People v. Klimawicze
| Decision Date | 17 August 2004 |
| Docket Number | No. 1-00-3531.,1-00-3531. |
| Citation | 815 N.E.2d 760,352 Ill. App.3d 13,278 Ill.Dec. 116 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Audrey A. KLIMAWICZE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Edwin A. Burnette, Public Defender of Cook County, Chicago (Emily Eisner, Assistant Public Defender, of counsel), for Appellant.
Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, John E. Nowak and Janet Powers Doyle, of counsel), for Appellee.
Following a jury trial, defendant Audrey Klimawicze was convicted of first degree murder, armed robbery, and home invasion. The trial court sentenced her to an extended term of 92 years' imprisonment for murder and two concurrent 30-year sentences for the remaining counts of armed robbery and home invasion. On appeal, defendant challenged the legality of her arrest and the admission of her subsequent hand-written statement at trial. This court found the police lacked probable cause to justify defendant's arrest and remanded the matter to the trial court for an attenuation hearing. People v. Klimawicze, No. 1-00-3531 (2003) (). Following our instructions, the trial court made several factual findings and concluded defendant's statement was sufficiently attenuated from her illegal arrest.
In addition to appealing the trial court's finding regarding attenuation, defendant contends: (1) the trial court violated defendant's right to confront witnesses by allowing hearsay statements into evidence; (2) jury selection was fundamentally unfair because the State falsely educated the jury on the law of accountability during voir dire; (3) the prosecution improperly questioned defense witnesses about defendant's prior bad acts; (4) the prosecution improperly used prior consistent statements to bolster its witness's credibility; (5) the prosecution improperly asked defendant to comment on other witnesses' truthfulness; (6) the trial court erred when it refused to instruct the jury on second degree murder; and (7) defendant's 92-year sentence was unfairly disproportionate. We affirm defendant's conviction and sentences.
We rely on the trial court's factual findings at the attenuation hearing. They are supported by the record.
The Chicago police found the partially burned body of Audrey V. Klimawicze on August 2, 1997, in a garbage container located in the alley of the 3300 block of South Emerald Avenue. The victim had been stabbed and strangled. At 7:05 that evening, the police arrested defendant, who was the victim's daughter, and codefendant Hector Mercado.1
Police questioned both defendant and codefendant Mercado at 9:30 p.m. on August 2, 1997, and they denied any knowledge of the crime. At 10 p.m., an eyewitness identified Mercado in a lineup as the man she saw pushing the garbage cart down the alley the previous evening. At 12:30 a.m. on August 3, 1997, police told Mercado he had been identified in the lineup. Mercado told police that defendant told him she had a fight with her mother and that she had stabbed her. Defendant and a man named Mario placed the victim in a garbage can behind her apartment building. Mercado admitted he later moved the can further down the alley.
At 4 a.m. on August 3, 1997, taxi driver Joe Martinez told police he drove defendant and Mercado on August 2, 1997. Defendant told Martinez she had an argument with her mother and had stabbed her. According to Martinez, defendant said, "The bitch deserved it," and Mercado replied,
At 4:30 a.m., police advised defendant of her Miranda rights and confronted her with Mercado's and Martinez's statements. She told police she had an argument with her mother and that her mother pulled a knife on her. Defendant was able to take the knife away. When she told Mercado what happened, he took the knife, went to the victim's apartment, and stabbed her. According to defendant, Mercado placed her mother's body in the garbage container. Defendant gave the same version of the story when interviewed by police three hours later.
At 8:30 a.m., Mercado repeated his 12:30 a.m. statement. The police again confronted defendant with Mercado's and Martinez's statements. She gave the same statement as earlier and agreed to repeat her statement to Mercado.
After listening to defendant, Mercado told police defendant had talked about killing her mother for three weeks. At 10:30 p.m. on July 31, 1997, defendant asked Mercado to accompany her to her mother's apartment so they could kill her. Mercado told police he refused but went down to the second floor apartment when he heard a loud noise. He saw defendant stab her mother with a large knife several times. Over the next 20 hours, he used money defendant found in the victim's apartment to buy heroin. On August 1, 1997, he placed the victim in the garbage container and later pushed it down the alley.
