People v. Salazar

• Decision Date: 21 November 1988
• Docket Number: No. 62795,62795
• Parties: , 129 Ill.Dec. 1 The PEOPLE of the State of Illinois, Appellee, v. Manuel SALAZAR, Appellant.
• Court: Illinois Supreme Court

Page 766

535 N.E.2d 766

126 Ill.2d 424, 129 Ill.Dec. 1

The PEOPLE of the State of Illinois, Appellee, v. Manuel SALAZAR, Appellant.

No. 62795.

Supreme Court of Illinois.

Nov. 21, 1988.

Rehearing Denied April 3, 1989.

Michael D. Ettinger and Barry S. Pechter, of Ettinger & Pechter, Ltd., of Oak Lawn, for appellant.

Neil F. Hartigan, Atty. Gen., of Springfield (Shawn Denney, Solicitor Gen., and Terence M. Madsen and Marcia L. Friedl, Asst. Attys. Gen., of Chicago, of counsel), for the People.

Justice CUNNINGHAM delivered the opinion of the court:

On April 10, 1985, a bill of indictment was filed charging defendant, Manuel Salazar, with the murder of a police officer, Martin Murrin, while Officer Murrin was in the course of performing his official duties on September 12, 1984. (Ill.Rev.Stat.1983, ch. 38, pars. 9-1(a)(1), (b)(1).) Subsequent to a change of venue from Will County to McLean County, a jury found defendant guilty of murder. Pursuant to section 9-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1983, ch. 38, par. 9-1) (hereafter referred to as the death penalty statute), a death penalty hearing was held before the same jury (Ill.Rev.Stat.1983, ch. 38, par. 9-1(d)(1)). The jury unanimously found that defendant had attained the age of 18 or more, that statutory aggravating factors existed and that no mitigating factors existed to preclude the imposition of the death sentence. Defendant was sentenced to death. The sentence was stayed pursuant to Supreme Court Rule 609(a) pending appeal to this court (Ill. Const.1970, art. VI, § 4(b), 107 Ill.2d Rules 609(a), 603). This court will address in full all the evidence in this case as it applies to each issue.

I

Defendant argues that he was denied equal protection of the law when the circuit court transferred the cause from Will County to McLean County, resulting in the alleged exclusion of blacks and persons of Spanish origin from the jury venire. Citing Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, defendant specifically argues that he is entitled to an impartial jury drawn from a cross-section of the community.

In Taylor, the United States Supreme Court held that the systematic exclusion of women from sitting on juries violates a defendant's sixth amendment right to have a jury chosen from a fair cross-section of the community. In this case, however, defendant's argument does not involve whether a systematic exclusion of a particular race or ethnic group has occurred, but in actuality whether a lack of a jury chosen from a fair cross-section of a community equal to the community where the crime was committed and from whence this cause was transferred has denied defendant equal protection. This court effectively addressed the issue in People v. Johnson (1986), 114 Ill.2d 170, 102 Ill.Dec. 342, 499 N.E.2d 1355. This court held:

"This is not a case involving the systematic exclusion of 'a "distinctive" group in the community' [citation], which would trigger a fair-cross-section inquiry under the standard recently announced by the Supreme Court in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Nor are we familiar with any constitutional right allowing a defendant to select his own place of trial. [Citation.] To require that the venire of the transferee county proportionately mirror any distinctive groups found in the originating county would either saddle our judiciary with an onerous, if not impossible, task or effectively grant defendants a heretofore unrecognized right to choose their place of trial." 114 Ill.2d at 180-81, 102 Ill.Dec. 342, 499 N.E.2d 1355.

The facts in this case are similar to those in Johnson. Defendant in this case was indicted in the circuit court of the Twelfth Judicial Circuit, Will County. On July 29, 1985, the People raised the issue of change of venue because in previous conversations with defendant's out-of-State counsel, the People were under the impression that defense counsel thought that the case had been transferred from Will County to Kankakee County as a matter of law. However, the People had not received any motion regarding the matter. The local defense counsel confirmed the People's statements. The trial court at this point stated that it did not know if the case would be transferred to Kankakee County because it did not believe that the "climate" would be beneficial to defendant based on previous experiences in that county. The court later expressed concern about transferring the case to Kankakee or Iroquois County and suggested the possibility of Rockford or "someplace like that." Local counsel agreed.

