People v. Popoca

• Court: Appellate Court of Illinois
• Writing for the Court: COLWELL
• Citation: People v. Popoca, 615 N.E.2d 778, 245 Ill.App.3d 948, 185 Ill.Dec. 908 (Ill. App. 1993)
• Decision Date: 09 June 1993
• Docket Number: No. 2-91-1050,2-91-1050
• Parties: , 185 Ill.Dec. 908 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roberto POPOCA, Defendant-Appellant.

Page 778

615 N.E.2d 778

245 Ill.App.3d 948, 185 Ill.Dec. 908

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roberto POPOCA, Defendant-Appellant.

No. 2-91-1050.

Appellate Court of Illinois Second District.

June 9, 1993.

Rehearing Denied July 23, 1993.

Patrick M. Carmody, Office of the State Appellate Defender, Elgin, Theodore A. Gottfried, Appellate Defender, Charles M. Schiedel, Deputy Defender, Office of State Appellate Defender, Springfield, John J. Hanlon, Office of State Appellate Defender, 4th District, for Roberto Popoca.

Michael J. Waller, Lake County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, State's Attys. Appellate Service Com'n, 4th District, Springfield, Elliott Turpin, State's Attorney Appellate Prosecutor, for the People.

Justice COLWELL delivered the opinion of the court:

Defendant, Roberto Popoca, appeals the order of the circuit court denying his petition for post-conviction relief (Ill.Rev.Stat.1991, ch. 38, par. 122-1 et seq.). Defendant argues that the circuit court erred in finding he was not denied the effective assistance of trial counsel who failed to interview occurrence witnesses and failed to present an expert to support defendant's defense of intoxication. We reverse.

A jury found defendant guilty of the attempted murder (Ill.Rev.Stat.1985, ch. 38, pars. 8-4(a), 9-1(a)(1)) of his wife Leslie and daughter Alicia, armed violence (Ill.Rev.Stat.1985, ch. 38 par. 33A-2), and the aggravated battery of a police officer (Ill.Rev.Stat.1985, ch. 38, par. 12-4(b)(6)). He was sentenced to 20 years' imprisonment for the attempt on his daughter, 10 years' imprisonment for the attempt on his wife, and 2 years' imprisonment for the battery of the officer. The trial court vacated the conviction of armed violence. The only defense presented at trial was voluntary intoxication (Ill.Rev.Stat.1985, ch. 38, par. 6-3).

The record shows that on June 11, 1985, defendant and his wife borrowed a car and ran errands. They did not eat all day, and they returned to their apartment at 3:30 p.m. While his wife prepared a meal, defendant went to another apartment to return the car keys. There, Fernando Hernandez asked if he wanted a drink. Defendant stayed until about 5 p.m. and drank three or four glasses of vodka and orange juice, although defendant usually drank only beer. Each glass was about six inches tall. However, Hernandez, who provided the drinks, did not think defendant was drunk when he left the apartment. Hernandez testified that defendant did not have difficulty walking or talking, although Hernandez had not seen defendant drink before that occasion.

Defendant walked up several flights of stairs to his own apartment, arriving at 5:10 or 5:15 p.m., and began to argue with his wife. She testified that he was more intoxicated than she had ever seen him and that they argued because he wanted their child baptized. She started to leave for Hernandez's apartment, but he followed her. He fell down one flight of stairs, got up, and fell down another flight. He caught her and threatened to beat her. She calmed him, and they returned to their apartment. They argued some more, and he punched a screen. He said he would kill her. While she was holding their two-year-old daughter, he pulled his wife's head back and thrust a knife at her head. She grabbed the knife in her hand, which was lacerated and later required stitches to mend.

Defendant's wife pleaded to go to the hospital, and defendant agreed to take her. She protested that he was too drunk to drive and knocked on a neighbor's apartment door. Defendant said he would kill their daughter and took her out of his wife's arms. Defendant took her into the garbage room, and his wife and the neighbor followed. They had to retrieve the baby from the chute. There was a compacter eight floors below the chute door.

Two police officers came and arrested defendant. They had to beat him with nightsticks to subdue him as he was swinging his fists at them. He struggled and thrashed about on the floor even after they handcuffed him. The officers testified that they did not consider his abilities to fight, talk, or walk were impaired by alcohol.

The next morning, defendant awoke in the police station. An officer testified that defendant said he did not remember anything past the time he started arguing with his wife. Defendant remembered the details of the events prior to the argument, namely, the errands, the visit to Hernandez, the drinking, and the beginning of the argument.

