People v. Slywka

Opinion

SECOND DIVISION MARCH 31, 2006

No. 1-03-1410

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 28960 ) ) The Honorable WALTER B. SLYWKA, ) Colleen McSweeney- ) Moore, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the opinion of the court.

On December 8, 2000, the defendant, Walter B. Slwyka, was indicted for first degree murder (720 ILCS 5/9-1 (West 2000)).

Specifically, that on March 28, 1992, the defendant (1)

"intentionally or knowingly shot and killed Jose Roman with a

firearm" (See 720 ILCS 5/9-1(a)(1) (West 2000)) (count I), and

(2) shot and killed Roman with a firearm "knowing that such

shooting with a firearm created a strong probability of death or

great bodily harm" (see 720 ILCS 5/9-1(a)(2) (West 2000)) (count

II). On March 20, 2003, a jury returned a general verdict

finding the defendant guilty of first degree murder. On April

22, 2003, the defendant was sentenced to 25 years in the Illinois

Department of Corrections (DOC), on the offense of murder with 1-03-1410

the intent to kill or injure (720 ILCS 5/9-1(a)(1) (West 2000)).

The defendant appeals, arguing: (1) he was improperly

convicted of first degree murder where one of the two counts

alleged intentional murder, because he had been acquitted of

attempt murder, based on the same shooting, in an earlier

proceeding; (2) his fifth amendment privilege against self-

incrimination was violated by the improper admission of

statements he had made to a juvenile probation officer (U.S.

Const., amend. V); and (3) he was denied his right to a fair

trial due to prosecutorial misconduct.

BACKGROUND

I. Prior Juvenile Proceedings

On April 23, 1992, a petition for adjudication of wardship

was entered against the defendant, and the defendant was charged

in a juvenile petition with, inter alia, attempt murder (Ill. Rev. Stat. 1991, ch. 38, par. 8-4), armed violence (Ill. Rev.

Stat. 1991, ch. 38, par. 33A-2), aggravated discharge of a

firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2(a)), and two

counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, pars.

12-4(a), (b)(1)). 12-4(a), (b)(1).

The juvenile charges stemmed from the shooting of Jose Roman

in Chicago, Illinois, on March 28, 1992. Specifically, the

attempt murder charge alleged that the defendant "took a

substantial step towards the commission of the crime of murder by

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attempting to kill (Jose A. Roman) by shooting [him] in the head

with a sawed off shot gun causing serious injury." The counts of

armed violence and aggravated discharge of a firearm were also

based on the shooting of Roman. One aggravated battery count

alleged that the defendant "knowingly, without legal

justification caused great bodily harm to [Roman] by shooting

[him] in the head with a sawed off shotgun causing great bodily

injury." The other aggravated battery count alleged that the

defendant "knowingly, without legal justification caused bodily

harm to [Roman] by shooting [him] in the head causing serious

injury while using a deadly weapon."

In April 1993, the defendant was adjudicated delinquent by

the juvenile court of armed violence and aggravated battery.

However, the defendant was acquitted of attempt murder. In May

1993, the defendant was committed to the juvenile department of

corrections, and he was paroled in December 1994.

II. Instant Criminal Proceedings

Jose Roman languished in extremis for eight years, until he died on October 24, 2000. On December 8, 2000, the State charged

the defendant, and codefendant Samuel Rios, with two counts of

first degree murder based on the 1992 shooting of Roman.

Prior to trial, defense counsel filed a motion to dismiss

the criminal indictment based on collateral estoppel. Defense

counsel argued that the defendant's earlier acquittal of attempt

murder barred a subsequent prosecution for murder based on the

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same facts. The trial court rejected the argument and denied the

defendant's motion to dismiss.

At trial, the following facts were adduced. On March 28,

1992, at approximately 5 p.m., the defendant, who was 15 years

old, and his friend, Samuel Rios, were driving around the area of

Cicero and Parker, in Chicago, Illinois, in a stolen gold, four-

door Oldsmobile Cutlass Supreme (Oldsmobile). The defendant and

Rios were part of a street gang called the Spanish Cobras, and

they were looking for a member of the Latin Kings street gang in

order to retaliate for a shooting that had targeted the Spanish

Cobras a few days earlier. Initially, the defendant was driving

the Oldsmobile and Rios was in the front-passenger seat; however,

at some point the two switched places. A shotgun was under the

front seat. The defendant and Rios saw the victim, Roman, and

believed he was a Latin King. The defendant flashed Roman a

Latin King's hand signal, and Roman flashed a signal back.

Believing that Roman returned the hand signal because he was a

member of the Latin Kings, the defendant grabbed the shotgun and

fired one shot at Roman's head.

Rick Hernandez, a car salesman working at a car lot on the

west side of Cicero and Parker, testified that at around 5 p.m.

on March 28, 1992, he heard what he believed to be a car

backfire. Hernandez looked across the street and saw a man,

Roman, fall to the ground. Hernandez also saw a gold Oldsmobile

with two males wearing black hoodies speed away from the scene.

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Hernandez described the driver as a "darker-skinned Hispanic

guy," and the passenger as a "little bit lighter Hispanic."

Although Hernandez did not get the Oldsmobile's license plate, he

noted that the car had unusual rally wheels.

