SECOND DIVISION March 31, 2006
No. 1-04-0856
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Cook County. ) ) RUFFO SALGADO, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge Presiding.
JUSTICE SOUTH delivered the opinion of the court:
Defendant, Ruffo Salgado, appeals his conviction for first degree murder in the shooting
death of Erling Cox following a jury trial. The trial court sentenced him to a 54-year prison term
in the Illinois Department of Corrections.
Early in the proceedings, defendant was represented by the Cook County public
defender=s office. The public defender filed pretrial motions to quash defendant=s arrest and
suppress evidence, and to suppress the identification. Those motions were denied by the trial
court. Just prior to trial, on January 8, 2002, defendant retained new counsel and was
subsequently represented by private counsel.
The evidence presented at trial established the following. On February 22, 1992, Erling
Cox was fatally shot three times while at the Pelican Bar in Chicago. Defendant and his cousin
Saul Salgado, who were both under the legal drinking age at the time, entered the Pelican Bar
and ordered beer. They were approached by the owner of the bar, Carlos Brito, who knew Saul=s 1-04-0856
parents from Mexico. Brito asked them for identification, and when they refused to provide it,
he told them to leave. Brito testified that defendant had a bandage on his nose and that, before
leaving the bar, defendant had an argument with Brito. Defendant warned Brito that he "would
be sorry,@ and he would be back. Defendant and Saul then left the bar.
Defendant and Saul left in defendant=s car and went to a restaurant where they remained
for 45 minutes. They then returned to the Pelican Bar, where Brito was standing in front of the
door. Defendant, who had a .22-caliber revolver with him, put the gun to the back of Brito=s
head and told him that he was going to sell him some beer. Saul was approximately 10 feet
behind defendant when he saw him walk up very close to Brito and begin arguing with him.
Defendant shot once away from Brito and then returned the gun to the back of Brito=s head.
Defendant ordered Brito back into the bar, where Brito told the bartender to call the police. The
bartender then handed the telephone to the victim.
Defendant pushed Brito against the pool table and fired several shots in the bar. Three of
these shots hit the victim, who fell to the ground and subsequently died from the wounds. Gina
Hartung, who was standing inches away from the victim, saw defendant shoot the victim. After
defendant fired inside the bar, Brito threw a pool ball at defendant, and defendant ran from the
bar with the gun in his hand. Saul ran after defendant, and they left in defendant=s car.
Defendant drove to the south side of Chicago, where they went to another bar. Saul testified
they remained on the south side and slept in defendant=s car for three or four days.
Several police officers and detectives arrived at the Pelican Bar shortly after the shooting.
Detective Schorsch entered the bar and saw that the victim was dead. Detective Sobielowski,
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who speaks Spanish, interviewed Brito. Detective Schorsch interviewed Hartung. A physical
description of the shooter was compiled from the interviews. Following interviews with 20 to 25
people at or near the scene, the police checked some of the names given to them, and Saul=s
came up. The police subsequently compiled a photo array with Saul=s photograph in it, which
was shown to Brito. The police attempted to locate Saul, but could not. However, Detective
Abrew spoke to Saul=s brother and learned that defendant had been hanging around with Saul.
The description of defendant given by Saul=s brother matched the description of the offender
wanted for the shooting. Based on that information, the police compiled a second photo array,
this time containing defendant=s picture. When shown this photo array, Brito positively
identified defendant as the shooter.
Following that identification, the police launched a search for defendant. They went to
his previous addresses and places he had been known to frequent but were unable to locate him.
The police also took additional measures to locate defendant: they prepared a "stop order,@ which
notifies everyone in the Chicago police department to contact the detectives at their station
before releasing defendant on bond if he were to be detained; a daily request bulletin was
prepared and submitted, which is dispersed internally within the entire police department and
contains information on people being sought by the police, including photographs; and the
felony review unit of the Cook County State=s Attorney office issued a warrant for defendant=s
arrest by request of the detectives involved in the case on February 25, 1992.
The detectives interviewed Saul on February 27, 1992, and again attempted
unsuccessfully to locate defendant. A federal search warrant for defendant was obtained several
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months after the murder based on unlawful flight to avoid prosecution. Federal immigration
officials were also notified, as well as the United States Marshall=s Service, all cities on the
border in Texas, New Mexico, Arizona, California, and Mexico, because the police learned that
defendant might flee to Mexico. Despite these measures, defendant was still not located.
