People v. Nieves

• Decision Date: 06 July 2000
• Docket Number: No. 84564.,84564.
• Citation: 249 Ill.Dec. 760,192 Ill.2d 487,737 N.E.2d 150
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Hector NIEVES, Appellant.
• Court: Illinois Supreme Court

737 N.E.2d 150

192 Ill.2d 487

249 Ill.Dec. 760

The PEOPLE of the State of Illinois, Appellee, v. Hector NIEVES, Appellant.

No. 84564.

Supreme Court of Illinois.

July 6, 2000.

Rehearing Denied October 2, 2000.

Charles Schiedel, Deputy Defender, of Springfield, and Steven Clark, Assistant Defender, of Chicago, both of the Office of the State Appellate Defender, for appellant.

James E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State's Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee Goldfarb, Linda Woloshin, Michelle Katz, Sally Dilgart and Hareena Meghani-Wakely, Assistant State's Attorneys, of counsel), for the People.

Justice RATHJE delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Hector Nieves, was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 1992)). The same jury found that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude the death penalty. Accordingly, the trial court sentenced defendant to death. Defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill.2d Rs. 603, 609(a).

On appeal, defendant argues that (1) he received the ineffective assistance of counsel when his attorney presented an invalid "mercy killing" defense; (2) he was improperly found eligible for the death penalty; (3) the trial court erred in allowing the State to introduce hearsay evidence at defendant's sentencing hearing; (4) the trial court improperly denied defendant's request to make a statement in allocution; and (5) the Illinois death penalty statute is unconstitutional. We will address each of these arguments, and the facts relating to them, in turn.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that he received the ineffective assistance of counsel when his trial attorney presented an invalid "mercy killing" defense.

Background

Defendant was indicted for the murder of Rafael Cuevas, a/k/a Pookie-Pookie. On May 10, 1992, the Chicago police found Cuevas' body in an abandoned storefront building at 2452 West North Avenue. Officer Ronald Ferrari of the Chicago police department's mobile crime lab testified that he received an assignment to go to that location. Upon arriving, Ferrari observed Cuevas' body lying on a bloodstained mattress. Ferrari testified that Cuevas had suffered severe trauma to the top of his head, a gash on his forehead, and bruises on his head and face. On a table near the body, Ferrari found a bottle cap, two burnt matches, hand wipes, and alcohol swabs. According to Ferrari, these items are commonly found where people are using crack cocaine. Ferrari did not find any money on Cuevas' person.

Dr. Thamrong Chira performed the post-mortem examination. Chira found lacerations on the forehead, the right side of the head, and the face. Cuevas also had a large depressed skull fracture. Chira found that Cuevas' brain was bruised and had hemorrhaged. According to Chira, Cuevas died of craniocerebral injuries; Cuevas had received at least six blows to his head. Chira found alcohol in Cuevas' blood, but all tests for other drugs were negative. Cuevas tested positive for HIV.

John Muldoon, a former Cook County assistant State's Attorney, testified that, on May 20, 1994, he was working as a trial supervisor in the felony review unit. On that day, he received an assignment to go to New York to interview a suspect who had surrendered to the police. Muldoon flew to New York with a court reporter, Cordelia Bussie. When they arrived, they met with another Chicago detective, Louis Rabbit, and two detectives from Brooklyn. They went to a police precinct in Manhattan, and Muldoon learned that he would be speaking to defendant.

Muldoon read defendant his Miranda rights, and Muldoon and Rabbit then interviewed defendant for approximately 20 minutes. The detectives asked defendant if he would make a statement to the court reporter, and he agreed. The court reporter transcribed the statement, and defendant signed it.

In the statement, defendant confesses to killing Cuevas. Defendant states that, on May 9, 1992, he was in an abandoned building at 2452 West North Avenue with Pookie-Pookie. Defendant had known Pookie-Pookie for approximately three months; defendant knew him "from the street." At the time, defendant was living in the abandoned building.

