People v. Hernandez

• Decision Date: 31 March 2017
• Docket Number: No. 1-15-0575,1-15-0575
• Citation: 80 N.E.3d 8,2017 IL App (1st) 150575
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sergio HERNANDEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 150575

80 N.E.3d 8

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

v.Sergio HERNANDEZ, Defendant-Appellant.

No. 1-15-0575

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed March 31, 2017

Modified upon denial of rehearing June 9, 2017.

Michael J. Pelletier, Patricia Mysza, and Bryon M. Reina, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Christine Cook, Assistant State's Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant Sergio Hernandez was found guilty of the first-degree murder of Rocio Munoz and of personally discharging the firearm that caused her death. 720 ILCS 5/9-1(a)(1) (West 2008) (first-degree murder with intent to kill); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006) (25-year sentencing enhancement for personally discharging a firearm causing death). Defendant was sentenced to 30 years for the murder and 25 years as a result of a firearm enhancement, for a total sentence of 55 years with the Illinois Department of Corrections (IDOC).

¶ 2 On a prior appeal, this court found that defendant's arrest was illegal, and we vacated defendant's conviction and remanded the case for an attenuation hearing. People v. Hernandez , 2013 IL App (1st) 103447-U, ¶¶ 42, 50, 2013 WL 3357824 (unpublished order pursuant to Supreme Court Rule 23 ). Specifically, we remanded the matter to the trial court "with directions to conduct a hearing to determine whether defendant's statements at the police station were sufficiently attenuated from his illegal arrest to render it admissible." Hernandez , 2013 IL App (1st) 103447-U, ¶ 50. We also permitted the parties the opportunity on remand to develop a factual record bearing on defendant's claims of ineffective assistance of trial counsel. Hernandez , 2013 IL App (1st) 103447-U, ¶ 56.

¶ 3 After the trial court held the attenuation hearing, we instructed the trial court as follows: "Should the trial court find defendant's confession was sufficiently attenuated from his illegal arrest, we direct the court to reinstate defendant's conviction. In the alternative, if the trial court determines that no such attenuation exists to purge the confession from the taint of defendant's illegal arrest, we direct the trial court to suppress the confession and conduct further proceedings consistent with this opinion." Hernandez , 2013 IL App (1st) 103447-U, ¶ 50.

¶ 4 On remand, the trial court held an attenuation hearing and found that defendant's statement to the police at the police station was sufficiently attenuated from his earlier arrest to be admissible at trial; and, following our directions, the trial court reinstated defendant's conviction.

¶ 5 Defendant now appeals the trial court's decision, arguing: (1) that the trial court erred in finding attenuation; (2) that his counsel at the attenuation hearing had a conflict of interest, since the appellate court permitted defendant on remand to address his claim that his trial counsel was ineffective for failing to move to suppress his statement as involuntary, and the same trial counsel continued to represent defendant on remand ( Hernandez , 2013 IL App (1st) 103447-U, ¶ 56 (permitting the parties " ‘an opportunity to develop a factual record’ ") (quoting People v. Bew , 228 Ill. 2d 122, 135, 319 Ill.Dec. 878, 886 N.E.2d 1002 (2008) ); and (3) that this counsel was ineffective for failing to move to suppress defendant's statement as involuntary ( Hernandez , 2013 IL App (1st) 103447-U, ¶ 56 ("depending on what is entered into the record on remand, ineffectiveness * * * could be addressed on direct appeal").

¶ 6 For the following reasons, we reverse defendant's conviction, suppress the statement he made at the police station and remand for further proceedings consistent with this opinion.

¶ 7 BACKGROUND

¶ 8 In the evening of November 25, 2008, the victim, Rocio Munoz, was found shot in the head while in her vehicle, which was parked on West Irving Park Road in Hanover Park, Illinois. On December 22, 2008, defendant, her former boyfriend, was indicted for her murder.

¶ 9 I. Pretrial Motion to Quash Arrest

¶ 10 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence on the ground that he was illegally arrested at his home without probable cause or a warrant. After holding a suppression hearing, the trial court concluded that defendant was not arrested at his home. On appeal, this court reversed the decision of the trial court and found that an arrest had occurred. Hernandez , 2013 IL App (1st) 103447-U, ¶ 2. We described the testimony at the suppression hearing in detail in our prior decision, and we will not repeat it here. Hernandez , 2013 IL App (1st) 103447-U, ¶¶ 4-9. In sum, more than 20 police officers, some armed, arrived at defendant's home, handcuffed him and patted him down, and then removed his handcuffs and seated him next to an armed officer in the back of a police vehicle and transported him to another police vehicle, which then transported him to an interrogation room in a police station, where he was questioned from nine at night until almost three in the morning. This court concluded that no reasonable person in defendant's shoes would have thought that he or she was free to leave. Hernandez , 2013 IL App (1st) 103447-U, ¶¶ 42, 46.

