People v. Gutierrez

2019 IL App (3d) 180405

145 N.E.3d 584

438 Ill.Dec. 48

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

v.Ricardo GUTIERREZ, Defendant-Appellant.

Appeal No. 3-18-0405

Appellate Court of Illinois, Third District.

Opinion filed November 15, 2019

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

¶ 1 After a jury trial, defendant, Ricardo Gutierrez, was convicted of first degree murder ( 720 ILCS 5/9-1(a)(1) (West 2006)) and was sentenced to 68 years in prison. On direct appeal, this court found that defendant's arrest was illegal and remanded the case for the trial court to conduct an attenuation hearing to determine if defendant's statements to police were admissible despite the illegal arrest. People v. Gutierrez , 2016 IL App (3d) 130619, ¶ 78, 409 Ill.Dec. 802, 68 N.E.3d 910. The trial court conducted an attenuation hearing, concluded that the statements were admissible, and reinstated defendant's conviction. Defendant appeals, arguing that the trial court erred in (1) finding that defendant's statements to police were sufficiently attenuated from the illegal arrest so as to be admissible at defendant's trial and (2) refusing to allow defendant to call as a witness at trial a codefendant, Gabriela Escutia, who was going to assert her fifth amendment right not to testify, and refusing to admit at trial Escutia's petition for an order of protection against the person who later became the victim of the murder. We agree with defendant's first argument. Because the evidence relative to defendant's second argument will likely change upon remand, we do not rule upon defendant's second argument. Accordingly, we reverse defendant's conviction and remand this case for a new trial with defendant's statements to police suppressed.

¶ 2 I. BACKGROUND

¶ 3 On October 28, 2007, Javier Barrios was shot and killed in a parking lot near the Meijer gas station in Plainfield, Illinois. After police officers identified Barrios as the victim, they ran his information and learned that codefendant, Gabriela Escutia, had an order of protection against him. The police officers sent an exigent circumstances request to the phone company to obtain Escutia's cell phone information and, with the help of Secret Service agents, learned of an alternative billing address for Escutia in Chicago, Illinois. That address turned out to be the address of defendant's residence. Several police officers went to that address during the early morning hours and found Escutia sleeping in bed with defendant. Defendant and Escutia agreed to accompany police to the Plainfield police station to answer questions. Defendant and Escutia were transported to the police station by the police in separate vehicles. Defendant was handcuffed for a short period of time during that transport (due to transportation issues, defendant was initially transported to the Chicago police station and was handcuffed during that portion of the transport).

¶ 4 On the way to the Plainfield police station, Escutia told police that she and defendant had shot Barrios. When defendant arrived at the Plainfield police station, he was placed into an interview room. Defendant later waived his Miranda rights. After being confronted with Escutia's statements, defendant gave oral and written statements incriminating himself in Barrios's murder. The interview was recorded by the police. Defendant gave his statements to police approximately six hours after his arrest.

¶ 5 Defendant and Escutia were subsequently charged with the first degree murder of Barrios. Prior to trial, defendant filed a motion to suppress his statements to police, claiming that the statements were the product of an illegal arrest. After a hearing, the trial court denied the motion.

¶ 6 Defendant's case proceeded to a jury trial. At the conclusion of the trial, the jury found defendant guilty of first degree murder, and defendant was subsequently sentenced to 68 years in prison. On direct appeal, defendant argued that the trial court erred in denying his motion to suppress evidence. Id. ¶ 53. A panel of this court, with one justice dissenting, agreed with defendant and found that defendant had been illegally arrested at his residence prior to being transported to the police station. Id. ¶¶ 57-71. This court then remanded the case for the trial court to hold an attenuation hearing. Id. ¶ 78.

¶ 7 In January 2018, an attenuation hearing was held by the trial court. Neither the State nor defendant presented any additional evidence. After listening to the arguments of the attorneys, the trial court took the case under advisement.