One of Hernandez's employees called the police, and

Hernandez ran across the street to the victim. Chicago police

detective Mark Flynn and Chicago police officer Leon Putyrski

were patrolling in the area and were the first to arrive at the

scene. Detective Flynn saw Roman lying on the sidewalk and noted

a gunshot wound to the back of Roman's head. Detective Flynn

contacted Chicago firefighters Robert Cordt and Rich Vale, who

arrived at approximately 5:10 p.m. Firefighter Cordt found that

Roman had suffered a gunshot wound to the back of the head, was

unresponsive, without a pulse, and was not breathing. Roman was

stabilized and transported to Advocate Illinois Masonic Medical

Center where he remained for four months before being transferred

to a long-term care facility.

Chicago police lieutenant Anthony Riccio was assigned to

conduct the investigation. On March 30, 1992, Lieutenant Riccio

reviewed the police reports and began searching for the

Oldsmobile that had been seen fleeing the scene. Later that same

day, Lieutenant Riccio located the Oldsmobile and discovered that

it had been reported stolen 7 to 10 days earlier. Lieutenant

Riccio contacted Hernandez, who positively identified the

Oldsmobile as the car involved in the shooting.

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Lieutenant Riccio also had the names of two possible

suspects, the defendant and Rios. On April 22, 1992, Lieutenant

Riccio went to the home of the defendant and the home of Rios and

transported both of them to the Area 5 police station. At

approximately 2 p.m., after the defendant had been read his

rights, Lieutenant Riccio had a conversation with him in the

presence of Youth Officer Joanne Hammermeister. The defendant

incriminated himself and admitted to shooting Roman in the back

of the head.

At approximately 6 p.m., Assistant State's Attorney (ASA)

Thomas Torcasso advised the defendant of his rights. The

defendant indicated he wanted to make a statement. ASA Torcasso

took the defendant's statement in the presence of Youth Officer

Hammermeister. In the statement, the defendant again admitted to

shooting Roman in retaliation for an earlier gang shooting. ASA

Torcasso allowed the defendant to review and correct the

statement. ASA Torcasso, Youth Officer Hammermeister, Lieutenant

Riccio, and the defendant each signed every page of the

statement.

The defendant's statement, which was published to the jury,

begins with his acknowledgment that he understood that he had the

right to talk to a lawyer and have an attorney present during

questioning. The defendant also acknowledged that he understood

that if he could not afford a lawyer, one would be appointed by

the trial court. The defendant then reaffirmed that he wished to

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give a statement. The defendant's statement contained the

following information. On March 28, 1992, he was a member of the

Spanish Cobra street gang, and at around 2:30 p.m. on that day,

he met Rios and others to discuss shooting a Latin King or Latin

Brother in retaliation for a shooting in which the Spanish Cobras

were targeted. Rios was going to do the shooting and the

defendant was going to drive; Rios had a sawed-off shotgun which

he placed in a book bag. Rios led the defendant to a brown four-

door Cutlass Oldsmobile. The defendant began driving, with Rios

in the passenger seat and the gun on the floor. A short time

later, the defendant and Rios switched places because Rios did

not think he could handle the kick from the gun. After driving

around for a while, the defendant and Rios drove up to the

intersection of Parker and Cicero, where a man had just stepped

off the sidewalk to cross the street in front of their car. The

defendant flashed the Latin King sign to see if the man would

return the gesture; when he did, the defendant raised the shotgun

and fired one shot. The defendant aimed for the man's back, but

did not know where he shot the man. The defendant and Rios then

sped away from the scene.

The State also called juvenile probation officer Mary

Patoff. Officer Patoff had conducted an interview in 1993 with

the defendant for a court-ordered presentence social

investigation report to be used in the defendant's dispositional

hearing. Officer Patoff testified that she questioned the

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defendant alone in order to get his version of events. Officer

Patoff testified that she was also receptive to hearing anything

else the defendant might want to tell her. Officer Patoff

testified that the defendant told her he was "in full agreement"

with the "findings from Juvenile Court," or the "findings and

charges that were brought into Juvenile Court." Officer Patoff

also recounted what the defendant told her regarding the day of

Roman's shooting. On cross-examination, Officer Patoff testified

that the defendant told her that he regretted what he had done;

Officer Patoff also testified that the defendant said he was

sorry and showed remorse. Officer Patoff testified that the

defendant knew Roman was in a nursing home, and, he told Officer

Patoff that he wanted to apologize to the victim and the victim's

family, as the defendant realized that his actions had ruined

both their lives. Officer Patoff also testified:

"He stated that he wished he could change the

situation, that it was very difficult for him

to face. He also felt that he ruined his

life, he told [me] that he realized he would

be held accountable for his actions."

Rios testified and substantially corroborated the statements

attributed to the defendant. Rios testified that his testimony

was not part of any agreement or deal. On cross-examination,

Rios testified that he and the defendant had been to juvenile

court and were convicted; however, the State objected to the jury

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learning that the defendant had been acquitted of attempt murder

in the juvenile proceeding.

Cathy Roman, the victim's sister, testified that she saw her

brother on the morning of the shooting and did not see him again

until he was in the hospital's intensive-care unit. Cathy Roman

also told jurors that her brother never regained consciousness

after the shooting and was housed in a nursing home for 8 2

years until his death.

Dr. Michael Grendon, the victim's treating physician from

August 10, 1992, until his death, testified that Roman was in a

chronic vegetative state from the time he was admitted to the

nursing home until his death. Dr. Grendon also described Roman

on good and bad days.