On August 4, 1999, following a telephone call from an anonymous source, three
detectives from the Chicago police department, including Detective Tyler, and two police
officers from the Cicero police department, went to a second-floor apartment at 1920 South 48th
Court in Cicero to locate and arrest defendant pursuant to the outstanding arrest warrant. Jose
Salgado answered the door and allowed the officers to enter the apartment. Defendant was
located in the rear bedroom. The detectives asked defendant to stand, and when asked for his
name, he told them his name was "Francisco Roman.@ He then produced a social security card,
an Arizona drivers license and an immigration card, all with the name "Francisco Roman,@ along
with his picture. After determining that AFrancisco Roman@ was defendant, Detective Tyler
arrested defendant and transported him to the Area 3 station.
At the station, defendant was placed in a detention room and Detective Schorsch was
notified of the arrest. Detective Schorsch and Detective Thezan, who speaks Spanish, went to
the detention room at approximately 3:30 p.m. Detective Thezan advised defendant of his
Miranda rights in Spanish prior to speaking with him. Schorsch and defendant had a
conversation, with Thezan translating, until Thezan was assigned to a different case. Officer
Centano was then sent to Area 3 to translate at approximately 5 p.m. Defendant was moved into
a conference room, and Officer Centano translated a conversation between Schorsch and
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defendant. During the conversation, Schorsch learned that Brito had been located. Once Brito
arrived at the station, Schorsch contacted the felony review unit, and Assistant State=s Attorney
(ASA) Frank Andreou responded and spoke with Brito. After the interview, Brito viewed a
lineup at 1 a.m. on August 5, 1999, and positively identified defendant as the shooter.
Following the lineup, ASA Andreou, Detective Schorsch, and Officer Centano met with
defendant. ASA Andreou informed defendant that he was an assistant State=s Attorney and not
his lawyer. Officer Centano translated English into Spanish for defendant and defendant=s
responses into English for ASA Andreou. Defendant indicated that he understood, and ASA
Andreou informed defendant of his Miranda rights, which Officer Centano translated from a
preprinted form. There were some words that Officer Centano did not understand, because he
and defendant spoke different dialects of Spanish, so he made sure they understood each other.
Centano stated there was never a point when he could not understand defendant, but sometimes a
word or two would need to be clarified. Centano had acted as translator in his police duties
approximately 1,000 times during his eight years as an officer and had frequently encountered
similar dialect problems. Defendant read the Miranda warnings out loud in Spanish to Officer
Centano and stated he understood the rights he was waiving.
After speaking with defendant, ASA Andreou explained the difference between an oral
statement, a handwritten statement, and a court-reported statement. Defendant agreed to give a
handwritten statement, after which Officer Centano translated every line of the statement into
Spanish for defendant. Corrections were made, and the statement was subsequently signed on
every page by defendant, ASA Andreou, Officer Centano and Detective Schorsch.
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In his statement, defendant said that on February 22, 1992, he and his cousin Saul went to
the Pelican Bar to talk to some guys that had beaten him up and put him in the hospital two
weeks earlier. Saul told defendant to go to the bar because he knew the guys who had jumped
him and that he could talk to them. Saul also said he knew the owner of the bar, and they should
not have any problems. Defendant stated that Saul gave him a gun so he could scare people if
there was a problem. Defendant put the gun in the right pocket of his jacket, and the two of them
entered the bar. When he entered the bar, defendant got beer for himself and Saul while Saul
spoke to the owner. Defendant then saw two of the guys who had beaten him up looking at him
and walking toward him. A girl asked defendant to dance and told him that the men were going
to hit him again and asked him if he was afraid because they would hurt him inside or, later,
outside. Defendant told her there should not be a problem. One of the men was approaching
defendant and the girl, whom the man grabbed by the arm. The man then said that defendant
was the one, and he was going to get him. Defendant finished dancing and told the woman to
bring him another beer.
According to his statement, defendant was afraid and saw that the man was holding a
pool cue in a threatening manner. Another man grabbed defendant, and a third man approached
him. At that time, defendant said, he took out his gun in order to scare them when one of the
men grabbed the gun, and it went off. When the man let it go, defendant backed away, fired his
gun, and backed up some more, and fired again. Defendant said he kept shooting because the
men kept coming toward him. He fired three or four times and stopped shooting once he got
outside. Defendant then got into his car and drove around the area. He did not know that he had
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hit anyone with his shots until Saul told him the next day that a man had been shot. Defendant
stated that he fled to Mexico three or four days later and stayed there for five or six years. He
then went to Arizona, where he used the name "Francisco Roman@ to get work. Defendant came
back to Cicero in February 1999, where he was arrested.