¶ 8 In May 2018, in a separate appeal, a different panel of this court, with one justice dissenting, found that Escutia's statements to the police at the police station were illegally obtained because the police officers deliberately delayed in reading Escutia her Miranda rights so that they could obtain statements from her. People v. Escutia , 2018 IL App (3d) 140509-U, ¶¶ 29-30, 2018 WL 2406376. This court implied in that decision that Escutia was illegally arrested at defendant's residence that morning, along with defendant. Id. ¶ 29. This court found, therefore, that the oral and written statements that Escutia had made at the police station were subject to suppression. Id. ¶¶ 30, 32. This court reversed Escutia's conviction of first degree murder and remanded for a new trial with the statements in question suppressed. Id. ¶ 38.

¶ 9 In July 2018, the trial court resumed the attenuation hearing in the instant case. At the outset of the resumed hearing, the trial court asked the State and defense counsel if there were any new matters of fact or law that should be brought to the trial court's attention. Both attorneys responded that there were not. Neither the State nor defense counsel informed the trial court of this court's decision in the Escutia appeal. The trial court concluded that defendant's statements to police were sufficiently attenuated from defendant's illegal arrest so as to be admissible at defendant's trial and reinstated defendant's conviction of first degree murder. In reaching that conclusion, the trial court found that defendant had been given his Miranda rights at the Plainfield police station prior to making his statements, that there was a "substantially significant" period of time between defendant's illegal arrest and defendant's statements to police, that the incriminating statements Escutia had made to police were a "huge" intervening circumstance, and that the conduct of the police in this case did not rise to "any flagrancy of actual misconduct." After the trial court made its ruling, defendant appealed.

¶ 10 In February 2019, several months after the appeal was filed in this case, Escutia pled guilty in the trial court to second degree murder for the killing of Barrios and was sentenced to 20 years in prison.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant argues that the trial court erred in (1) finding that defendant's statements to police were sufficiently attenuated from his illegal arrest so as to be admissible at defendant's trial and (2) refusing to allow defendant to call Escutia as a witness at trial, where Escutia was going to assert her fifth amendment right not to testify, and refusing to admit at trial Escutia's petition for an order of protection against Barrios (the victim). We rule only upon the first argument because it dictates the outcome of this case and because the evidence relative to the second argument will likely change upon remand.

¶ 13 A. Attenuation of Defendant's Statements from Illegal Arrest

¶ 14 As to the first argument, defendant asserts that a review of the totality of the circumstances and the four case-law factors for attenuation (set forth below) establishes that attenuation was not present in the instant case and that the trial court's ruling was incorrect. Most notably, defendant contends, the police confronting defendant with Escutia's statements could not be used by the State as an intervening circumstance in support of attenuation because Escutia's statements were taken illegally by the police and were tainted. For that reason, defendant asks that we reverse his conviction and that we remand this case for a new trial with defendant's statement to police suppressed. In the alternative, defendant asks that we remand this case for a new attenuation hearing because his attorney was ineffective in failing to inform the trial court that Escutia's statements to police were suppressed by this court on appeal and that they could not be considered by the trial court as an intervening circumstance.

¶ 15 The State argues that the trial court's attenuation ruling was proper and should be upheld. The State asserts that all four of the case law factors weigh in favor of attenuation. In making that assertion, the State contends that a portion of Escutia's statements to police was not suppressed by this court and the police confronting defendant with that portion of the statements could, therefore, be considered as an intervening circumstance in the attenuation analysis. As for defendant's argument in the alternative, the State agrees that defense counsel should have informed the trial court that this court suppressed a portion of Escutia's statements to police on appeal. The State contends, however, that defendant was not prejudiced by defense counsel's failure to inform the trial court because the remaining portion of Escutia's statements could still be considered by the trial court as an intervening circumstance. For all of the reasons set forth, the State asks that we affirm the trial court's finding of attenuation and that we affirm defendant's conviction of first degree murder.

¶ 16 A reviewing court applies a two-part standard of review to a trial court's ruling on a motion to suppress evidence. See Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; People v. Gaytan , 2015 IL 116223, ¶ 18, 392 Ill.Dec....