At the close of evidence and arguments, the jury was given

instructions corresponding to the two counts of the indictment

(Illinois Pattern Jury Instructions, Criminal, Nos. 7.01, 7.02 th (4 . ed. 2000)), and returned a general verdict finding the defendant guilty of first degree murder. On April 21, 2003, the

trial court sentenced the defendant to 25 years in DOC, with

credit for time served as a juvenile. The trial court's

sentencing order reflects that the sentence was entered on the

intentional murder count of the indictment. This appeal

followed.

ANALYSIS

I. Collateral Estoppel

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The first issue we must consider on appeal is whether the

State was collaterally estopped from charging the defendant with

two counts of first degree murder: intentional murder (720 ILCS

5/9-1(a)(1) (West 2000)), and strong probability murder (720 ILCS

5/9-1(a)(2) (West 2000)).

A. Standard of Review

The parties disagree as to the correct standard of review.

The defendant asserts that the issue before us is one of law and

should be reviewed de novo. Conversely, the State urges that the

defendant "challenges his conviction based upon the sufficiency

of the evidence" and the relevant standard is "whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Contrary to the State's assertion, the defendant is not

challenging his conviction based on the sufficiency of the

evidence. Instead, the defendant asserts that the State was

foreclosed from charging him with first degree murder as he was

previously acquitted of attempt murder in the juvenile

proceedings. As this presents a question of law, our review is

de novo. People v. Mitchell, 353 Ill. App. 3d 838, 844, 819

N.E.2d 1252 (2004) (the appellate court reviews pure questions of

law under a de novo standard of review).

B. Motion to Dismiss

Collateral estoppel is a component of double jeopardy.

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People v. Carrillo, 164 Ill. 2d 144, 151, 646 N.E.2d 582 (1995). The doctrine of collateral estoppel provides that when a valid,

final judgment determines an issue of ultimate fact, the same

parties cannot litigate the issue in any future lawsuit. People

v. Jones, 301 Ill. App. 3d 608, 609-10, 703 N.E.2d 994 (1998).

Collateral estoppel applies when (1) the issue decided in the

prior adjudication is identical to the one presented in the

instant suit, (2) there was a judgment on the merits in the prior

adjudication, and (3) the party against whom estoppel is asserted

was a party, or in privity with a party, to the prior

adjudication. People v. Krstic, 292 Ill. App. 3d 720, 723, 686 N.E.2d 692 (1997), citing Talarico v. Dunlap, 177 Ill. 2d 185,

191, 685 N.E.2d 325 (1997).

Sections 9-1(a)(1) and (a)(2) present multiple theories that

constitute the single offense of murder, and each of these

theories has its own mental state. People v. Stalions, 139 Ill.

App. 3d 1033, 1036, 488 N.E.2d 297 (1986). In this case,

following the death of Roman, the State charged the defendant

with two counts of murder. Count I alleged murder as defined in

section 9-1(a)(1), specifically that on March 28, 1992, the

defendant "intentionally or knowingly shot and killed Jose Roman

with a firearm." See 720 ILCS 5/9-1(a)(1) (West 2000). Section

9-1(a)(1) is known as "intentional murder." See People v. Davis,

213 Ill. 2d 459, 471, 821 N.E.2d 1154 (2004). Count II of the

indictment alleged murder based on section 9-1(a)(2),

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specifically that the defendant shot and killed Roman with a

firearm, "knowing that such shooting with a firearm created a

strong probability of death or great bodily harm" to Roman. 720

ILCS 5/9-1(a)(2) (West 2000). Section 9-1(a)(2) is known as

"strong probability murder." People v. Villarreal, 198 Ill. 2d 209, 213, 761 N.E.2d 1175 (2001). The drafters of section 9-1

explained that "[s]ubsection (a)(1) is intended to define the two

most culpable types of conduct," while "[s]ubsection (a)(2) is

intended to define the conduct which, lacking actual intent to

kill or do great bodily harm or knowledge that such a result will

occur, involves knowledge of the probability that the offender's

acts will cause death or great bodily harm." 720 ILCS Ann. 5/9-1,

Committee Comments-1961, at 16-17 (Smith-Hurd 2002); Stalions, 139 Ill. App. 3d at 1036. Moreover, the intent to do great

bodily harm that results in death does not refer to the same

mental state as that of the intent to kill. Stalions, 139 Ill.

App. 3d at 1036.

Prior to the defendant's trial, defense counsel filed a

motion to dismiss both counts of murder on the basis of

collateral estoppel. Defense counsel argued that the defendant's

acquittal of attempt murder in his juvenile proceeding barred the

State's murder prosecution. Defense counsel relied on Carrillo, 164 Ill. 2d 144, 646 N.E.2d 582, and particularly the facts

surrounding the defendant Dolly Stacey.

In Carrillo, Dolly Stacey solicited Eduardo Carrillo to

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break into the basement apartment of her tenant, Helen Serafin,

in order to frighten Serafin into vacating the premises.

Carrillo, 164 Ill. 2d at 147. Carrillo and several associates

broke into Serafin's apartment and proceeded to rob and shoot

her. Carrillo, 164 Ill. 2d at 147. Serafin was paralyzed,

languished for nine years, and ultimately died. Carrillo, 164

Ill. 2d at 146. Shortly after the break-in and shooting, Stacey

and Carrillo were charged with attempt murder, home invasion,

armed robbery, burglary, aggravated battery, and armed violence.

Carrillo, 164 Ill. 2d at 147. Stacey was convicted of home

invasion and burglary on an accountability theory; however, she

was acquitted of attempt murder, armed robbery, aggravated

battery, and armed violence. Carrillo, 164 Ill. 2d at 147.

