People v. Ramirez

• Decision Date: 10 November 1983
• Docket Number: No. 52354,52354
• Citation: 75 Ill.Dec. 241,457 N.E.2d 31,98 Ill.2d 439
• Parties: , 75 Ill.Dec. 241 The PEOPLE of the State of Illinois, Appellee, v. Roberto E. RAMIREZ, Appellant.
• Court: Illinois Supreme Court

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457 N.E.2d 31 98 Ill.2d 439, 75 Ill.Dec. 241 The PEOPLE of the State of Illinois, Appellee,
v.
Roberto E. RAMIREZ, Appellant. No. 52354. Supreme Court of Illinois. Nov. 10, 1983.

[98 Ill.2d 444]

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[75 Ill.Dec. 243] Tyrone C. Fahner, Atty. Gen., State of Ill., Michael B. Weinstein, Asst. Atty. Gen., Chicago, for appellee.

Richard M. Daley, State's Atty., County of Cook, Chicago, Michael E. Shabat, J. Mark Lukanich, Asst. State's Attys., of counsel; James J. Doherty, Public Defender of Cook County, Chicago, for appellant; Robert P. Isaacson, Ira Churgin, Aaron L. Meyers, Asst. Public Defenders, Chicago, of counsel.

CLARK, Justice:

The defendant, Roberto E. Ramirez, 51 years of age, was found guilty of murder and attempted armed robbery following a bench trial in the circuit court of Cook County. The defendant was not sentenced on the attempted-armed-robbery conviction but, pursuant to the discretion granted it by the Illinois death penalty statute, the prosecution requested a death penalty hearing on the defendant's murder conviction. (Ill.Rev.Stat.1977, ch. 38, par. 9-1(d).) The defendant exercised his right to a bifurcated jury sentencing hearing. The jury found, in stage one of the bifurcated hearing, that the defendant was over 18 years old and that a statutory aggravating factor existed: that the deceased was "killed in the course of another felony." (Ill.Rev.Stat.1977, ch. 38, par. 9-1(b)(6).) In stage two, the jury found that [98 Ill.2d 445] there were "no mitigating factors sufficient to preclude the imposition of the death sentence" and signed the verdict form for the sentence of death. Ill.Rev.Stat.1977, ch. 38, par. 9-1(g).

On May 30, 1979, the trial court entered judgment on the jury's verdict and scheduled defendant's execution for August 12, 1979. Defendant's sentence was automatically stayed pending disposition of the appeal

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[75 Ill.Dec. 244] by this court pursuant to Supreme Court Rules 603 and 606. 87 Ill.2d Rules 603, 606.

On September 7, 1977, the defendant entered the First National Bank of Lincolnwood armed with a .38-caliber pistol. The defendant approached James Koumoundouros, an off-duty Chicago policeman who was working as an armed security guard at the bank. The defendant instructed the guard to put his gun down. Koumoundouros began to rise from the desk he was sitting behind while slowly taking his pistol out of its holster with his left hand. He also reached under the desk with his right hand and activated an alarm button which alerted the local police station and set hidden bank cameras in motion. Three gunshots were fired, one from the gun of Koumoundouros and two from the gun of the defendant. The defendant was shot in the thigh, and Koumoundouros suffered a fatal wound to his neck. The two bank cameras photographed the entire incident, each camera taking two pictures per second.

After the shooting, the defendant ran from the bank and jumped into his car, which he had left in the bank parking lot. The defendant had taped license plates which were not registered to him over his own plates. After circling the parking lot twice, apparently to determine if a police car nearby was following him, the defendant fled the scene. While being chased in his car, the defendant crashed into a tree. The defendant was placed under arrest at that time.

[98 Ill.2d 446] At trial, the defendant pleaded insanity. The basic theory of his defense was that due to a long history of alcoholism and heroin addiction, he suffered from alcohol psychosis and organic brain damage which rendered him legally insane at the time of the offense. The trial judge rejected the defendant's theory and found him guilty of murder and attempted armed robbery.

During stage one of the sentencing hearing, the prosecution presented evidence of the September 7, 1977, bank robbery during which the deceased was shot. The prosecution also introduced evidence of an August 6, 1977, bank robbery of the same bank which was also committed by the defendant. The August 6, 1977, bank robbery was also filmed by the two hidden bank cameras. Frances Huritz, a senior vice-president and branch manager of the bank, testified that the defendant was the same man who had robbed the bank on August 6, 1977. Portions of the defendant's trial testimony were introduced by the prosecution at stage one of the sentencing hearing over the objection of defense counsel. At the conclusion of stage one, the jury returned its verdict finding that the defendant was over 18 years of age at the time of the offense and that the statutory aggravating factor of "in the course of another felony" existed, making the defendant eligible for the death penalty.

