FOURTH DIVISION FEBRUARY 22, 2007
No. 1-05-0845
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 9450 (04) ) OSCAR MARTINEZ, ) Honorable ) Dennis A. Dernbach, Defendant-Appellant. ) Judge Presiding.
JUSTICE CAMPBELL delivered the opinion of the court:
Following a bench trial, the circuit court of Cook County found defendant Oscar Martinez
guilty of armed robbery and sentenced him to 20 years in prison. Defendant now appeals,
arguing that: (1) the trial court erred in failing to suppress his statements to the police, despite the
State's failure to notify him of his right to contact the Mexican consulate; (2) the trial court erred
in failing to suppress his statements to the police, where the Miranda warnings were not
completely given; and (3) the trial court abused its discretion in sentencing him to 20 years in
prison, when a codefendant was sentenced to 10 years for the same offense.
The following facts are relevant to this appeal. On February 13, 2000, Frederick Jamison
was fatally shot in the head in connection with a faked drug transaction and arranged robbery. In
the transaction, a group of men lured Frederick and others to a specified location on the premise
of selling them a large quantity of marijuana and then robbed Frederick and the others of the 1-05-0845
money while pretending to be police officers. Martinez was to bring fake marijuana to the
location, with his appearance being a signal to begin the robbery.
Defendant was taken into custody on February 13, 2000, and later charged in a 38-count
indictment for felony murder based on aggravated vehicular hijacking and felony murder based
on armed robbery; and also with five counts for the armed robbery and aggravated vehicular
hijacking of Roderick Jamison, Corey Brown, John Smith, Jonathan Stevenson and Leroy
Presley. Maurice Taylor, Ventura Alvarez, George Rivera, Gilbert Roman, David Guevara and
Alvin Harris were charged as codefendants.1
Prior to trial, defendant filed motions challenging the admissibility of statements he made
to police: an oral statement to Chicago police detectives Velez and Rodriguez; an oral statement
to Chicago police detective Velez and Assistant State's Attorney Stevens; an oral statement to
Chicago police sergeant Pena and Assistant State's Attorney Luis Martinez; and a written
statement to Chicago police sergeant Pena and Assistant State's Attorney Martinez. Defendant's
first motion alleged that the police failed to properly give him the Miranda warnings, particularly
given that defendant was not fluent in the English language. Defendant's second motion repeated
these alleged failings, adding that the State's interrogations violated the terms of the Vienna
1 This appeal does not address the cases of codefendants. Taylor's appeal was disposed of
in a nonpublished order (No. 1-04-0239, June 24, 2005); Roman's appeal was dismissed on his
own motion (No. 1-04-2493, February 23, 2006); Rivera's appeal was disposed of in a
nonpublished order (No. 1-04-2164, November 16, 2006). This court has no information
regarding the appeals, if any, of the remaining defendants.
2 1-05-0845
Convention on Consular Relations (Vienna Convention on Consular Relations, opened for
signature April 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261).
At a hearing on the Miranda motion, the State called Detectives Velez and Pena as
witnesses. Detective Velez testified that on February 14, 2000, he and his partner interrogated
defendant. Detective Velez testified that he is fluent in Spanish. Detective Velez did not have a
Spanish Federation of Police book or any form containing the Miranda warnings in Spanish.
Detective Velez testified that at the start of the first interrogation he advised defendant in Spanish
that he had the right to remain silent, that anything he said could be used against him, that he had
the right to an attorney, and that if he could not afford one, an attorney would be appointed.
Defendant then agreed to speak and gave an inculpatory statement to the police.
Detective Velez testified that on February 16, 2000, he acted as an interpreter for an
interrogation of defendant by Assistant State's Attorney (ASA) Stevens. Detective Velez
testified that he admonished defendant "the same way as [he] did it last time." Defendant again
agreed to speak and gave an inculpatory statement to the police.
Sergeant Pena testified that she was asked to act as the translator for two interrogations of
defendant by ASA Luis Martinez. Sergeant Pena testified that she is fluent in Spanish. Sergeant
Pena testified that Spanish Miranda forms were not used. Sergeant Pena testified that she
advised defendant that he had the right to remain silent, that anything he said could be used
against him in a court of law, that he had the right to an attorney and have him present during any
questioning, and that if he did not have money, an attorney would be appointed. Sergeant Pena
admitted that she could not say whether those were the exact words used. Defendant's written
statement was in English and was translated to Spanish by Sergeant Pena for defendant's
signature.