Carrillo pled guilty to all charges. Carrillo, 164 Ill. 2d at

147.

Upon Serafin's death, the State charged Carrillo and Stacey

with: (1) intentionally and knowingly shooting and killing

Serafin, (2) knowing that such a shooting created a strong

probability of death or great bodily harm, and (3) felony murder

based on home invasion, burglary, and armed robbery. Carrillo, 164 Ill. 2d at 146. The defendants moved to dismiss the

indictments based on double jeopardy. The trial court denied the

defendants' motions; however, the appellate court considered the

principles of double jeopardy and collateral estoppel and

reversed the trial court, barring all indictments except for that

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of murder based upon a strong probability of death or great

bodily harm. Carrillo, 164 Ill. 2d at 146. For our purpose, it is only necessary to recount our supreme

court's findings as to Stacey's claims based on collateral

estoppel. Our supreme court found that collateral estoppel

barred Stacey's prosecution for murder based upon the intent to

kill or cause great bodily harm, as well as felony murder based

upon armed robbery, because she had been acquitted of attempt

murder, aggravated battery, and armed robbery. Based on the

three acquittals, it was established that reasonable doubt

existed as to the intent to kill (attempt murder), intent to

cause great bodily harm (aggravated battery), and armed robbery

(felony murder). Carrillo, 164 Ill. 2d at 152. "Consequently,

we conclude that the murder charges based upon intent to kill or

do great bodily harm are foreclosed as against Stacey based upon

principles of collateral estoppel." Carrillo, 164 Ill. 2d at

152.

Our supreme court did not find that the State was

collaterally estopped from charging Stacey with first degree

murder that alleged a mental state other than the mental states

present in attempt murder or aggravated battery. Specifically,

our supreme court held:

"As regards Stacey, we hold that she may

be charged with *** murder based upon ***

the knowledge that her actions created a

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strong possibility of death or great bodily

harm. We further find, however, that she may

not be charged with *** murder based upon ***

the intent to kill or cause great bodily

harm." Carrillo, 164 Ill. 2d at 152. The State seeks to distinguish Carrillo by contending that

the defendant in this case was found guilty of aggravated

battery. The State correctly concedes that the defendant's

"acquittal for attempt murder was tantamount to a determination

that there was reasonable doubt that defendant had the requisite

intent to kill the victim and, therefore, foreclosed the

possibility of subsequently prosecuting defendant for intentional

murder." The State asserts, however, that the defendant's

argument would require this court to ignore the principles of

statutory construction. The State contends that the defendant's

argument is "fatally flawed" because it disregards the plain and

ordinary meaning of the first degree murder statute, which states

that a defendant commits first degree murder pursuant to section

9-1(a)(1) where "he either intends to kill or [intends to] do

great bodily harm to that individual." (Emphasis in original.)

720 ILCS 5/9-1(a)(1) (West 2000). The State goes on:

"[T]he People have no quarrel with the legal

premise that a defendant's earlier acquittals for attempt murder foreclose any possibility

that the defendant could be prosecuted under

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a theory of intentional murder based on the

'intent to kill.' *** Here, defendant was

acquitted of attempt murder yet, found guilty

of aggravated battery. Therefore, the People

*** maintain that an acquittal for attempt

murder does not foreclose the possibility

that defendant can be prosecuted under a

theory of intentional murder based on 'intent

to do great bodily harm' where defendant was

previously convicted of aggravated battery

arising out of the same conduct."

The State's argument is a convincing one, but inapplicable

to the defendant at bar because the State did not charge the

defendant with intentional murder based on an "intent to do great

bodily harm." Instead, count I of the State's indictment charges

that the defendant "without lawful justification, intentionally

or knowingly shot and killed Jose Roman with a firearm." See 720

ILCS 5/9-(a)(1) (West 2000). Count I included as an element the

specific intent to kill with which he was charged in committing

the attempt murder in the juvenile proceeding. "The offense of

attempt murder requires the mental state of specific intent to

commit murder, to kill someone." People v. Jones, 81 Ill. 2d 1, 8, 405 N.E.2d 343 (1979). Section 8-4 clearly sets out, "A

person commits an attempt when, with intent to commit a specific

offense, he does any act which constitutes a substantial step

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toward the commission of that offense." 720 ILCS 5/8-4(a) (West

2000). As the defendant was acquitted of attempt murder, the

intent element required for attempt murder cannot support the

first count of the State's indictment charging the defendant with

"intentional murder." As such, the first degree murder charge

based on an "intent to kill" is foreclosed by Carrillo. As in Carrillo, the State in this case was not barred from

charging the defendant with first degree murder based on the

defendant's shooting of the victim as stated in the indictment,

"knowing that such shooting with a firearm created a strong

probability of death or great bodily harm." See Carrillo, 164 Ill. 2d at 152; 720 ILCS 5/9-1(a)(2) (West 2000). However,

because the defendant was acquitted of attempt murder, there was

no basis for the intentional murder count of the State's

indictment. As such, the State erred in so charging the

defendant. In denying the defendant's motion to dismiss the

murder charges, the trial court distinguished Carrillo from the facts of the instant case and stated, "[a]ttempt murder is a

specific intent crime, first degree murder is not." The trial

court's statement was only half right. First degree murder is

generally not a specific intent crime, except when intent is an

element of the offense. As Carrillo precluded the State from

prosecuting the defendant on the intentional murder charge, the

trial court erred in refusing to dismiss the first count of the

State's indictment.