¶ 11 II. Evidence at Trial

¶ 12 Except for a few statements, the testimony at trial was not described in our prior opinion, so we provide a description here.¹

¶ 13 At trial, Jose Munoz² testified that his sister Rocio, the victim, had dated defendant for three or four years, until 6 months before she died. Rocio, who had immigrated to the United States in 2005 from Mexico, had known defendant in Mexico. At the time of her death, Rocio was living with her brother Jose and their two brothers, and they had all lived together for three years. For four years, Rocio had worked cutting hair, and during the last six or eight months before her death, she had worked at a salon on Irving Park Road, in Hanover Park.

¶ 14 Rafael Delatore Guzman testified that, in November 2008, he was dating Rocio. On November 25, 2008, he met her at 8 p.m. as she was leaving the hair salon where she worked. The salon was in a shopping center on Irving Park Road. The two of them walked to her vehicle, which was parked in the parking lot in front of the salon. While Rocio was removing some bags from the front passenger seat to the back of the vehicle so that Guzman could sit down, Guzman observed a man walking in front of the vehicle. The man was 6 feet tall, 184 pounds,³ and dressed in a black hooded sweatshirt, with the hood over his head, such that Guzman could not observe his face. After Rocio told Guzman that he could enter the vehicle, Guzman was entering when he heard a shot. After the shot, Guzman testified: "I just saw Rocio move." Guzman then entered a nearby supermarket.

However, as Guzman reached the store, he turned around and observed the same man walking on the sidewalk. After entering the store, Guzman asked one of the workers to call the police and an ambulance. When Guzman observed the first police vehicle arrive, he went outside and walked to Rocio's vehicle with a police officer. When Guzman reached her vehicle, he opened the passenger door and observed Rocio lying on the passenger seat, and he grabbed her and lifted her up, and he observed that her face was full of blood. Blood was on her face and the vehicle seat, and on all of her clothes.

¶ 15 Detective Hugo Villa, of the Hanover Park Police Department, testified that, on November 25, 2008, he was a police officer and he responded to a call at 8:11 p.m. directing him to a shopping center on Irving Park Road. After arriving there, Villa observed a woman slumped forward in the driver's seat of a silver Ford parked in the parking lot, and she was covered in blood. The driver's side door was closed, and the window was shattered, with a partial hole in the window. After Villa opened the door, he grabbed the woman by her left shoulder and pulled her back, so that she sat up in her seat.⁴ Villa observed a gunshot wound behind the woman's left ear and did not observe any signs of life. As Villa called the dispatch officer, he noticed a spent shell casing outside the vehicle, within a foot or two of the driver's side door. However, Villa was not able to determine the caliber of the shell casing. While at the scene, he spoke with Rocio's then current boyfriend, whose name Villa could not recall.

¶ 16 Nicholas Rossberg, a paramedic with the Hanover Park Fire Department, testified that, on November 25, 2008, he received a dispatch at 8:12 p.m. and that, when he arrived on the scene, Rocio was not responsive and not breathing, and had no pulse. She was transported to St. Alexius Medical Center.

¶ 17 The parties then entered a stipulation that if Dr. Karla Dunston was called to testify, she would testify that on November 25, 2008, she was an emergency room physician at St. Alexius Medical Center in Hoffman Estates, that Rocio arrived at 8:36 p.m. with a gunshot wound to the back of her head behind her left ear and was pronounced dead at 8:44 p.m. The parties also stipulated that, if Dr. Kendall Crowns was called to testify, he would testify that he was a deputy medical examiner for Cook County and that the cause of Rocio's death was a gunshot wound to the head.

¶ 18 Edgardo Lopez, a Hanover Park police officer, testified that, on November 25, 2008, he was a member of the Major Case Assistance Team (MCAT), and they went to Aurora to locate defendant who was a suspect. After police had "put out word that [defendant] was being looked for," defendant called the police. While in Aurora, Lopez, who was fluent in Spanish, spoke on the phone with defendant who provided directions; and the officers then went to an apartment...