Defendant's wife testified that she knew defendant was drunk because his eyes were red and glassy, and his speech did not make sense. She had seen him drunk previously, but this was the worst she had seen. She had seen him get violent only once before when he was drunk. She did not notice the odor of alcohol, but she was not that close to him to smell it.

Defense counsel called the laboratory technician who prepared a blood-alcohol report the night defendant was taken to the hospital. He testified that defendant's blood sample showed a count of 201.8 milligrams of alcohol per deciliter of blood. He could not testify on the effects this level would have on a person as he was not a qualified doctor. However, from a pathological standard, a rate of 100 milligrams per deciliter indicated the patient was intoxicated, 350 to 450 milligrams indicated severe intoxication, and 550 milligrams indicated a potentially fatal level of alcohol. Doctors use this standard to base their treatment of the patient. The levels may be used to gauge the extent medications may interact with the presence of alcohol in the blood.

Defendant testified that he ran errands on June 11, 1985, and that he and his wife did not stop to eat. When he returned the car keys, he was offered a drink. He drank three or four vodka drinks although he usually drank beer. Defendant could remember nothing after the time he left that apartment. He remembered waking in the jail feeling the lump on his head and feeling that he had a hangover. He barely remembered talking to the officers that morning.

The prosecutor argued that defendant was not so drunk that he could not form the intent to kill. The prosecutor argued that defendant's claim that he could not remember the incident was not credible because he could remember the events leading up to the incident; and the prosecutor accused defendant of employing selective memory loss. The prosecutor argued that three or four drinks were not enough to render a man incapable of making decisions. He stated that the laboratory technician's testimony showed that defendant was not very intoxicated at all.

Defense counsel argued that while defendant's intoxication was not severe, it was in the range between intoxication and severe intoxication. Counsel asked the jury to consider that alcohol affects people differently and defendant had three or four eight-ounce glasses of a vodka drink. She argued that the evidence showed he was too drunk to have a specific intent to kill. She noted that while the officers would not say defendant was drunk, they did say he was on the floor screaming incoherently.

The jury was instructed, "An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly and voluntarily." (See Illinois Pattern Jury Instructions, Criminal, No. 24-25.02 (2d ed. 1981); People v. Baczkowski (1989), 180 Ill.App.3d 17, 20, 128 Ill.Dec. 973, 535 N.E.2d 484.) The jury found defendant guilty on all counts. The trial court sentenced defendant to 20 years' imprisonment for the attempted murder of his daughter.

Defendant appealed his conviction, arguing that the sentence was excessive because the court had not adequately considered the evidence of intoxication. This court affirmed. People v. Popoca (1986), 146 Ill.App.3d 1167, 110 Ill.Dec. 471, 511 N.E.2d 443 (unpublished order under Supreme Court Rule 23).

At the post-conviction proceeding, defendant presented the evidence which he claims his trial counsel should have introduced to support his defense of voluntary intoxication.

First, defendant presented Dr. Jerrod Giraukas, a licensed clinical psychologist. He conducted a psychological evaluation of defendant on April 16, 1991, to determine the general psychological functioning of defendant to ascertain his mental status at the time of the offense in 1985. Giraukas gave defendant a battery of tests and reviewed his family history, substance abuse evaluations, the original trial transcripts, medical reports and police reports. Defendant came from a family with a history of substance abuse. Defendant himself was classified as a severe alcohol dependent because he suffered from blackouts, used alcohol extensively, lost control, had polysubstance abuse, and drank in the morning, which was a primary symptom of alcoholism. Giraukas determined that defendant was alcohol dependent in 1985. While defendant had been incarcerated since then, that fact had no impact on the diagnosis that defendant was alcohol dependent in 1985. Moreover, his mental intelligence level had not changed. Giraukas also testified that defendant was suffering from and continued to suffer from a neurophysical depressive disorder. The combination of low intelligence and alcohol had a devastating effect on defendant's ability to make appropriate judgments.

Giraukas translated the hospital report to state that defendant's blood-alcohol count (BAC) was 0.20 the day of the offense. Giraukas testified that this percentage is twice the legal definition of intoxication but four times the level of clinical intoxication. Giraukas opined that given that level of blood alcohol defendant was not able to form the intent necessary to commit the offense of murder.

Giraukas also testified that a blackout is a primary symptom of alcohol dependence. A layman who saw a subject suffering...