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C. "One Good Count" Rule

Although we have determined that the State's charge relating

to "strong probability murder" was not collaterally barred by the

defendant's acquittal of attempt murder, we must address whether

the trial error in instructing the jury on intentional murder

tainted the jury's general verdict of guilt. The defendant

argues that because the State presented a theory of intentional

murder, and the jury was given an instruction regarding that

count of the defendant's indictment, there is no way to discern

whether the jury based its general finding of guilt on the

defective intentional murder count of the indictment or on the

count of strong probability murder.

While acknowledging the "one good count" rule established in

People v. Lymore, 25 Ill. 2d 305, 185 N.E.2d 158 (1962), may be a basis to affirm a general finding of guilt where proof is

sufficient on the good count in an indictment, the defendant

contends that "the 'one good count' rule [does not apply] to

cases where a general verdict of guilt was tainted by a legally deficient count." (Emphasis in original.) As support for his

position, the defendant quotes a passage from our supreme court

in People v. Griffin, 178 Ill. 2d 65, 83, 687 N.E.2d 820 (1997),

quoting People v. Griffin, 247 Ill. App. 3d 1, 16 (1993):

"'After [Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d

371, 112 S. Ct. 466 (1991)], then, a general guilty verdict based

on an instruction which includes different methods of committing

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the same offense in the disjunctive is ground for reversal only

where one alternative is legally defective ***.'"

Although there is no disputing that statement of law, its

application to this case is the issue. In reference to a

"legally defective" alternative to committing the same offense,

our supreme court in Griffin limited the application of "legally defective" to where the alternative method "'fails to correctly

state the law, and not where the flawed alternative is factually

inadequate, i.e., where the evidence is insufficient to sustain that count.'" Griffin, 178 Ill. 2d at 83-84, quoting People v.

Griffin, 247 Ill. App. 3d 1, 16, 616 N.E.2d 1242 (1993). No

error that the jury was misinstructed as to the law on

intentional murder has been urged here; nor did such an error

occur. The intentional murder instruction was a proper statement

of Illinois law; it was simply foreclosed by the previous finding

of not guilty of attempt murder. Moreover, the previous finding

of not guilty of attempt murder was an evidentiary-based finding

in the juvenile proceeding that reasonable doubt existed as to

the defendant's intent to kill; that is, the evidence was

insufficient to sustain that charge. The error in instructing

the jury on intentional murder in this case was not based on a

legally defective alternative method of committing first degree

murder, but rather on a factually inadequate alternative.

Accordingly, contrary to the defendant's assertion, this is not a

case "where a general verdict of guilt was tainted by a legally

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deficient count." As such, we find the defendant's conviction

based on the charge of strong probability murder must be upheld

because the jury's general verdict supports count II of the

indictment as the evidence presented in the case was more than

sufficient to support the jury's finding of guilt. Where a

general verdict is "returned, the effect is that the defendant is

guilty as charged in each count to which the proof is

applicable." People v. Cardona, 158 Ill. 2d 403, 411, 634 N.E.2d 720 (1994).

In light of the different mental states involved in

intentional murder and strong probability murder, a remand is in

order to allow the trial court to determine whether a lesser

sentence should be imposed on count II of the indictment. See

Cardona, 158 Ill. 2d at 412, 634 N.E.2d 720 (1994) ("A killing

that occurs when acts are performed with the intent to kill or to

do great bodily harm involves a more culpable mental state than

does either a killing that occurs when acts are performed with

the knowledge that they create a strong probability of death or

great bodily harm or a killing that occurs in the course of a

felony. [Citation]. Where charges of intentional, knowing, and

felony murder have been proved, intentional murder is deemed to

be the most serious offense").

II. Fifth Amendment

The defendant next contends that his fifth amendment right

against self-incrimination was violated because Officer Patoff's

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testimony was admitted at trial as evidence that he murdered

Roman. As previously stated, Officer Patoff interviewed the

defendant when he was a juvenile, after he was found delinquent,

and in anticipation of his dispositional hearing. The defendant

specifically maintains that his fifth amendment privilege against

self-incrimination was violated because he was not warned of his

right to remain silent before his interview with Officer Patoff.

The defendant concedes that he has forfeited this argument as he

failed to raise it during trial. However, the defendant

emphasizes that he raised this issue in his posttrial motion and

urges us to consider the merits of his argument. We elect to do

so.

The fifth amendment, made applicable to the states through

the fourteenth amendment, commands that "[n]o person *** shall be

compelled in any criminal case to be a witness against himself."

U.S. Const., amends. V, XIV. In support of his position, the

defendant analogizes the facts of this case to those in Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866

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1 (1981). In Estelle, a death sentence was overturned because a

defendant's inculpatory statements, made during a court-ordered

psychiatric inquiry to determine the defendant's fitness to stand

trial, were also subsequently used during sentencing to establish 1 We note that although Estelle dealt with the defendant's

fifth amendment privilege against self-incrimination, the Estelle

Court also discussed the defendant's sixth amendment right to

counsel and found that that right had also been abridged. As no

such claim is made by the defendant in this case, we need not

discuss it.

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the defendant's future dangerousness. Estelle, 451 U.S. at 469 68 L.Ed 2d at 373, 101 S. Ct. at 1876. The defendant in Estelle

was indicted for murder arising from his participation in the

armed robbery of a grocery store during which the clerk was

fatally shot by the defendant's accomplice. The State of Texas

announced that it would seek the death penalty; thereafter, the

trial judge, as was his common practice in death penalty cases,

ordered the defendant to undergo a psychiatric evaluation to

determine the defendant's competency to stand trial. Dr. James

P. Grigson interviewed the defendant in jail for approximately 90

minutes and concluded that he was competent. The defendant was

subsequently found guilty. Estelle, 451 U.S. at 456-57, 68 L. Ed. 2d at 365, 101 S. Ct. at 1870.