On August 29, 1999, at approximately 7:40 p.m., Hartung arrived at the Area 3 station to
view a lineup. She positively identified defendant in the lineup as the shooter.
In his defense, defendant presented the testimony of Melesia Salgado, Susanna
Casteneda, Oscar Salgado, and Catalina Aviles, all of whom are his older siblings. The four of
them testified that they remembered defendant attending a birthday party for Melesia on
February 22, 1992, at the time the murder occurred. They did not tell the police or prosecutors at
any time prior to trial about defendant being at a party.
Following closing arguments, jury instructions and jury deliberations, defendant was
convicted of first degree murder. Defendant subsequently retained new counsel for his posttrial
proceedings. Posttrial counsel filed a motion for a new trial in light of two new witnesses,
Abraham Perez-Merlos and Ricardo Rivera, who were interviewed by the police and described
the shooter as having a blond, bleached ponytail, which defendant asserted matched Saul=s
description in February 1992. Defendant argued that those two witnesses were listed in general
progress reports but not in the typed police reports, and that their testimony probably would have
changed the result of the trial. The trial court denied defendant=s motion, holding that the
evidence was not new, that the defense had the information about Saul, that defendant had not
demonstrated due diligence, and that the evidence would not have changed the jury=s verdict.
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Defendant subsequently filed a motion to reconsider and vacate the denial of his motion
for new trial, based on the discovery of two additional witnesses, Carmelo and David Mendoza,
who were allegedly witnesses to the shooting. Carmelo Mendoza provided an affidavit, in which
he identified Saul as the shooter and indicated that he knew Saul from school. The trial court
denied the motion, again holding that defendant had not exercised due diligence and that the
evidence would not have changed the jury=s verdict. This appeal followed.
Defendant makes four arguments on appeal: (1) whether the prosecution=s failure to give
the defense exculpatory evidence it had in its possession - a report of two witnesses describing
the State=s key witness as the shooter and a photograph of that witness matching the unique
description of the shooter - violated Brady v. Maryland and necessitates a new trial or, at a
minimum, remand for an evidentiary hearing; (2) whether the trial court improperly denied
defendant=s request for an evidentiary hearing on his newly discovered evidence claim that three
new witnesses described the State=s key witness, Saul Salgado, as the shooter, where one witness
was not listed in any police reports and moved out of town after the shooting, and the other two
witnesses were identified in the police report that the State failed to tender to the defense; (3)
whether defendant=s constitutional right to effective assistance of counsel was violated where
defense counsel failed to file a motion to suppress alleging: (a) that defendant=s purported
statement was not voluntarily signed; (b) that defendant=s waiver of Miranda rights was not
knowing and intelligent where the interrogating officer issued legally deficient rights; and (c)
that the statement was inadmissible due to its lack of reliability, given the translator=s blatant
incompetence; and (4) whether the trial court erred when it failed to suppress the written
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statement where defendant=s signature was procured in violation of the Vienna Convention.
Defendant first contends that the prosecution=s failure to give the defense exculpatory
evidence it had in its possession - a report of two witnesses describing Saul Salgado, the State=s
"key witness," as the shooter and a photograph of Saul matching their unique description of the
shooter - violated Brady v. Maryland and necessitates a new trial or, at a minimum, remand for
an evidentiary hearing.
In Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the United
States Supreme Court held that an accused is denied a fair trial when the prosecution withholds
exculpatory evidence from the accused until after trial. However, in United States v. Agurs, 427
U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), the Supreme Court held that the prosecutor=s
failure to disclose exculpatory evidence must be "material" and result in the denial of a fair trial.
The Court defined "materiality" as omitted evidence which creates a reasonable doubt of guilt
that did not otherwise exist. The Agurs Court further held that the mere possibility that evidence
"might have helped the defense, or might have affected the outcome of the trial, does not
establish >materiality= in the constitutional sense." Agurs, 427 U.S. at 110, 49 L. Ed. 2d at 353,
96 S. Ct. at 2400. In United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 490, 105 S.
Ct. 3375, 3380 (1985), the Court held that the duty to disclose includes impeachment evidence as
well as exculpatory evidence. Brady also applies to exculpatory information known only to the
police and not to the prosecutor, and further requires the individual prosecutor to learn of any
favorable evidence known to others acting on behalf of the government in the case. Kyles v.