On the date in question, at approximately 8 p.m., defendant was talking to Pookie-Pookie, and Pookie-Pookie said, "Man I tell you this shit you know. I want to die." Defendant inquired as to what manner of "shit" Pookie-Pookie referred, and Pookie-Pookie responded, "Drugs and alcohol and things like that." The conversation lasted about 10 minutes, after which Pookie-Pookie said he wanted to go to sleep. Defendant waited until Pookie-Pookie went to sleep, and then went outside for about 10 minutes.

Defendant returned with a 2 × 4 board so that he could kill Pookie-Pookie. When the detectives asked why defendant intended to kill Pookie-Pookie, defendant responded, "Because he said he wanted to die." Defendant struck Pookie-Pookie several times in the head with the 2 × 4. He did not remember exactly how many times he hit him, but he believed it was more than 5 and fewer than 10. Defendant said that he threw the board away about 10 feet from Pookie-Pookie, inside the abandoned building. Referring to the board, defendant said, "The police never find it." Defendant surrendered to the New York police two years later.

The State also presented the testimony of Cuevas' sister, Blanca Nater. Nater testified that Cuevas lived in a house with three friends at North Avenue and Fairfield. Cuevas' share of the rent was $55. Cuevas supported himself through public assistance and food stamps. Nater saw Cuevas on May 7, 1992, when she took him to pick up his public assistance check. The check was for $155, of which defendant used $55 to pay his rent. Nater spoke to Cuevas briefly on May 8. He did not seem depressed on either occasion, and Nater testified that he was always happy.

Nater testified that Cuevas was HIV positive and had a drinking problem. He was receiving treatment for HIV at St. Mary Hospital and St. Elizabeth Hospital. Nater said that Cuevas' attitude was that he would have to deal with the HIV, and she never heard him say that he wanted to die because of it. Cuevas and Nater had made plans to go to their mother's house on May 10 to celebrate Mother's Day. On cross-examination, Nater indicated that she was aware that Cuevas had been treated for depression, but she still insisted that he was happy all the time.

At the close of the prosecution's case, the defense attorney stated that he planned to call two witnesses: Chicago Police Detective Louis Rabbit and the keeper of records from St. Elizabeth Hospital. As to the keeper of records, the defense attorney stated that the person would testify about Cuevas' suicidal ideations, which the defense attorney stated were relevant to his defense that Cuevas wanted to die. The attorney further explained that he would be seeking a second degree murder instruction. The trial court informed the defense that the keeper of records would not be allowed to testify because that testimony was irrelevant. The court further explained that it would not be giving a second degree murder instruction.

The defense called Rabbit as its only witness. Rabbit testified about defendant's statements immediately preceding his statement to the court reporter. Defendant said that he wanted to tell what had happened. He said that Pookie-Pookie was one of his "street friends" and that he killed Pookie-Pookie because Pookie-Pookie wanted to die. According to defendant, Pookie-Pookie frequently complained that he wanted to die.

At the instruction conference, the court denied the defense request that the jury be instructed on second degree murder. In his closing argument, the defense attorney argued that the jury should find defendant not guilty because the killing was a mercy killing and that defendant was merely helping his friend who wanted to die.

Analysis

On appeal, defendant contends that he received the ineffective assistance of counsel when his attorney presented an invalid "mercy killing" defense. Defendant argues that "mercy killing" is not a defense to first degree murder and that his attorney improperly conceded his guilt to the jury. Although pursuing an invalid defense may be proper strategy when the defendant consents to the strategy, defendant argues that the record here does not show his consent.

A defendant raising an ineffective assistance of counsel claim must meet the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance so prejudiced the defendant as to deny him a fair trial. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To meet the second prong of the test, a defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In certain situations when a defendant argues that he received the ineffective assistance of counsel because his attorney conceded guilt, prejudice will be presumed. See, e.g., People v. Hattery, 109 Ill.2d 449, 464-65, 94 Ill.Dec. 514, 488 N.E.2d 513 (1985). That standard, however, applies only when defense counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. United States v. Cronic, 466 U.S. 648, 104 S.Ct....