In Texas, capital cases are bifurcated into guilt and

penalty phases. At the penalty phase, if the jury affirmatively

answers three questions on which the State has the burden of

proof beyond a reasonable doubt, the judge must impose the death

penalty. One of the critical questions for the jury is:

"'whether there is a probability that the defendant would commit

criminal acts of violence that would constitute a continuing

threat to society.'" Estelle, 451 U.S. at 457-58, 68 L. Ed. 2d at 366, 101, S. Ct. at 1870, quoting Tex. Code Crim. Proc. Ann'

art. 37.071(b)(2) (Vernon Supp. 1980).

At the commencement of the penalty phase of the defendant's

23 1-03-1410

trial, defense counsel called three lay witnesses and the State

called only Dr. Grigson. Before trial, defense counsel had

obtained an order requiring the State to disclose the witnesses

it planned to use at both the guilt and penalty stages of the

defendant's trial. As Dr. Grigson's name was not on the witness

list, defense counsel objected to his being called and made a

motion to bar his testimony. The trial court denied the

defendant's motion. Dr. Grigson then testified that the

defendant (1) "'is a very severe sociopath'"; (2) "'will continue

his previous behavior'"; (3) has a sociopathic condition which

will "'only get worse'"; (4) has no "'regard for another human

being's property or for their life, regardless of who it may

be'"; (5) that there is "'no treatment, no medicine ... that in

any way at all modifies or changes this behavior'"; (6) that he

"'is going to go ahead and commit other similar *** criminal acts

if given the opportunity to do so'"; and (7) that he "'has no

remorse or sorrow for what he has done.'" Estelle, 451 U.S. at 459-60, 68 L. Ed. 2d at 367, 101 S. Ct. at 1871. Dr. Grigson's

testimony was based on the examination the trial court ordered to

determine the defendant's fitness to stand trial. Following the

presentation of evidence, the jury answered the three questions

in the affirmative and the trial court sentenced the defendant to

death. Estelle, 451 U.S. at 460, 68 L. Ed. 2d at 367, 101 S. Ct.

at 1871.

The U.S. Supreme Court first considered whether the

24 1-03-1410

admission of Dr. Grigson's testimony at the penalty phase of the

defendant's trial violated the defendant's fifth amendment

privilege against compelled self-incrimination because the

defendant was not advised before the pretrial psychiatric

examination that he had a right to remain silent and that any

statement he made could be used against him at a sentencing

proceeding. Estelle, 451 U.S. , at 461, 68 L. Ed. 2d at 368, 101 S. Ct. at 1872.

The Supreme Court began its analysis by determining that

there was no basis to distinguish between the guilt and penalty

phases of the defendant's capital murder trial; "the State is not

relieved of the obligation to observe fundamental constitutional

guarantees." Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101 S. Ct. at 1873. The Court continued, "[a]ny effort by the State

to compel [the defendant] to testify against his will at the

sentencing hearing clearly would contravene the Fifth Amendment.

Yet the State's attempt to establish respondent's future

dangerousness by relying on the unwarned statements he made to

Dr. Grigson similarly infringes on Fifth Amendment values."

Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101 S. Ct. at 1873. The Estelle Court then recounted that the trial court had,

on its own motion, ordered a psychiatric examination "for the

limited, neutral purpose of determining [the defendant's]

competency to stand trial," but the results of the examination

were used for a much broader objective. "Consequently, the

25 1-03-1410

interview with Dr. Grigson cannot be characterized as a routine

competency examination *** if the application of Dr. Grigson's

findings had been confined to serving that function, no Fifth

Amendment issue would have arisen." Estelle, 451 U.S. at 465, 68 L. Ed. 2d at 369, 101 S. Ct. at 1874.

The Estelle Court also noted that the defendant's future

dangerousness was a critical issue at sentencing, and it had to

be proven by the State beyond a reasonable doubt. The Estelle court commented that to meet its burden, the State presented only

one witness whose testimony was based on the defendant's own

statements, "unwittingly made without an awareness that he was

assisting the State's efforts to obtain the death penalty."

Estelle, 451 U.S. at 466, 68 L. Ed. 2d at 371, 101 S. Ct. at

1875.

The Supreme Court also discussed that because Dr. Grigson's

examination of the defendant took place while the defendant was

in custody, the defendant should have been given Miranda warnings. Estelle, 451 U.S. at 466-67, 68 L. Ed. 2d at 371 S.

Ct. at 1875. "That respondent was questioned by a psychiatrist

*** is immaterial. When Dr. Grigson went beyond simply reporting

to the court on the issue of competence and testified for the

prosecution at the penalty phase on the crucial issue of [the

defendant's] future dangerousness, his role changed and became

essentially like that of an agent of the State recounting

unwarned statements made in a postarrest custodial setting."

26 1-03-1410

Estelle, 451 U.S. at 467, 68 L. Ed. 2d at 372, 101 S. Ct. at 1875.

The Supreme Court concluded its fifth amendment analysis by

noting that although volunteered statements are not barred by the

fifth amendment, under Miranda the defendant's statements to Dr.

