People v. Matute

2020 IL App (2d) 170786

168 N.E.3d 673

445 Ill.Dec. 798

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

v.Edwin L. MATUTE, Defendant-Appellant.

No. 2-17-0786

Appellate Court of Illinois, Second District.

Opinion filed February 27, 2020

James E. Chadd and Thomas A. Lilien, of State Appellate Defender's Office, of Elgin (Richard Dvorak, of Dvorak Law Offices, LLC, of Willowbrook, of counsel), for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Following a bench trial, defendant, Edwin L. Matute, was found guilty of three counts of predatory criminal sexual assault of a child, J.M., and sentenced to 27 years imprisonment. On appeal, defendant contends that (1) the trial court improperly denied his amended motion to suppress statements, (2) the State failed to prove him guilty of predatory criminal sexual assault beyond a reasonable doubt, and (3) the trial court committed plain error by relying on defendant's lack of remorse in sentencing him to 27 years in prison. We affirm the convictions, vacate the sentence, and remand for resentencing.

¶ 2 I. FACTS

¶ 3 J.M.'s mother, L.M., contacted the police after discovering that defendant had been having sexual intercourse with J.M. L.M. reported that the sexual assaults occurred in her apartment. J.M. was 11 years old at the time of the offenses. Defendant is L.M.'s cousin.

¶ 4 A. Motion to Suppress Statements

¶ 5 Before the trial, defendant filed an amended motion to suppress statements, alleging that he "did not have a full understanding of his Miranda rights" prior to making statements to the police. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The following evidence was presented at the hearing on the motion.

¶ 6 Detective Andy Ulloa testified that on July 23, 2014, he and Detective Tim Ives went to defendant's place of employment. They asked defendant to accompany them to the police station, but they did not tell him what the investigation was about. Defendant agreed to come. On the way, defendant was not handcuffed and was seated in the rear, passenger side of the unmarked vehicle. Ulloa did not threaten defendant, place his hands on defendant, or tell him what he needed to say. Ulloa, who was fluent in Spanish, made small talk with defendant, who did not speak English, but they did not talk about the case.

¶ 7 At the station, defendant was placed in an interview room equipped with audio and video recording equipment, which was activated. Before the interview, Ulloa informed defendant of his Miranda rights by reading them off a form written in Spanish. The form contains defendant's name, date of birth (April 20, 1990), address, and the date and time of the interview. The form also contains a series of statements, which are numbered one through four. Ulloa crossed off each number with a diagonal line after he had read each statement to defendant. After reading the Miranda warnings, Ulloa did not ask defendant to sign the form.

¶ 8 The videotape of the interview was played for the court. The State introduced Exhibit 3, which is the Spanish Miranda rights waiver form that Ulloa stated that he had read to defendant. The State also introduced Exhibit 4, which is a consent form to search defendant's cell phone.

¶ 9 Ulloa stated that the entire interview was conducted in Spanish and that, as part of the investigation, an English translation of the transcript was drafted. Ulloa reviewed the videotape, which was entered into evidence. Ulloa also reviewed the English translation of the transcript, which also was introduced into evidence, and testified that it was a true and accurate copy. The transcript revealed the following colloquy:

"ULLOA: I'm going to explain to you why you're here, but I'm going to read this first. I always read this page with any person that I speak with. I'm going to explain to you everything we're going to do. Okay?

DEFENDANT: Uh-huh.

ULLOA: You have the right to remain silent. Do you understand?

DEFENDANT: Uh-huh.

ULLOA: Do you understand?

DEFENDANT: Yes.

ULLOA: Okay. Anything you say can be used against you in a court of law. Do you understand? You have the right to talk with an attorney before answering any questions or making a statement while we're asking you questions, if you so desire. Do you understand?

DEFENDANT: Uh-huh.

ULLOA: Okay. If you don't have money for an attorney, one will be appointed for you before we ask any questions, or at any time that we're asking questions, if you so desire. Do you understand?

DEFENDANT: Yes, I understand."

