People v. Viramontes, 1-16-0984

• Citation: 87 N.E.3d 364,2016 IL App (1st) 160984
• Decision Date: 26 September 2017
• Docket Number: No. 1-16-0984,1-16-0984
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Luis VIRAMONTES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 160984

87 N.E.3d 364

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Luis VIRAMONTES, Defendant-Appellant.

No. 1-16-0984

Appellate Court of Illinois, First District, Second Division.

Opinion filed September 26, 2017

Douglas H. Johnson and Nicholas M. Curran, of Kathleen T. Zellner & Associates, of Downers Grove, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Lisanne P. Pugliese, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 After discovering that his wife was having an affair with a former coworker, Luis Viramontes brutally beat her, and she later died from her injuries. At trial, Luis admitted he caused the injuries that led to his wife's death, but claimed he was seriously provoked by her infidelity and that she willingly engaged in aggression against him. A jury convicted Luis of first degree murder, and the trial court sentenced him to 25 years in prison.

¶ 2 Luis appealed his conviction, arguing the trial court (i) should have given a second degree murder instruction because the suggestive text messages and photographs equate to personal discovery of the adulterous act itself and warrant a provocation instruction; (ii) should have granted his request for instructions on involuntary manslaughter, aggravated battery, and domestic battery; (iii) should not have allowed the jury to view two autopsy photographs of his wife's head injuries, which he claimed were unduly prejudicial and inflammatory; and (iv) improperly limited his cross-examination of State witness Liliana Almazan, which might have revealed bias or motive to lie. The appellate court rejected all of these arguments and affirmed the conviction and sentence. People v. Viramontes, 2014 IL App (1st) 130075, 386 Ill.Dec. 164, 20 N.E.3d 25.

¶ 3 Through private counsel, Luis filed a post-conviction petition contending: (i) he was denied effective assistance of trial counsel because his trial attorney failed to consult with or call an expert witness to rebut the State's medical evidence, (ii) his trial counsel was ineffective for failing to make a proper offer of proof to admit impeachment evidence against Liliana Almazan, (iii) the trial court's refusal to issue an involuntary manslaughter instruction violated his rights to due process and a jury trial, (iv) he was denied his right to a fair trial because the trial court admitted into evidence irrelevant and prejudicial text messages between him and his wife, (v) his appellate counsel was ineffective for failing to properly argue that the trial court's refusal to give an involuntary manslaughter instruction violated his rights to due process, and (vi) his appellate counsel was ineffective for failing to raise the improper text message testimony on appeal.

¶ 4 The trial court summarily dismissed Luis's petition finding that all issues raised were frivolous and patently without merit or barred by res judicata. We agree and affirm.

¶ 5 BACKGROUND

¶ 6 At trial, Luis testified that on January 9, 2010, he and his wife, Sandra Rincon-Viramontes, went out for dinner and drinks with family and friends to celebrate his birthday. Sandra's mother watched their two children overnight. The party ended around 11 p.m. Luis testified that on the drive home, he noticed Sandra received a text message, which he thought was strange. Sandra fell asleep in the car, and when they arrived home, Luis carried her inside and put her to bed. When he returned to the car for their belongings, he checked Sandra's phone and saw a sexually explicit text message exchange between Sandra and "Denise."

¶ 7 Luis testified that, unknown to him at the time, Sandra was having an extramarital affair with Andres (Andy) Ochoa, a former coworker. Sandra saved Andy's phone number in her cell phone as "Denise." On January 9, Sandra and Andy exchanged 18 text messages. Their conversation mentioned meeting up and a request from Andy for suggestive photographs. In reply, Sandra sent four or five naked pictures of herself.

¶ 8 Luis testified that when he saw the messages and photographs, he "felt like [his] whole life was turned upside down." He tried calling Denise's number to discover who Sandra had been texting, but no one answered. Luis testified that when he saw the text from Denise stating "you're making me hard," he knew it was from a man and that Sandra was having an affair.

¶ 9 Luis testified he then went into the house to confront Sandra about the affair. He found her in the bathroom snorting cocaine, and they argued about the drugs. The argument continued into the living room, where Luis confronted Sandra about the text messages and naked photos. Sandra asked for her phone back. Luis tried again to call Denise's number. Sandra told Luis that "Denise" was really Andy, she had been intimate with him, and they were in love.