Grigson were not given freely or voluntarily without any

compelling influences and, as such, could not be used unless the

defendant had been apprised of his rights and had knowingly

decided to waive them. Estelle, 451 U.S. at 469, 68 L. Ed. 2d at 373, 101 S. Ct. at 1876.

The Illinois Appellate Court has previously addressed

similar fifth amendment arguments in separate cases. In each

case, the defendant argued that his privilege against self-

incrimination was violated when statements made at presentencing

interviews were introduced at the defendant's sentencing hearing.

In People v. Bachman, 127 Ill. App. 3d 179, 184-85, 468 N.E.2d

817 (1984), the Second District concluded that Miranda warnings were not required in connection with the defendant's submission

to a routine and court authorized presentence interview. A

similar finding was reached in People v. Corrigan, 129 Ill. App.

3d 787, 795, 473 N.E.2d 140 (1985), where the Fourth District

found that "Miranda warnings are not required when a defendant is

interviewed in connection with a routine presentence report."

We distinguish the facts of the case sub judice from Bachman

and Corrigan because each defendant in those cases made the

27 1-03-1410

incriminating statements during routine presentence interviews in

anticipation of sentencing in noncapital cases. We find the

facts of this case to be more similar to Estelle. Here, the

defendant's statements to Officer Patoff were made in

anticipation of Officer Patoff's preparation of a routine social

investigation report for the juvenile court, which is as far as

the holdings in Bachman and Corrigan reach; however, the

defendant's statements were then used at his trial for Roman's

murder where the State must observe "fundamental constitutional

guarantees" which bar "[a]ny effort by the State to compel [the

defendant] to testify against his will." Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101, S. Ct. at 1873.

The defendant's statements, here, were taken by Officer

Patoff for the equivalent of a presentence investigation report.

As the U.S. Supreme Court similarly noted in Estelle, if Officer

Patoff's report had been confined to serving that function, no

fifth amendment issue would have arisen. Estelle, 451 U.S. at 465, 68 L. Ed. 2d at 370, 101 S. Ct. at 1874; A social

investigation report is mandated in the State of Illinois and

cannot be waived. In re D.B., 303 Ill. App. 3d 412, 422, 708

N.E.2d 806 (1999). A social investigation report is a useful

tool to the juvenile court because a juvenile court must have

current social information about a juvenile as provided in the

statute before making the important life-affecting decision to

commit a juvenile to the Department of Corrections. D.B., 303

28 1-03-1410

Ill. App. 3d at 422. However, the defendant's statements were

used for more than a disposition recommendation, without the

defendant being made aware of that possibility. The fifth

amendment privilege, therefore, is directly involved here because

the State used as evidence against the defendant the substance of

his disclosures to Officer Patoff during the social investigation

interview. Estelle, 451 U.S. at 465, 68 L. Ed. 2d at 370, 101 S. Ct. at 1874.

Because the safeguards of the fifth amendment privilege were

not afforded the defendant, we find that the trial court erred in

permitting the State to introduce Officer Patoff's testimony at

the defendant's murder trial. The State urges that if we find a

fifth amendment violation, the admission of Officer Patoff's

testimony amounts to harmless error in light of the overwhelming

evidence against the defendant.

III. Harmless Error Beyond A Reasonable Doubt

A constitutional error does not automatically require

reversal of a conviction. People v. Patterson, 217 Ill. 2d 407, 423, 841 N.E.2d 889 (2005), citing Arizona v. Fulminante, 499

U.S. 279, 306, 113 L. Ed. 2d 302, 329, 111 S. Ct. 1246, 1263

(1991). The United States Supreme Court has applied harmless-

error analysis to a wide range of errors and has recognized that

most constitutional errors are trial errors, that is, "'error[s]

which occurred during the presentation of the case to the jury,

and which may therefore be quantitatively assessed in the context

29 1-03-1410

of other evidence presented in order to determine whether its

admission was harmless beyond a reasonable doubt.'" Patterson, 217 Ill. 2d at 424, quoting Fulminante, 499 U.S. at 307-08, 113

L. Ed. 2d at 330, 111 S. Ct. at 1264. We find that the

constitutional error in this case was a "trial error" and that

the error is subject to a harmless-error analysis. The issue,

therefore, is whether the fifth amendment violation in the case

at bar was harmless beyond a reasonable doubt.

In determining whether a constitutional error is harmless,

the test to be applied is whether it appears beyond a reasonable

doubt that the error at issue did not contribute to the verdict

obtained. People v. Patterson, 217 Ill. 2d 407, 428, 841 N.E.2d 889 (2005).

"[T]his court [has] listed three different

approaches for measuring error under this

harmless-constitutional-error test: (1)

focusing on the error to determine whether it

might have contributed to the conviction, (2)

examining the other evidence in the case to

see if overwhelming evidence supports the

conviction, and (3) determining whether the

improperly admitted evidence is merely

cumulative or duplicates properly admitted

evidence." Patterson, 217 Ill. 2d at 428; citing People v. Wilkerson, 87 Ill. 2d 151,

30 1-03-1410

157, 429 N.E.2d 526 (1981).