¶ 10 Through an interpreter, defendant testified that he had lived in Honduras for 24 years before coming to the United Sates, on January 20, 2014. He had never been arrested and had no contact with the court systems in the United States or in Honduras. Defendant stated that the detectives handcuffed him before he was transported to the police department. Ulloa told defendant that if he cooperated Ulloa would "help" him, although the detective did not tell him how he would help him. Defendant stated that he was never given the opportunity to read the Spanish Miranda waiver form before the questioning. He stated that he was not shown the form and signed only the form permitting the police to take his cell phone. Defendant stated that he did not understand when Ulloa read him his rights, that he did not understand the words, and that he said "yes" only because he was nervous.

¶ 11 On cross-examination, defendant stated that he had attended college for two years but did not graduate. He studied for a career in business administration and could read and write. He did not specify the language in which he could read and write. At one point, defendant stated that in Honduras he had lived with his cousin, who was a police officer. Defendant also conceded that the videotape of the interview accurately depicted his conversation with Ulloa.

¶ 12 The trial court denied the motion to suppress, concluding that Ulloa was credible, and that defendant's testimony was "lacking in veracity." The court found that defendant's behavior, appearance, and engagement with Ulloa demonstrated that he understood that he was waiving his rights.

¶ 13 B. Bench Trial

¶ 14 J.M. testified at trial that she was 14 years old. On July 20, 2014, she was 11 years old and was living with L.M. in a one-bedroom apartment. She identified defendant and stated that on July 20, 2014, he was over 18 years old. On that date, J.M let defendant into the apartment, and they had sexual intercourse while her mother was at Walgreens picking up medication. This occurred on one of the two beds in the bedroom, which J.M. shared with her mother. J.M. did not remember if defendant had used a condom, but she later clarified that defendant had always used a condom during intercourse and that he would flush it down the bathroom toilet.

¶ 15 Defendant left the apartment shortly after and, while he was walking down the stairs from the second-floor apartment, defendant encountered L.M. Defendant explained to L.M. that her boyfriend had asked him to pick up L.M. from the apartment.

L.M. proceeded to enter the apartment and soon afterward discovered a used condom floating in the bathroom toilet.

¶ 16 L.M. took J.M. to Lurie Children's Hospital (Lurie) the following day, where J.M. gave the following handwritten statement: "My cousin put his private part on mine yesterday."

¶ 17 J.M. stated that this was not the first time that she and defendant had sexual intercourse. She described what sexual intercourse meant: "His penis went inside of my vagina." J.M. stated that she had sexual intercourse with defendant about "four or five" other times and that it always took place in the apartment. She recalled that, the first time it happened, defendant placed his penis inside her vagina while they were on a bed in the living room. The next incident took place in the bedroom, on her mother's bed, which made her feel guilty. Another occurrence took place in the living room on her bed, which had been moved to the living room from the bedroom. During this incident, defendant placed his penis in her mouth and her vagina. J.M. continued that she did not want to have sexual intercourse with defendant but that he said that she must, to show him that she loved and cared for him.

¶ 18 During cross-examination, J.M. testified that she used to sleep in the bedroom with her mother, each in their own bed. J.M.'s bed had been moved into the living room when defendant moved into the apartment in the summer of 2014. J.M. slept with her mother while defendant used her bed in the living room. J.M. thought that defendant lived with them for about one month. She did not remember telling her mother that the condom floating in the toilet had been used on only a vibrator. Nor could she remember if she told her mother that she had sexual intercourse with defendant on only two prior occasions. J.M. did remember that she did not tell her mother, a social worker, or anyone at the hospital about having oral sex with defendant.

¶ 19 L.M. identified defendant as her cousin and stated that he had lived in her apartment for about 15 days. On July 20, 2014, she left the apartment to give her boyfriend a ride to a bar. She parked the car behind the apartment because she wanted to "spy." As she headed up the stairs, she encountered defendant while he was walking down the stairs. L.M. questioned defendant about why he was at the apartment. L.M. then entered the apartment, followed by defendant. She asked defendant to explain what was happening. Defendant told L.M. that "nothing happened" and that he loved L.M. "so much." L.M. went to use the toilet and she discovered a condom floating inside the toilet bowl. She collected it and placed it in a bag. Later that night, L.M. asked J.M. about...