Whitley, 514 U.S. 419, 433-34, 437, 131 L. Ed. 2d 490, 505, 508, 115 S. Ct. 1555, 1566, 1567
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(1995).
Illinois Supreme Court Rule 412 (188 Ill. 2d R. 412) governs the disclosure of
information by the prosecution to the defense. Under Rule 412(f), the prosecution must ensure a
free flow of information between investigative personnel and its office sufficient to place within
its possession all information relevant to the accused and the offense charged. 188 Ill. 2d R.
412(f). To that end, Rule 412(a) provides, in pertinent part:
"(a) Except as is otherwise provided in these rules as to
matters not subject to disclosure and protective orders, the State
shall, upon written motion of defense counsel, disclose to defense
counsel the following material and information within its
possession or control:
(i) the names and last known addresses of
persons whom the State intends to call as witnesses,
together with their relevant written or recorded
statements, memoranda containing substantially
verbatim reports of their oral statements, and a list
of memoranda reporting or summarizing their oral
statements. Upon written motion of defense
counsel memoranda reporting or summarizing oral
statements shall be examined by the court in
camera and if found to be substantially verbatim
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reports of oral statements shall be disclosed to
defense counsel; ***
(v) any books, papers, documents, photographs or
tangible objects which the prosecuting attorney intends to
use in the hearing or trial or which were obtained from or
belong to the accused [.]" 188 Ill. 2d Rs. 412(a), (a)(I),
(a)(v).
With respect to the "missing" exculpatory police reports, we find any error by the State
was harmless and immaterial in light of overwhelming evidence against defendant and would not
have changed the result on trial. Defendant was initially represented by the public defender=s
office in this case, but retained private counsel beginning January 8, 2002, and further retained
different private counsel for his posttrial motions. The record indicates that the State turned over
discovery to the public defender, including police reports on October 18, 1999, March 15, 2000,
June 6, 2000, and June 11, 2001. From our reading of the record, because of the changes in
defense counsel during the course of this cause, the "missing" reports very easily could have
been left or lost within the prior defense counsel=s office or files, and does not necessarily
establish that the State failed to tender the documents. We also note that there was no
description of defendant contained in the record, leaving us unable to determine if the
description of Saul was, in fact, "unique" as claimed by the defendant. Additionally, as stated
above, there is also no evidence that the police were initially looking for Saul as a suspect in this
case. Moreover, three eyewitnesses testified for the State, including Saul, that Saul and
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defendant entered the bar and were asked to leave by Brito, that they later returned to the bar and
that defendant began shooting. Hartung and Brito both identified defendant as the shooter from
a photograph in 1992 and in a lineup in 1999. Further, defendant=s own statement indicated that
he and Saul entered the bar together, that he had a gun, and that he began shooting when he was
approached by a man because he was afraid that the man was going to kill him. Accordingly, we
cannot conclude that the State withheld exculpatory evidence from the defense, and defendant is
not entitled to a new trial or evidentiary hearing on this issue.
Regarding the photo array which included Saul Salgado, it was not used by the State at
trial, nor was it obtained from, nor did it belong to, defendant. Moreover, the photo array was
not exculpatory evidence for defendant as there is no indication in the record, contrary to
defendant=s assertions, that Saul was ever a suspect in this case, only that Brito knew him and
that he was present during the shooting. Accordingly, there was no discovery violation with
respect to the photo array.
Defendant next contends that the trial court improperly denied defendant=s request for an
evidentiary hearing on his newly discovered evidence claim that three new witnesses described
the State=s key witness, Saul Salgado, as the shooter, where one witness was not listed in any
police reports and moved out of town after the shooting, and the other two witnesses were
identified in the police report that the State failed to tender to the defense.
"In Illinois, newly discovered evidence warrants a new trial when: (1) it has been
discovered since the trial; (2) it is of such a character that it could not have been discovered prior
to the trial by the exercise of due diligence; (3) it is material to the issue but not merely
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cumulative; and (4) it is of such a conclusive character that it will probably change the result on
retrial." People v. Williams, 295 Ill. App. 3d 456, 462 (1998), citing People v. Molstad, 101 Ill.