On August 2, 1985, the local defense counsel officially gave notice to the court and the People that it would be filing a motion to change venue in three weeks. Defendant filed his motion for change of venue on August 29, 1985, and on the same date the court held a hearing on the motion. The court granted defendant's motion but reserved its ruling regarding the naming of the situs of the trial. The court also expressed some reservations regarding other areas within the circuit and stated that it would confer with the chief judge regarding the arrangements. Defense counsel expressed no objections to Cook County, but the court stated that it would not be Cook County and possibly would be Peoria or Bloomington or "something like that."

On September 17, 1985, the court filed its written orders transferring the case from Will County to McLean County for trial commencing on November 4, 1985. At the October 18 hearing, the out-of-State defense counsel expressed concern regarding the place of venue because of his need to be near an airport in light of the fact that he was coming from California. The court assured him that Bloomington in McLean County had a substantial airport. Defense counsel stated that if he had any more objections to venue he would submit a written motion. Defense counsel then expressed concern over the selection of jurors in McLean County. The court noted that it had filed its order for change of venue on September 12, 1985, and that defense counsel had waited until October 18, 1985, to express concern. The court told defense counsel that the motion had to be filed very soon because five weeks had passed.

On November 4, 1985, the date of the start of the trial, defense counsel filed a motion to discharge the jury and transfer this case to another county because .82% of the McLean County population is of Hispanic origin and 5% is of black and Hispanic origin, whereas the county of the incident is 4% of Hispanic origin and 14% of black and Hispanic origin. Defendant alleged that Spanish and black persons were being systematically excluded from the available jury pool. Prior to jury selection the court held a hearing on the motion. The trial court denied defense counsel's motion.

This court finds that defense counsel was attempting to force the circuit court to pick a venue favorable to defendant or to defendant's liking. This court does not recognize a right on behalf of a defendant to choose venue. As illustrated in this case, a defendant could continue to object to venue until a favorable situs has been found. The circuit court has discretion to choose the proper venue, and this court finds that the court did not abuse its discretion. The circuit court considered the amount of pretrial publicity, the other counties in the circuit, and the out-of-State defense counsel's concern for an airport and appropriately chose McLean County. Thus, this court finds that the circuit court did not abuse its discretion.

II

Defendant argues that the People failed to prove beyond a reasonable doubt defendant's guilt. Defendant specifically argues that the People failed to prove that defendant had the requisite mental state i.e., that he intentionally killed Officer Murrin. The evidence reveals otherwise.

Officer Thomas Ponce stated that on September 12, 1984, at approximately 5 p.m., he and the deceased were patrolling in full uniform in the northeast section of Joliet. They were traveling in a marked police squad car. As they were traveling eastbound on Woodruff Avenue and were approaching the intersection of Draper Avenue, they observed a green, full-size, four-door car with a group of male Spanish subjects and a male black traveling on Draper Avenue toward Woodruff. Officer Ponce pointed out the car to Officer Murrin. Officer Murrin then told Officer Ponce to continue driving eastbound on Woodruff as Officer Murrin maintained observation of the vehicle. As they passed the vehicle, Officer Murrin instructed Officer Ponce to turn the squad car around as they both continued to keep the green car in their sight. After Officer Ponce made the U-turn, the car under observation was coming toward the squad car. At that time, the car stopped and a black male subject and a Spanish male subject exited the car and began running away from the car. The Spanish subject held a red bag in his hand. Officer Ponce drove the car into a vacant lot which defendant ran across. Officer Murrin then instructed Officer Ponce to "cut him [defendant] off," pointing toward Antram Avenue. Officer Murrin exited the squad car and began pursuit of defendant on foot. About two minutes later during Officer Ponce's attempt to locate his partner or defendant, Ponce heard five gunshots. Eventually, he saw defendant in the rear of a residence. Officer Ponce exited the squad car and yelled, "Halt, police." Defendant looked over his right shoulder at Officer Ponce and then ran off. Although Officer Ponce observed defendant holding a gun at a 45-degree angle, he did not fire at defendant because the distance was too far. He only observed that defendant was carrying a handgun and that defendant did not have any debris or blood on him. Officer Ponce at that time did not observe anything unusual about the right side of defendant's face. Soon afterwards, Officer Ponce found Officer Murrin,...