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The trial court denied defendant's Miranda motion.
At the hearing on defendant's other motion to suppress, defendant testified that he was
born in Mexico City, Mexico, and had never been a citizen of the United States. The parties
stipulated that during none of the four interrogations at issue did the police advise defendant that
he had certain rights under the Vienna Convention, specifically the right to have someone from
the consulate speak with him, the right to an attorney supplied by the consulate, and the right to
have an impartial interpreter. The State so stipulated with the caveat that it did not believe
defendant had a right to an impartial interpreter. The parties also stipulated that the police did
not contact the consulate on their own to inform the consulate that defendant was in custody.
Rita Vargas, who worked for the Mexican Consulate, testified that pursuant to the Vienna
Convention, one of her functions was to explain to Mexican nationals differences in the United
States and Mexican legal systems. Typically, Vargas would not tell nationals to remain silent,
but would advise them to await an attorney.
The trial court denied the motion to suppress, ruling that defendant had no remedy under
the Vienna Convention.
At the bench trial, defendant's inculpatory written statement was introduced into
evidence. The State also called Roderick Jamison and John Smith as witnesses; their testimony
regarding the offenses was similar to the account given in defendant's written statement. Both
Roderick Jamison and John Smith identified defendant as the man who carried the bag of
supposed marijuana into Ventura Alvarez's repair shop, where the robbery took place.
The trial court ultimately found defendant guilty of five counts of armed robbery,
acquitting him on the remaining charges. The trial court then merged the armed robbery counts
into one conviction. Following the denial of defendant's posttrial motion, the trial court
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sentenced defendant to 20 years in prison. The trial court denied defendant's motion for
reconsideration; this appeal followed.
I
This court first turns to address defendant's claim that the trial court erred in failing to
suppress his statements to the police because the Miranda warnings were not completely given.
In Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612 (1966),
the Supreme Court held that before conducting a custodial interrogation, law enforcement
officers must administer warnings to the defendant sufficient to inform him of his privilege
against self-incrimination. The four essential elements of the warning that is required to be given
to a defendant in custody before questioning are: (1) the defendant must be told of his right to
remain silent; (2) that anything he says may be used against him; (3) that he has the right to have
counsel present before and during questioning; and (4) that he is entitled to have counsel
appointed if he cannot afford one. Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at
1630 ; California v. Prysock, 453 U.S. 355, 358-59, 69 L. Ed. 2d 696, 700-01, 101 S. Ct. 2806,
2809 (1981); United States v. Espinosa-Orlando, 704 F.2d 507, 514 (11th Cir. 1983).
However, the Supreme Court has never insisted that Miranda warnings be given in the
exact form described in that opinion. Duckworth v. Eagan, 492 U.S. 195, 202, 106 L. Ed. 2d
166, 176, 109 S. Ct. 2875, 2880 (1989). The Miranda Court merely stated that "[t]he warnings
required and the waiver necessary in accordance with our opinion today are, in the absence of a
fully effective equivalent, prerequisites to the admissibility of any statement made by a
defendant." (Emphasis added.) Miranda, 384 U.S. at 476, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629;
see also Prysock, 453 U.S. at 359, 69 L. Ed. 2d at 701, 101 S. Ct. at 2809 (per curiam) ("[N]o
talismanic incantation [is] required to satisfy [Miranda's] strictures"). Nevertheless, Miranda
5 1-05-0845
warnings must reasonably convey to a suspect his rights. Duckworth, 492 U.S. at 203, 106 L.
Ed. 2d at 177, 86 S. Ct. at 2880.
In this case, defendant argues that the warnings were fatally defective because the State
did not inform him that he had the right to have counsel present during questioning and the right
to consult with counsel prior to questioning.
This court has held, however:
"While the better practice would be for the police to make explicit
that defendant's right to consult with a lawyer may be both before
and during any police interrogation, we hold that the language used
in this case was sufficient to imply the right to counsel's presence
during questioning. We note that, as opposed to Duckworth, no
restrictions were stated by the police in the present case as to how,
when, or where defendant might exercise his right 'to consult with
a lawyer.' " (Emphasis omitted.) People v. Walton, 199 Ill. App.
3d 341, 344-45 (1990).
Accordingly, defendant has failed to show that the trial court erred in denying his motion to
suppress under Miranda.