2d 128, 134 (1984). "Motions for new trial on grounds of newly discovered evidence are not
looked upon favorably by the courts and should be subject to the closest scrutiny." Williams,
295 Ill. App. 3d at 462. "Moreover, the denial of a motion for a new trial based on newly
discovered evidence will not be disturbed on appeal absent an abuse of discretion." Williams,
295 Ill. App. 3d at 462.
Here, defendant=s posttrial claim of newly discovered evidence was based on the affidavit
of Carmelo Mendoza, a purported eyewitness to the shooting, and potential new witnesses,
Abraham Perez-Merlos and Ricardo Rivera. Defendant=s motion did not indicate how Mendoza
was located, but Perez-Merlos and Rivera were apparently identified in early police general
progress reports and not in the summary reports tendered to the defense. All three witnesses
described the shooter as having a bleached blond ponytail, which Saul purportedly had in 1992.
Additionally Mendoza, who knew Saul from school, indicated that Saul was the shooter.
Mendoza never contacted the police and lived out of state between 1993 and 2000. According to
defendant, Perez-Merlos and Rivera gave their descriptions of the shooter to police, which were
recorded in the police general progress reports that were not turned over to the defense until after
trial. Defendant argued that none of the witnesses were ascertainable prior to trial, but the trial
court denied his motion without an evidentiary hearing, holding that the evidence was not new,
that the defense had the information about Saul, that defendant had not demonstrated due
diligence, and that the allegedly new evidence would not have changed the jury=s verdict.
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We find that the trial court did not abuse its discretion in concluding that the evidence
was not new, that the defense had not demonstrated due diligence and that the evidence would
not have changed the jury=s verdict. As indicated above, defendant was initially represented by
the public defender=s office in this case, but retained private counsel beginning January 8, 2002.
On February 6, 2003, the record indicates that private defense counsel stated that he had received
documents from the public defender=s office including a letter from a State witness who
identified Saul as the shooter. That statement indicates that private defense counsel was aware
that at least one witness may have initially identified Saul as the shooter from discovery he
received from the public defender=s office. The trial in this matter did not occur until sometime
in the fall of 2003, thus allowing defense counsel plenty of time to investigate the contents of
this letter. Moreover, as discussed previously, we find that this alleged new evidence would not
have changed the result on trial given the overwhelming evidence against defendant.
Accordingly, the trial court did not abuse its discretion in denying defendant=s request for an
evidentiary hearing.
Defendant also contends that his constitutional right to effective assistance of counsel
was violated where defense counsel failed to file a motion to suppress alleging: (1) that
defendant=s purported statement was not voluntarily signed; (2) that defendant=s waiver of
Miranda rights was not knowing and intelligent where the interrogating officer issued legally
deficient rights; and (3) that the statement was inadmissible due to its lack of reliability, given
the translator=s blatant incompetence.
In Illinois, ineffective assistance of counsel is established when a defendant shows (1)
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that his attorney=s performance fell below an objective standard of reasonableness, and (2) that,
but for counsel=s shortcomings, a reasonable probability exists that the result of the proceedings
would have been different. People v. Martinez, 348 Ill. App. 3d 521, 536 (2004). When
questioning counsel effectiveness on whether to file a motion to suppress, defendant must show
that such a motion would have been granted and that the outcome of the proceeding would have
been different had the evidence been suppressed. People v Rucker, 346 Ill. App. 3d 873, 885
(2003).
We note at the outset that while defendant=s posttrial motion contained allegations of
ineffective assistance of counsel, these specific matters were not raised in that motion, which
was filed by counsel different from his trial counsel and could have been raised; therefore, they
are waived for consideration on appeal. People v. Enoch, 122 Ill. 2d 176, 185-86 (1988). Issues
raised for the first time on appeal will only be reviewed under the plain error doctrine, which
does not apply because this error did not deprive defendant of a fair and impartial trial, nor was
the evidence closely balanced. People v. Laugharn, 297 Ill. App. 3d 807, 810-11 (1998).
In any event, we find that these issues have no merit as defendant was not prejudiced by
defense counsel=s representations. The record establishes that defense counsel did file a motion
to suppress defendant=s statement based on involuntariness, and the trial court specifically found
that the defendant was properly advised of his Miranda rights and that he knowingly and
intelligently waived those rights. Regarding whether the statement was inadmissible "due to its
lack of reliability, given the translator=s blatant incompetence," the record indicates that
defendant was given proper Miranda warnings by Officer Thezan in Spanish before his first
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custodial questioning, which defendant does not dispute; and he was subsequently given
Miranda warnings by Officer Centano prior to each subsequent questioning. Despite his
contention that the subsequent Miranda warnings by Officer Centano were incorrect, once an
accused is advised of the Miranda warnings and acknowledges his understanding of them, the voluntariness of
subsequent statements is not compromised by failure to repeat the warnings at each successive interview.
