruz's convictions were reversed, and his case was remanded for a new trial (People v. Cruz (1988), 121 Ill.2d 321, 117 Ill.Dec. 907, 521 N.E.2d 18). Hernandez's convictions were also reversed, and his case was remanded for a new trial (People v. Hernandez (1988), 121 Ill.2d 293, 117 Ill.Dec. 914, 521 N.E.2d 25). The jury was unable to reach a verdict on identical charges against Buckley.

Following a second jury trial in the circuit court of Du Page County, defendant was again convicted of murder, aggravated kidnapping, deviate sexual assault, aggravated indecent liberties, and residential burglary (Ill.Rev.Stat.1981, ch. 38, pars. 9-1(a)(1), (a)(2), 10-2(a)(2), (a)(3), 11-3(a), 11-4(a), 19-3(a)), and again sentenced to death (Ill.Rev.Stat.1981, ch. 38, par. 9-1). [162 Ill.2d 319] Defendant's death sentence was stayed (134 Ill.2d R. 609(a)), pending direct review by this court (Ill. Const.1970, art. VI, § 4(b); 134 Ill.2d R. 603). On initial review, a majority of this court affirmed defendant's convictions and death sentence; three members dissented. Defendant petitioned for rehearing, and we allowed the filing of supporting amicus curiae briefs submitted by religious leaders, various local and national bar associations, deans from Illinois law schools, several individual legal scholars, and a grouping of former State and Federal prosecutors. We subsequently granted defendant's petition for rehearing (134 Ill.2d R. 367) and reconsidered the case. Preliminarily, we grant the State's motion to supplement the record on appeal with the testimony of George Mueller, Brian Dugan's former counsel, given at the trial of codefendant Alejandro Hernandez. We also grant the defendant's motion to file instanter his response to the State's motion to supplement the record. Based on findings of significant trial error, we now reverse and remand for retrial.

The sad facts of this case are well known and adequately recounted in Cruz, 121 Ill.2d

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[205 Ill.Dec. 349] 321, 117 Ill.Dec. 907, 521 N.E.2d 18, and Hernandez, 121 Ill.2d 293, 117 Ill.Dec. 914, 521 N.E.2d 25. In sum, on the afternoon of February 25, 1983, 10-year-old Jeanine Nicarico was kidnaped from her family's Naperville home, raped and bludgeoned to death. Her body was found several days later in underbrush on the Illinois Prairie Path, near Eola Road, south of Illinois Route 5 in Naperville. The coroner determined that Jeanine had died within several hours after her abduction as the result of several severe blows to the head. She was also blindfolded with a towel which was secured by adhesive cloth tape wound several times around her head. Her body additionally evidenced a broken nose, minor post-mortem scratch marks on the legs, and vaginal and anal sexual assault.

[162 Ill.2d 320] On March 14, 1983, Du Page County sheriff's police questioned Alejandro Hernandez based on an anonymous tip that he might have information about Jeanine's murder. Near the end of April 1983, after speaking with other acquaintances of Hernandez and defendant, police began a series of discussions with defendant about the murder. Defendant was among several persons who were then attempting to provide police with information about the murder following the public offering of a $10,000 reward. During this time, defendant was in periodic contact with authorities investigating the murder. On March 9, 1984, on the basis of several statements made to police and various witnesses, defendant was arrested and charged with Jeanine Nicarico's murder.

The State's evidence was largely testimonial, consisting of statements made by defendant to law enforcement officials, friends, or fellow inmates. Dan Fowler, a convicted felon, testified that, in the spring of 1983, he and defendant were drinking beer one evening, celebrating defendant's birthday, when defendant related that he knew the four or five persons who were involved in the Nicarico murder. Defendant said that he had been "involved with it, * * * but didn't kill the girl." Defendant told Fowler that he knew where the bat, the murder weapon, was, and then he began crying. Fowler reportedly wanted to go retrieve the weapon and turn it in, but defendant said "no." Following the conversation, defendant and Fowler drove to the home of someone defendant wished to see. Fowler identified the son of the Nicaricos' former housekeeper from a photo as the person they had visited.

The defense impeached Fowler with evidence showing that he had testified inconsistently before the grand jury. This evidence revealed that, before the grand jury, Fowler initially testified that defendant told him defendant knew who was involved in the case, and that defendant[162 Ill.2d 321] planned to testify against them. Following a noon recess, Fowler testified that defendant told him that defendant, himself, had been at the murder scene. Fowler was further impeached by Thomas Laz, defendant's former counsel, who testified that Fowler had once explained to him that, during the noon recess, a prosecutor threatened to charge Fowler with perjury. Fowler then told the grand jury, after the recess, what he believed the prosecutor wanted him to say. According to Laz, Fowler related that he gave the truthful testimony before the noon recess.

Stephen Ford, a fellow inmate with defendant in the Du Page County jail, testified that defendant told him that he had "kind of killed" a girl in Aurora. According to Ford, defendant related that he had been living in the woods in Aurora, but "something" had happened and he had to get out of the area. Defendant also reportedly said that he had left something "stashed" there. Ford was impeached, however, with his testimony from defendant's first trial, which was that he was unsure about defendant's statement to him. According to Ford, he gave this earlier testimony because defendant had threatened to kill him. Ford denied receiving any preferential sentencing in return for his testimony, yet he conceded that he had received two five-year concurrent sentences for two burglary charges and numerous other burglary charges were "possibly" dropped less than two weeks after he reported his conversation with defendant to authorities.

Du Page County Sheriff's Detectives Vosburgh and Kurzawa testified that on May 2, 1983, they took a tape-recorded statement from defendant. Defendant told them that

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[205 Ill.Dec. 350] Ray Ortega, a friend, had told him that Alex Hernandez had taken a little girl from a house in Naperville during a home invasion and that the girl had been hurt, so Hernandez had decided to "finish it." [162 Ill.2d 322] According to defendant, someone named "White Boy" had arranged the home invasion. Vosburgh and Kurzawa testified that they spoke with Ortega the next day. Their testimonies reveal that no substantial evidence was gained.

Vosburgh testified that on May 9, 1983, he picked up defendant at his home and drove him to the sheriff's office. Defendant related that he "knew too much" and was being "shot at" by Hernandez and his friends. Defendant told the detectives that he had had a dream that a young girl had been dragged from the house in a blanket, anally raped, and either struck over the head or on the back of the head with sufficient force to leave an impression in the ground, and dumped near a field. According to the detectives, defendant appeared upset and distraught during this conversation, repeatedly saying, "Tell me it isn't so." At the time, photos of the victim and the crime scene were visible on a nearby table. Defendant could not look at the crime scene photo. The two officers did not tape-record defendant's "dream"...