People v. Dominguez

• Decision Date: 28 June 2002
• Docket Number: No. 2-01-0366.,2-01-0366.
• Citation: 331 Ill. App.3d 1006,773 N.E.2d 1167,266 Ill.Dec. 97
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ramon DOMINGUEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

773 N.E.2d 1167

331 Ill. App.3d 1006

266 Ill.Dec. 97

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ramon DOMINGUEZ, Defendant-Appellant.

No. 2-01-0366.

Appellate Court of Illinois, Second District.

June 28, 2002.

Rehearing Denied July 30, 2002.

Jed H. Stone, John Curnyn, Stone & Associates, Waukegan, for Ramon Dominguez.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Kristine A. Karlin, Mt. Prospect, for the People.

Justice CALLUM delivered the opinion of the court:

Following a jury trial, defendant, Ramon Dominguez, was convicted of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1998)). He was sentenced to 28 years' imprisonment. He appeals, arguing that (1) his counsel and the trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter (720 ILCS 5/9-3(a) (West 1998)); and (2) he was entitled to a hearing on his fitness to be tried and sentenced. We affirm.

I. FACTS

At trial, the State produced the following evidence. Dawn Ramirez testified that she was a 911 operator for the North Chicago police department. On May 28, 1999, about 10:30 p.m., a male called 911 and reported that his wife had been shot at his house. He stated that the shooter had run away. The caller lived at 1224 Park. According to Ramirez, the caller was "hysterical."

Gerardo Reyes testified that defendant lived at 1224 Park with defendant's wife Martha Reyes and their children, G.D. and S.D.

S.D., defendant's six-year-old daughter, testified that she and her mother were in a bedroom when defendant walked in. S.D. saw defendant talk loudly to her mother, retrieve a gun from a closet, put it back, retrieve it again, and use it to kill her mother. Defendant then called the police.

Richard Wilson, a North Chicago police officer, testified that he was dispatched to 1224 Park. Defendant was standing on the porch. He was hysterical, and he said that his wife had been shot. He spoke English but with a Spanish accent. He led Wilson into the house, and Wilson saw a woman lying on the floor in a bedroom. In the same room, Wilson found a semiautomatic handgun under a bed.

Christopher Berg, another North Chicago police officer, was at the scene with Wilson. Berg testified that he and defendant spoke to each other in English and had no difficulty understanding each other. Defendant said that he and his children had been in the house and that his wife had been on the porch. Defendant stated that he heard a gunshot, ran outside, and saw someone running away. Defendant said that he dragged his wife into the house and went to retrieve his gun. Outside the house, Berg found no evidence of any kind. Inside the house, Berg saw no indication that anyone or anything had been dragged.

Robert D. Peters, a North Chicago firefighter/paramedic, was also dispatched to 1224 Park. He testified that he had smelled gunpowder in the bedroom.

William Jones, another North Chicago police officer at the scene, testified that the gun under the bed was lacking a magazine and thus appeared to be empty. There were no signs of a struggle inside the house.

Dean Kharasch, a North Chicago police officer, was at the scene as well. He testified that he asked defendant about the gun. Defendant said that the shooter had used the gun to shoot his wife in the living room. Defendant added that he fought with the shooter, who then threw the gun under the bed. Kharasch had no trouble understanding defendant's English. Kharasch's investigation confirmed that the shooting had occurred inside the house. In the bedroom closet, Kharasch found the magazine to the gun and a box of ammunition.

Brian Carder, a North Chicago police detective, testified that he found a shell casing on a dresser in the bedroom. No other casings were found in the house. No fingerprints were found on the gun. The gun could have been fired without a magazine if a bullet had been in the chamber.

The parties stipulated that Elizabeth Horvath, a physician, would testify that Martha Reyes died from a gunshot wound to the chest. Nancy Jones, a forensic pathologist, testified that Reyes was shot from no more than 18 inches away.

Robert Wilson, a firearms examiner for the Northern Illinois Police Crime Laboratory, testified that the shell casing on the dresser had been ejected from the gun found under the bed. He further stated that the same gun had fired the bullet recovered from Martha Reyes's body. That bullet matched the bullets found in the closet.