Stage two of the sentencing hearing consisted of evidence in aggravation and mitigation. The defense relied on two factors which it introduced in mitigation. First, defendant contended that his chronic alcoholism and heroin addiction created an extreme mental and emotional disturbance and, second, that he only shot the deceased after he was shot himself. In aggravation, the State introduced evidence of the defendant's 14 prior convictions and introduced testimony relating to several other offenses. The State also argued that the deceased had not fired the first shot, but even if he had, it did not matter.

[98 Ill.2d 447] In stage two, the jury returned a verdict finding that there were "no mitigating factors sufficient to preclude the imposition of the death sentence."

On appeal before this court, the defendant raises 30 issues. None of the issues the defendant raises relate to his convictions for attempted armed robbery and murder. The first 23 issues relate to alleged errors which the defendant asserts were made during the sentencing hearing and which, he argues, require reversal of his sentence. Seven issues involve challenges to the constitutionality of the Illinois death penalty statute (Ill.Rev.Stat.1977, ch. 38, par. 9-1). Defendant concedes in his

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[75 Ill.Dec. 245] reply brief that several of these issues have already been rejected by this court. We have examined all seven issues and find that they have all been previously decided adversely to defendant.

THE DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT

The first issue the defendant raises in this appeal concerns the trial judge's refusal to instruct the sentencing jury during stages one and two of the sentencing hearing that it was not to consider the defendant's decision not to testify in reaching a verdict. The defendant asserts that the judge's refusal to so instruct the jury, and the prosecutor's comments during closing argument in stages one and two regarding the defendant's decision not to testify, violated his constitutional privilege against self-incrimination and require reversal of his death sentence.

The State maintains that the trial court properly refused to give the defendant's proffered jury instruction because the defendant had voluntarily testified at trial, waiving his privilege against self-incrimination at the sentencing hearing. Also, the State asserts that the effect of the instructions that were given, taken as a [98 Ill.2d 448] whole, clearly imparted to the jurors the fact that the defendant was not required to testify and that his silence could not be considered by them in reaching their decision. The judge had instructed the jury: "The burden is on the State to establish the existence of the statutory aggravating factors beyond a reasonable doubt. The defendant is not required to prove that the prosecution has failed to establish the existence of the statutory aggravating factors; and the defendant is not required to testify." The defendant contends that telling the jury that he was not required to testify falls far short of telling the jury that they could not consider his silence in any way in arriving at their decision.

It is clear that the fifth amendment privilege against self-incrimination extends to the sentencing hearing phase of a defendant's capital murder trial. In Estelle v. Smith (1981), 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, the United States Supreme Court held:

"We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. See Green v. Georgia [ (1979), 442 U.S. 95, 97, 99 S.Ct. 2150, 2151-52, 60 L.Ed.2d 738, 741]; Presnell v. Georgia [ (1978), 439 U.S. 14, 16, 99 S.Ct. 235, 236-37, 58 L.Ed.2d 207, 211]; Gardner v. Florida [ (1977), 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, 401-02] (plurality opinion)." Estelle v. Smith (1981), 451 U.S. 454, 462-63, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359, 369.

Because the defendant in the instant case testified at the guilt-innocence phase of the trial does not mean that he has waived his fifth amendment privilege to remain silent at the sentencing phase of this trial. (People v. Walker (1963), 28 Ill.2d 585, 192 N.E.2d 819; People v. Williams (1962), 25 Ill.2d 562, 185 N.E.2d 686; United States v. Trejo-Zambrano (9th Cir.1978), 582 [98 Ill.2d 449] F.2d 460.) Whether the evidence which he gave at the trial was properly admitted at the sentencing hearing will be discussed later in this opinion, but we do believe that the defendant had the right to remain silent at the sentencing hearing and that his silence could not be used against him.

Since the defendant had the right to remain silent and he exercised that right at the sentencing hearing, he cannot be penalized for exercising that right. See Malloy v. Hogan (1964), 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653, 659.

During the sentencing hearing the defendant tendered a jury instruction based on his constitutional right to remain silent. The instruction read:

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