People v. Daniel, 238 Ill. App. 3d 19, 32 (1992).
Defendant was granted leave to cite additional authority on this issue, and he cites People
v. Carmona-Olvara, 363 Ill. App. 3d 162, 842 N.E. 2d 313 (2005), to assist this court in
resolving the issue concerning the accuracy and reliability of a statement attributed to defendant
by an interrogating police officer who also served as interpreter. We find Carmona-Olvara to be
distinguishable from the case at bar in the following manner: Carmona-Olvara involved a
situation where the defendant sought to have an interpreter contest the officer=s translation of
defendant=s statement to him when defendant testified that a particular word had a different
meaning than that attributed by the officer. The court held that the trial court erred by excluding
evidence of a competing translation of defendant=s answer to the officer=s question. That is not
the case here and defendant has made no assertion that Officer Centano misstated defendant=s
words in his statement.
As defendant has not established that the motion would have been successful had it
contained these additional arguments, we find that he received effective assistance of counsel at
trial.
Finally, defendant, a Mexican national, contends that the trial court erred when it failed
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to suppress his written statement where his signature was procured in violation of the Vienna
Convention. He contends that this error warrants reversal of his conviction and remand of this
cause for a new trial with instructions that the statement be suppressed. We disagree.
Both the United States and Mexico are parties to and have ratified the Vienna
Convention. Vienna Convention on Consular Relations, opened for signature April 24, 1963,
art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261 (December 24, 1969, entered into force with respect to
the United States). As such, the provisions of the Vienna Convention are considered the
supreme law of the land, equal to federal statutes, and binding upon the states. U.S. Const., art.
VI. The question in this case is whether the Vienna Convention confers a right and remedy
individually to defendant.
This precise issue was addressed by this court in the recent case of People v. Sanchez,
362 Ill. App. 3d 1093, 841 N.E.2d 478 (2005), pet. for leave to appeal pending, No. 101869. In
that case, the defendant claimed that her confession violated the Vienna Convention. Both the
trial and appellate courts agreed; however, they also found that suppression of statements was
not a proper remedy in that case. Sanchez, 362 Ill. App. 3d at 1104, 841 N.E.2d at 487.
Article 36(1)(b) states in full:
"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
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the consular post by the person arrested, in person, custody or
detention shall also be forwarded by the said authorities without
delay. The said authorities shall inform the person concerned
without delay of his rights under this sub-paragraph." Vienna
Convention, art. 36(1)(b), 21 U.S.T. at 101, 596 U.N.T.S. at ___.
The plain language of this section appears to confer an individual right upon foreign
nationals in party States. Sanchez, 362 Ill. App. 3d at 1105, 841 N.E.2d at 488. Neither the
Illinois nor United States Supreme Court has definitively decided that the Vienna Convention
confers an individual right. Sanchez, 362 Ill. App. 3d at 1105, 841 N.E.2d at 488. However,
most recently, the Seventh Circuit Court of Appeals provided a summary of case law on this
issue and found that the Vienna Convention was self-executing and provides an individual right
of action. Sanchez, 362 Ill. App. 3d at 1105, 841 N.E.2d at 488, citing Jogi v. Boges, 425 F.3d
367 (7th Cir. 2005). Thus, defendant does have individual rights under the Vienna Convention,
which were violated in the instant case. Our next inquiry then, is whether the suppression of
evidence is the proper remedy for violation of the Vienna Convention.
To date, no court in Illinois has held that suppression of evidence is a remedy for a
violation of the Vienna Convention. Sanchez, 362 Ill. App. 3d at 1105, 841 N.E.2d at 487;
People v. Vasquez, 356 Ill. App. 3d 420, 426 (2005); 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). Moreover, the Seventh Circuit noted that though an individual
right was created, the overwhelming authority states that the remedy for a violation is not the
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suppression of evidence. Jogi, 425 F.3d at 379-80.
As the Seventh Circuit Court in Jogi and this court in Sanchez have held before us, we
decline defendant=s request to ignore the overwhelming precedent throughout the country that
suppression is not an available remedy for violation of the Vienna Convention. Defendant may
have other avenues to pursue a remedy for violation of his rights; we, however must reject the
instant claim. Accordingly, we find that the trial court did not err in failing to suppress
defendant=s written statement for violation of the Vienna Convention.
For the forgoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
GARCIA, P.J., and HALL, J., concur.
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