¶ 10 Luis testified he was "angry" and "devastated." He hit Sandra in the face with an open hand. Sandra ran into the bedroom and locked the door. Luis continued to yell at Sandra, calling her vulgar names and reading the text messages aloud. Luis then spray painted the living room and hallway walls and their wedding pictures with explicit words related to the affair. He sat at the kitchen table, put his head down, and cried.

¶ 11 Sandra came out of the bedroom. When she saw the spray-painted walls, she ran toward Luis screaming and swinging at him. She began to hit him in the chest, so he grabbed Sandra's shoulders, "threw her against the door, and then tossed her over the table." Luis told Sandra he was leaving her. She got up and ran at him again. Luis grabbed her by the shoulders and threw her against the refrigerator and then onto the kitchen floor, telling her "Get off me. Leave me. I'm leaving you. I'm not going to be with you no more." He then walked toward the back door.

¶ 12 Sandra got up from the floor, threw her wedding rings at Luis, and said she did not want to be married. Luis testified that Sandra then told him that she had an abortion and killed his baby. Luis said he thought he had facilitated the abortion because he drove her to a doctor's appointment he thought was related to her cancer diagnosis. Luis testified he "lost it" and "couldn't control [himself] after that." Luis grabbed Sandra and threw her into the refrigerator, causing her to hit her head hard. He then threw her onto the floor, where she hit her head again. On the floor in the fetal position, Sandra tried to cover herself as Luis hit her in the face with his hands four or five times.

¶ 13 Luis testified that although he hit and threw Sandra, he was not trying to kill her. He said he was close to potential weapons, including knives, but did not use any because, as he put it, "I wasn't trying to kill her." Luis went outside to calm down and texted "Denise," who did not respond. Around 2:30 a.m., he called his brother, Fernando, and asked him to come over.

¶ 14 When Luis went back in the house, Sandra was in bed. He went over to her and asked if she was alright. She responded, "Babe, I'm sorry," to which he replied he was sorry too. Luis testified Sandra told him to lie next to her and he did. He claimed she hugged him and told him she loved him. Luis testified he tried to comfort her and then she went to sleep.

¶ 15 Luis's brother, Fernando, testified he arrived at the house shortly after 3 a.m. He looked in the bedroom and saw Sandra. He said she did not look hurt, and he thought she was sleeping off her intoxication. He did not notice her breathing unusually and did not believe she needed medical attention. When he asked Luis what happened, Luis seemed confused and repeated the same phrase over and over, "I trusted her, I trusted her." Luis told Fernando he had hit Sandra with his hands. Fernando testified he suggested Luis lay down with Sandra and comfort her. Fernando slept in a separate bedroom.

¶ 16 Luis woke Fernando around 7:30 a.m. and told him that Sandra was breathing differently. Fernando ran to the bedroom. Sandra's breathing was heavy; she mumbled and moaned. He noticed redness on her face, shoulders, and chest. And, he saw blood on the mirror and bed sheet. Fernando again asked Luis what happened. Luis told him to call an ambulance, which Fernando did. According to Fernando, Luis was "very nervous, shocked, [and] confused" and in a state he had never seen his brother. Luis left the house at his instruction, but called "countless times" throughout the day to check on Sandra.

¶ 17 Sandra was taken to the hospital by ambulance. In the emergency room, she was unable to communicate. Photographs were taken of her injuries and extensive bruising. She had no fractures or injuries to her internal organs, other than her brain. Toxicology reports were positive for cocaine. Sandra was put on life support. She remained in a coma until her family had her ventilator removed when they were informed she would not recover. Sandra died on January 31, 2010. Luis turned himself in to the police on January 13.

¶ 18 When asked by his attorney on direct examination if he and Sandra ever exchanged "sexy pictures" via text message Luis said no. On cross-examination, the State asked Luis about texts of a sexual nature that he exchanged with his wife and specifically asked about text messages sent between January 5 and 9, 2010. Defense counsel's objections based on marital privilege were overruled. Luis responded that he could not recall sending and receiving most of the messages. Luis admitted sending Sandra text messages on the night he beat her asking, "Do you have a problem with me?"

¶ 19 On re-direct, Luis's attorney asked him about additional text messages Luis sent to Sandra in the days before the beating, telling her that he loved her. The parties then stipulated that all of the text messages referred to during direct and cross-examination were exchanges between Luis and Sandra.

¶ 20 Before trial, the State...