II
Defendant next argues that the trial court erred in failing to suppress his statements to the
police, despite the State's failure to notify him of his right to contact the Mexican consulate. The
Vienna Convention, drafted in 1963, is intended to "contribute to the development of friendly
relations among nations, irrespective of their differing constitutional and social systems." Vienna
Convention on Consular Relations, opened for signature, April 24, 1963, art. 36, 21 U.S.T. 77,
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596 U.N.T.S. 261. The United States, upon the advice and consent of the Senate, ratified the
Convention in 1969. 21 U.S.T. at 372, 596 U.N.T.S. at ____. Article 36 of the Convention,
which addresses consular officers' access to their nationals detained by authorities in a foreign
country, provides in part as follows:
"1. With a view to facilitating the exercise of consular
functions relating to nationals of the sending State:
(a) consular officers shall be free to
communicate with nationals of the sending State
and to have access to them. Nationals of the sending
State shall have the same freedom with respect to
communication with and access to consular officers
of the sending State;
(b) if he so requests, the competent
authorities of the receiving State shall, without
delay, inform the consular post of the sending State
if, within its consular district, a national of that
State is arrested or committed to prison or to
custody pending trial or is detained in any other
manner. Any communication addressed to the
consular post by the person arrested, in prison,
custody or detention shall also be forwarded by the
said authorities without delay. The said authorities
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shall inform the person concerned without delay of
his rights under this sub-paragraph;
(c) consular officers shall have the right to
visit a national of the sending State who is in prison,
custody or detention, to converse and correspond
with him and to arrange for his legal representation.
They shall also have the right to visit any national of
the sending State who is in prison, custody or
detention in their district in pursuance of a
judgment. Nevertheless, consular officers shall
refrain from taking action on behalf of a national
who is in prison, custody or detention if he
expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall
be exercised in conformity with the laws and regulations of the
receiving State, subject to the proviso, however, that the said laws
and regulations must enable full effect to be given to the purposes
for which the rights accorded under this Article are intended." 21
U.S.T. at 100-01, 596 U.N.T.S. 261.
Defendant argues that Article 36 grants him individual, fundamental, judicially enforceable rights
and that the violation of these rights should be remedied in a state criminal proceeding by
applying an exclusionary rule and suppressing the statements he made to the police.
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The United Sates Supreme Court recently addressed an Article 36 claim raised in a state
court. Sanchez-Llamas v. Oregon, 548 U.S. ___, 165 L. Ed. 2d 557, 126 S. Ct. 2669 (2006).
The Court assumed, without deciding, that Article 36 granted a foreign national individual's
enforceable rights. Sanchez-Llamas, 548 U.S. at ___, 165 L. Ed. 2d at 574, 126 S. Ct. at 2677-
78. However, the Court ultimately denied the claim that the state court was required to apply
suppression rule in cases of Article 36 violations:
"Of course, it is well established that a self-executing treaty
binds the States pursuant to the Supremacy Clause, and that the
States therefore must recognize the force of the treaty in the course
of adjudicating the rights of litigants. See, e.g., Hauenstein v.
Lynham, 100 U.S. 483, 25 L. Ed. 628 (1880). And where a treaty
provides for a particular judicial remedy, there is no issue of
intruding on the constitutional prerogatives of the States or the
other federal branches. Courts must apply the remedy as a
requirement of federal law. Cf. 18 U.S.C. § 2515; United States v.
Giordano, 416 U.S. 505, 524-525, 94 S. Ct. 1820, 40 L. Ed. 2d 341
(1974). But where a treaty does not provide a particular remedy,
either expressly or implicitly, it is not for the federal courts to
impose one on the States through lawmaking of their own."
Sanchez-Llamas, 548 U.S. at ___, 165 L. Ed. 2d at 576, 126 S. Ct.
at 2680.
In this case, defendant acknowledges that this court has repeatedly held that suppression
of statements is not an available remedy for violations of Article 36 of the Vienna Convention.
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People v. Griffith, 334 Ill. App. 3d 98, 111 (2002); People v. Hernandez, 319 Ill. App. 3d 520,
531 (2001); People v. Villagomez, 313 Ill. App. 3d 799, 809-12 (2000). Defendant argues that
we should depart from this precedent, based on article I, section 12, of the Illinois Constitution of
1970, which states:
"Every person shall find a certain remedy in the laws for all
injuries and wrongs which he receives to his person, privacy,
property or reputation. He shall obtain justice by law, freely,
completely, and promptly." Ill. Const. 1970, art. I, §12.