The State rested, and defendant presented no evidence. In response to the court's inquiry, defendant stated that he did not wish to testify. During the conference on jury instructions, neither the parties nor the court addressed the propriety of an instruction on involuntary manslaughter. No such instruction was tendered to the court or given to the jury.

In his closing argument, defense attorney Michael Melius acknowledged that defendant had shot his wife. Melius stated, however, that defendant's act did not evince an intent to kill or do great bodily harm. Melius argued:

"We read about it all the time. It happens in accidents. It happens when people are negligent. It happens when people are reckless. It happens when people are stupid. It happens when people pick up weapons without determining whether or not the gun is loaded.

Is that intent to kill somebody then if you pick up that gun, and * * * you believe that it's not loaded and then you pull the trigger and the gun goes off? * * *

* * * That could very well be an accident, recklessness, negligence, stupidity, any number of different things[.] * * * But it doesn't make it murder."

The jury found defendant guilty of first-degree murder. Represented by new counsel, defendant filed a posttrial motion, arguing that his trial counsel did not allow him to decide whether to submit an instruction on involuntary manslaughter. Defendant further argued that counsel was ineffective for failing to submit the instruction.

In support, defendant filed various affidavits. In his own affidavit, defendant averred that he was not fluent in English and did not understand his option to instruct the jury on involuntary manslaughter. His trial counsel presented the issue in a "really fast" discussion in the courtroom and did not use an interpreter. In a separate affidavit, Melius confirmed that he and his trial partner, Martin Shaffer, explained the issue to defendant in the courtroom and did not use an interpreter.

In a third affidavit, Michael J. Boehm, a priest, averred that he was fluent in Spanish and met weekly with defendant. Defendant's English skills were "extremely limited to the point of being non-existent," and he did not understand what his lawyers told him. Melius did not respond to Boehm's repeated attempts to contact him.

At a hearing on the motion, Shaffer testified that he and defendant spoke to each other in English. Defendant did not speak English as well as a native speaker and usually spoke in single syllables. Nevertheless, Shaffer always believed that defendant could understand him. Shaffer never asked defendant to explain a legal concept in his own words.

Melius testified that he brought an interpreter to his initial meetings with defendant but not to later meetings. At the later meetings, Melius and defendant spoke English and "had no problem" communicating. Defendant occasionally "threw in some Spanish," but Melius then asked him to speak English, and defendant complied. They discussed all legal concepts in English and without an interpreter. Defendant was not fluent in English and spoke mostly in "yeses and nos."

Melius further testified that he and defendant had three brief discussions about a lesser-included-offense instruction. Each discussion was in English and without an interpreter. Melius explained how the instruction could affect the case, how it could present a "compromise." Melius used plain English, and defendant understood his words, though not necessarily the legal technicalities. Melius made no recommendation, and defendant did not request an instruction. There was "kind of a consensus * * * to go for all or nothing." The decision was made "with the defendant." Melius believed that the strategy was sound, but he would not have pursued it had defendant objected. Melius concluded:

"There was a discussion between myself, Mr. Shaffer and Mr. Dominguez about a lesser included offense. In our discussions, it was determined that we would not submit a lesser included offense [instruction]. Ultimately, if Mr. Dominguez would have said I want [an instruction], I would have submitted it. He did not say that. * * * Thus it would have been my ultimate decision, I guess, not to do that because I didn't recommend it and he didn't say that he wanted it."

Boehm testified that defendant once asked him what manslaughter was. Defendant was very confused, and he frequently reiterated that he did not understand the proceedings. Boehm never spoke to defendant in English, as defendant did not speak English fluently. Defendant could speak sufficient English to participate in a "normal" conversation, but not in one "that involved any type of detail." Defendant said that he was frustrated because his lawyers "didn't give him enough time," but he did not say that he could not understand them. Nevertheless, Boehm believed that defendant could not understand.

Joanne Arreguin, defendant's ex-wife, testified that by 1994 defendant could speak English sentences and string them together. He occasionally inserted some Spanish. He spoke English with his children but had more difficulty reading English. By May 1999, he mixed Spanish and English more frequently.

Before the court ruled on the posttrial motion, defendant moved for a fitness hearing. He argued that he was taking psychotropic medication before, during, and after his trial. The court...