Police then confronted defendant with Mercado's latest statement. Defendant repeated her earlier statements. At 4 p.m. defendant initiated a conversation with police. She reiterated her earlier statement but added Mercado did not return to their apartment on the night of August 1, 1997. On the morning of August 2, 1997, Mercado told defendant he had burned the garbage cart and police were investigating.
At 7:30 p.m. on August 3, 1997, defendant, after being informed of her rights, gave the same statement to assistant State's Attorney Thomas Bilyk.
An hour later, Mercado gave Bilyk a different story. He said defendant told him she was going "to do" her mother. Defendant returned because her mother would not let her enter the apartment. Defendant then took a long black cord and Mercado took a hunting knife to the victim's apartment. Defendant kicked her mother and forced her way into the apartment. Mercado followed. Defendant then strangled the victim with the cord and instructed Mercado to stab her. He stabbed the victim three times while defendant continued to choke her. After taking money from the victim's apartment, they went to the projects to buy heroin and dispose of their weapons. The next day, Mercado placed the victim and a carpet into a garbage container from the alley. Later, they moved the container to the alley and set it on fire. He also said defendant told the cabdriver named Joe that she killed her mother.
At 9:15 p.m., defendant was confronted with Mercado's 8:30 p.m. statement. She expressed disbelief that Mercado made the statement; the police brought him into defendant's interview room. He told defendant, "I told them the truth." Police escorted him from the room, and Bilyk informed defendant of her rights. She agreed to give a handwritten statement, which was later admitted at trial.
The testimony at trial, including the contents of defendant's handwritten statement, was summarized in our previous order. See Klimawicze, No. 1-00-3531 (2003). The jury found defendant guilty of first degree murder, armed robbery, and home invasion.
Defendant waived her right to a jury trial to determine her eligibility for the death penalty. At sentencing, the court heard evidence in mitigation and aggravation and determined defendant and Mercado were eligible for the death penalty because the murder occurred during an armed robbery. Based on the mitigating evidence, the court declined to impose the death penalty. The court also considered imposing life sentences, saying a life sentence "seems to be awfully appropriate." Instead, the court sentenced both defendants to 92-years' imprisonment based on the brutal nature of the murder. The court also imposed two concurrent 30-year terms for the armed robbery and home invasion convictions.
Defendant contends the trial court erred when it found her statement was attenuated from her illegal arrest.
Evidence collected following an illegal arrest may be admissible if it is sufficiently attenuated from any illegality. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416, 427 (1975). Courts use four factors in attenuation analysis: (1) the existence of Miranda warnings; (2) the proximity in time between the arrest and the statement; (3) the presence of intervening circumstances; and (4) the flagrancy of police misconduct. Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427; People v. Wilberton, 348 Ill.App.3d 82, 85, 284 Ill.Dec. 179, 809 N.E.2d 745 (2004). Typically, intervening circumstances and flagrancy of police misconduct are the two key factors in determining whether police exploited the illegal arrest to obtain a confession. People v. Willis, 344 Ill.App.3d 868, 884-85, 279 Ill.Dec. 755, 801 N.E.2d 47 (2003), pet. for leave to appeal granted, 207 Ill.2d 627, 283 Ill.Dec. 140, 807 N.E.2d 981 (2004); People v. Ollie, 333 Ill.App.3d 971, 986, 267 Ill.Dec. 726, 777 N.E.2d 529 (2002). The prosecution bears the burden of showing the confession was not a product of the illegal arrest. People v. Foskey, 136 Ill.2d 66, 86, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990).
A trial court's decision regarding a motion to suppress evidence is reviewed de novo; however, great deference is given to the trial court's factual findings, which will not be reversed unless they are found to be against the manifest weight of the evidence. People v. Pitman, 211 Ill.2d 502, 286 Ill.Dec. 36, 813 N.E.2d 93 (2004).
Courts have held that the presence of Miranda warnings alone will not purge the taint of an illegal arrest. Wilberton, 348 Ill.App.3d at 85, 284 Ill.Dec. 179, 809 N.E.2d 745. "Although police cannot dissipate the taint of an illegal arrest simply by giving Miranda warnings, the presence of the warnings prior to interrogation carries some weight." Wilberton, 348...
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