However, our supreme court has repeatedly held that the remedy and justice provision of the
Illinois Constitution of 1970 is merely an expression of a philosophy and not a mandate that a
certain remedy be provided in any specific form. Segers v. Industrial Comm'n, 191 Ill. 2d 421
(2000); DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57 (1992); Sullivan v. Midlothian Park
District, 51 Ill. 2d 274 (1972). The provision was "not meant to have a substantive effect on
Illinois law." Huter v. Ekman, 137 Ill. App. 3d 733, 735 (1985).
Defendant might have argued--though he did not--that he was entitled to greater
protections than federal law provides under article I, section 2, the due process clause in our state
constitution. Ill. Const. 1970, art. I, §2; see, e.g., People v. McCauley, 163 Ill. 2d 414 (1995)
(failing to inform the accused that an attorney retained by the accused's family had arrived and
failing to grant access to said counsel violated state due process guarantee, contrary to the
holding in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)).
However, we note that McCauley was in many respects a reaffirmation of preexisting Illinois
case law, whereas the case law here runs against defendant.
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In addition, this court has held that a party seeking relief under the Vienna Convention is
required to show actual prejudice in order to be entitled to that relief. Villagomez, 313 Ill. App.
3d at 811. The Villagomez court also approvingly discussed United States v. Alvarado-Torres,
45 F. Supp. 2d 986 (S.D. Cal.1999), in which the court considered just how the terms of the
Vienna Convention would be applied when a foreign national was arrested for a criminal offense.
The federal court first noted that the Vienna Convention does not require law enforcement
officers to allow a foreign national to contact a consular representative before they begin an
interrogation. Further, even if the foreign national requests to contact the consulate after being
arrested, the Vienna Convention does not require that the officers delay their interrogation until
contact is made. The federal court looked at the State Department's interpretation of the
Convention. The State Department has indicated that officials comply with the notification
requirement by notifying the foreign national of his right to contact the consulate before he is
booked for detention. Officers would comply with the Convention by contacting the consulate
within 24 hours, or even as late as 72 hours, of the foreign national's request. The State Depart-
ment has noted that the Vienna Convention does not require that the consulate be notified outside
of its regular working hours. Villagomez, 313 Ill. App. 3d at 812, citing Alvarado-Torres, 45 F.
Supp. 2d at 991.
In this case, defendant was notified of his Miranda rights in Spanish, and he freely
acknowledged that he understood those rights and that he was willing to answer questions in
waiver of those rights. The first interrogation occurred at 6 p.m. on February 14, 2000; there is
no showing that this was during the consulate's regular working hours. The final interrogation
resulted in a written statement taken on February 16, 2000--less than 72 hours later. Given this
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record, defendant could not show any prejudice resulting from the State's failure to inform him of
any rights defendant might have under the Vienna Convention.
Furthermore, the reasoning of the Supreme Court in Sanchez-Llamas in denying
suppression as a remedy often applies with equal force in the state court context. For example:
"Sanchez-Llamas argues that the language of the
Convention implicitly requires a judicial remedy because it states
that the laws and regulations governing the exercise of Article 36
rights 'must enable full effect to be given to the purposes for which
the rights... are intended,' Art. 36(2), 21 U.S.T., at 101 (emphasis
added). In his view, although 'full effect' may not automatically
require an exclusionary rule, it does require an appropriate judicial
remedy of some kind. There is reason to doubt this interpretation.
In particular, there is little indication that other parties to the
Convention have interpreted Article 36 to require a judicial remedy
in the context of criminal prosecutions. See Department of State
Answers to Questions Posed by the First Circuit in United States v.
Nai Fook Li, No. 97-2034 etc., p. A-9 (Oct. 15, 1999) ('We are
unaware of any country party to the [Vienna Convention] that
provides remedies for violations of consular notification through
its domestic criminal justice system')." (Emphasis in original.)
Sanchez-Llamas v. Oregon, 548 U.S. ___, 165 L. Ed. 2d 576-77,
126 S. Ct. at 2680.
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Such reasoning tends to run contrary to applying the remedy and justice provision of the Illinois
Constitution of 1970 as more than an expression of a philosophy in this case. It also tends to run
contrary to the argument that due process requires suppression as a remedy in this context.