In applying these approaches to the case at bar to determine

whether the admission of Officer Patoff's testimony was harmless

beyond a reasonable doubt, we find that Officer Patoff's

testimony did not contribute to the defendant's conviction

because it was cumulative and duplicated other evidence properly

admitted at the defendant's murder trial and there was

overwhelming evidence to support the defendant's conviction. In

his reply brief, the defendant argues that "[Officer] Patoff's

testimony amounted to nothing more tha[n] an unwarned confession

attributed to [the defendant], and a 'confession is the most

powerful piece of evidence the State can offer, and its effect on

the jury is incalculable.' [Citation]" We agree that a

confession is powerful evidence when placed before the jury, but

the defendant had given two statements implicating himself in the

shooting of Roman prior to speaking with Officer Patoff and

evidence of these other "confessions" was presented to the jury.

The defendant first gave a statement to Lieutenant Riccio.

At the defendant's murder trial, Lieutenant Riccio testified that

after being given Miranda warnings the defendant incriminated himself and admitted to shooting Roman in the back of the head.

Later, the defendant provided ASA Torcasso with a written

statement. ASA Torcasso testified that he assisted the defendant

in making a written statement in which the defendant admitted

shooting Roman in retaliation for an earlier gang shooting. ASA

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Torcasso added that the defendant's statement was signed by the

defendant, ASA Torcasso, Youth Officer Hammermeister, and

Lieutenant Riccio. Moreover, besides the defendant's statements

to Lieutenant Riccio and ASA Torcasso, the State introduced other

overwhelming evidence, including the testimony of codefendant

Rios, that led to the defendant's conviction. Accordingly, we

find that under the "harmless-constitutional-error test" set out

in Patterson, the erroneous admission of Officer Patoff's testimony to be harmless beyond a reasonable doubt. Patterson,

217 Ill. 2d at 428, 841 N.E.2d 889.

IV. Prosecutorial Misconduct

The defendant's final contention is that he was denied a

fair trial because the State played to the jury's emotions by

presenting irrelevant information about the victim and his

family. The defendant maintains that the State's opening

statement and closing arguments, as well as the testimony of

Hernandez, Officer Flynn, Cathy Roman, and Dr. Grendon, were

prejudicial.

The defendant acknowledges that these claims were not

preserved for appeal because there was neither a trial objection

nor a written posttrial motion as to each. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988) (both an objection at

trial and a written posttrial motion are required to preserve an

issue for appeal). Therefore, the alleged errors are only

reviewable under the plain error exception to the forfeiture

32 1-03-1410

rule. It is well established that plain error will be invoked in

criminal cases only where the evidence is closely balanced or the

error is of such magnitude that the accused was denied a fair

trial. People v. Williams, 192 Ill. 2d 548, 570, 736 N.E.2d 1001 (2000). As we have determined that the evidence is not closely

balanced, the defendant must meet the second prong under plain

error review that he was denied a fair trial because of the

magnitude of the claimed errors. "A reviewing court will grant

relief under the second prong of the plain error rule only if the

error is so fundamental to the integrity of the judicial process

that the trial court could not cure the error by sustaining an

objection or instructing the jury to disregard the error."

People v. Vargas, 174 Ill. 2d 355, 363-64, 673 N.E.2d 1037 (1996). In a plain error analysis, it is the defendant that

bears the burden of persuasion as to prejudice. People v.

Thurow, 203 Ill. 2d 352, 363, 786 N.E.2d 1019 (2003).

Specifically, the defendant contends that "[t]he prosecutor

presented irrelevant argument and testimony about the decedent

and his family, including the fact that the decedent had tears

coming down his eyes when he was discovered lying on the street

immediately after the shooting; that the decedent left behind a

pregnant girlfriend and two children; and that the decedent wore

a diaper because he could not go to the bathroom on his own." To

support his claim that the prosecutor's conduct denied him a fair

trial, the defendant concludes: "The sole purpose of these antics

33 1-03-1410

was to inflame and arouse the passions and emotions of the jurors

by evoking sympathy for the decedent and his family. It is

impossible to determine to what extent these tactics succeeded in

improperly influencing the jury's finding of guilt." The

defendant also asserts these errors regard "a matter of law and

should be reviewed de novo." Finally, he contends that the

errors were "reversible."

We are aware of no authority for de novo review of trial errors in the context of plain error analysis. The only case

cited by the defendant for this proposition, People v. Robinson,

172 Ill. 2d 452, 457, 667 N.E.2d 1305 (1996), concerns "the

construction of a statute" and is thus inapposite. We reject the

defendant's assertion of de novo review of the issue before us.

Regarding the claimed errors being reversible, "all plain errors

are reversible ones, [however,] not all reversible errors are

also 'plain' ***." People v. Keene, 169 Ill. 2d 1, 17, 660

N.E.2d 901 (1995). Thus, the defendant's claim that the alleged

"error in this case is reversible," adds little to the plain

error analysis.

Finally, we have reviewed the alleged errors in the context

of the record, and find none rises to the level of plain error so

as to have deprived the defendant of a fair trial. In other

words, we cannot say that any of the claimed errors were so

fundamental to the integrity of the judicial process and so

prejudicial to the defendant as to warrant relief under this

34 1-03-1410

second prong of the plain error rule. See People v. Carlson, 79 Ill. 2d 564, 577, 404 N.E.2d 233 (1980) (whether or not the

erroneous evidence or remarks were objected to at the trial, a

court of review will grant relief if the trial error is so

prejudicial that real justice has been denied). Accordingly,

there is no basis to excuse the procedural default with respect

to the disputed testimony and remarks; the procedural bar must be

honored. Keene, 169 Ill. 2d at 27-28. CONCLUSION

For the foregoing reasons, we affirm the defendant's

conviction but remand for resentencing.

Affirmed; sentence vacated and cause remanded.

BURKE, and HALL, JJ., concur.