Indeed, as the Supreme Court also reasoned, "suppression is not the only means of
vindicating Vienna Convention rights. A defendant can raise an Article 36 claim as part of a
broader challenge to the voluntariness of his statements to police." Sanchez-Llamas v. Oregon,
548 U.S. ___, 165 L. Ed. 2d at 578-79, 126 S. Ct. at 2682. Thus, foreign nationals are not denied
a remedy under the Illinois Constitution of 1970.
The Supreme Court further raised a larger consideration:
"We also agree with the State of Oregon and the United
States that our authority to create a judicial remedy applicable in
state court must lie, if anywhere, in the treaty itself. Under the
Constitution, the President has the power, 'by and with the Advice
and Consent of the Senate, to make Treaties.' Art. II, § 2, cl. 2. The
United States ratified the Convention with the expectation that it
would be interpreted according to its terms. See Restatement
(Third) of Foreign Relations Law of the United States § 325(1)
(1986) ('An international agreement is to be interpreted in good
faith in accordance with the ordinary meaning to be given to its
terms in their context and in the light of its object and purpose'). If
we were to require suppression for Article 36 violations without
some authority in the Convention, we would in effect be
supplementing those terms by enlarging the obligations of the
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United States under the Convention. This is entirely inconsistent
with the judicial function. Cf. The Amiable Isabella, 6 Wheat. 1,
71, 5 L. Ed. 191 (1821) (Story, J.) ('[T]o alter, amend, or add to
any treaty, by inserting any clause, whether small or great,
important or trivial, would be on our part an usurpation of power,
and not an exercise of judicial functions. It would be to make, and
not to construe a treaty')." Sanchez-Llamas, 548 U.S. ___, 165 L.
Ed. 2d at 576, 126 S. Ct. at 2679.
If it is improper for the Supreme Court to enlarge the obligations of the United States under the
Convention, it would arguably be worse for this court to do so.
In sum, defendant has not offered any persuasive reason for this court to abandon our
prior case law and impose the exclusionary rule in cases of alleged Article 36 violations.
III
Finally, defendant argues that the trial court erred in sentencing him to 20 years in prison,
when a codefendant was sentenced to 10 years for the same offense. Sentencing a defendant is a
matter of judicial discretion and, therefore, if within statutory limits, a sentence will not be
disturbed on appeal unless the trial judge abused his discretion. People v. Perruquet, 68 Ill. 2d
149, 153 (1977). The reason we review the sentence under this standard is because after seeing
the evidence and viewing the defendant, the trial judge is "in a better position to determine the
punishment to be imposed." Perruquet, 68 Ill. 2d at 154. This court will not substitute its
judgment for that of the trial court simply because we would have imposed a different
punishment. Perruquet, 68 Ill. 2d at 156.
14 No. 1-05-0845 Generally, similarly situated defendants should not receive grossly disparate sentences;
however, a mere disparity of sentences is not in and of itself a violation of fundamental fairness.
People v. Caballero, 179 Ill. 2d 205, 216 (1997). While defendants similarly situated should not
receive grossly disparate sentences, equal sentences are not required for all participants in the
same crime. People v. Godinez, 91 Ill. 2d 47, 55 (1982); People v. Eubanks, 283 Ill. App. 3d 12,
25 (1996). A difference may be justified by the relative character and history of the
codefendants, the degree of culpability, rehabilitative potential, or a more serious criminal record.
People v. Wolfe, 156 Ill. App. 3d 1023, 1028 (1987). It is not the disparity that controls, but the
reason for the disparity. People v. Coustin, 174 Ill. App. 3d 824, 827 (1988).
This court has held that codefendants are not similarly situated where they have not been
convicted of the same set of crimes. E.g., People v. Eubanks, 283 Ill. App. 3d 12, 25 (1996). In
this case, defendant was sentenced to 20 years for armed robbery, while codefendant Rivera was
sentenced to 10 years for armed robbery. However, Rivera was also sentenced to 40 years in
prison for murder. Thus, the two defendants were not similarly situated. Accordingly, the trial
court did not abuse its discretion is sentencing defendant to 20 years in prison.
For all of the aforementioned reasons, the judgment of the circuit court of Cook County is
affirmed.
NEVILLE, J., concurs.
PRESIDING JUSTICE QUINN, specially concurring:
I agree that the trial court did not err in denying the defendant's motion to suppress his
statements to the police and in sentencing the defendant to 20 years in prison. I also agree that
Sanchez-Llamas v. Oregon, 584 U.S. _____, 165 L. Ed. 2d 557, 126 S. Ct. 2669 (2006), is
16 No. 1-05-0845 dispositive of the defendant's argument based on Article 36 of the Vienna Convention. I write
separately to address a concern raised by justices of our supreme court in their decision in People
v. Madej, 193 Ill. 2d 395 (2000).
In that case, the court upheld the defendant's death sentence based on his conviction for
first degree murder and rape. The defendant was a Polish national. After arresting the defendant,
the police failed to advise the defendant of his rights pursuant to Article 36 of the Vienna
Convention. Defendant's death sentence was affirmed on direct appeal (People v. Madej, 106 Ill.
2d 201 (1985)). In 1998, the defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (west 1998)) and a petition
for writ of mandamus. The Consul General for the Republic of Poland was granted leave to
intervene in the mandamus proceeding. (People v. Madej, 193 Ill. 2d at 398-400). On appeal
from the denial of his section 2-1401 petition and his petition for mandamus, defendant argued
that the denial of his right to consular notification under Article 36 of the Vienna Convention
rendered his conviction and death sentence void. The supreme court held that the defendant's
claims were procedurally barred as they were made some 14 years after the expiration of the two-
year limitation mandated by section 2-1401. People v. Madej, 193 Ill. 2d at 402.
Justices McMorrow, Harrison and Heiple dissented, Justice Heiple writing:
"What is cavalierly dismissed here is that the consular notification
requirement is meant to ensure that foreign nationals imprisoned abroad
have adequate legal representation and that they should be tried in accordance
with principles of justice generally recognized in the international community
by allowing consular officials to consult with the defendant and with attorneys,
court officials and prosecutors. It is important to note that this protection
17 No. 1-05-0845 is designed for Americans abroad as well as for foreign nationals in the United
States. In the instant case, however, the Polish Consul General was not
even aware of defendant's situation until 1998, some 16 years after his con-
viction and sentence." People v. Madej, 193 Ill. 2d at 412 (Heiple, J.,
dissenting, joined by McMorrow and Harrison, JJ.).
Clearly, the judges and lawyers who deal with the issue of consular notification treat it
very seriously. Unfortunately, this concern is not shared by everyone.
The Mexican Consulate of Chicago has a listed phone number of 312-855-1380. A
person dialing that phone number at any time of the day or night will hear an automated message
directing the caller to push a button to receive more information regarding specific topics. These
include obtaining vehicle permits, BancoMex, tourism, customs, hours of the consulate,
importing household appliances, transportation of corpses or ashes of deceased individuals and
visas. Contacting the consulate in connection with a Mexican national being in the custody of a
law enforcement agency is not one of the menu choices. No human being answers the phone and
the phone number does not provide any method for leaving a message.
This information played no part in my decision to concur in this opinion. As I said in the
beginning, Sanchez-Llamas v. Oregon, 548 U.S. ____, 165 L. Ed. 2d 557, 126 S. Ct. 2669
(2006), is dispositive of the issue of the effect of a violation of Article 36 of the Vienna
Convention. I provide this information for the benefit of those people who will read this opinion
and conclude that this court is improperly sanctioning the actions of law enforcement officers
who are trampling on the rights of foreign nationals. I also provide this information for the
benefit of all foreign consulates in Illinois.
18 No. 1-05-0845 The defendant argues that the consulate notification requirement of Article 36 of the
Vienna Convention is meaningless without the "hammer" of the exclusionary rule to back it up.
As discussed by the majority, the Supreme Court has rejected this argument. Sanchez-Llamas v.
Oregon, 548 U.S. at ____, 165 L. Ed. 2d at 579, 126 S. Ct. at 2680. I believe that it is patently
obvious that the consular notification requirement is indeed meaningless when the consulate does
not provide a means to be contacted.
While the Mexican consulate's failure to provide a means for anyone to contact them has
not played a part in the decision of this case, it may properly be considered when made part of the
record in future cases. It would appear to be relevant to the issue of whether a defendant can
establish that he was prejudiced by the failure to advise him of his right to contact his national
consulate. See People v. Villagomez, 313 Ill. App. 3d 799, 811 (2000).