People v. Viramontes

2021 IL App (1st) 190665

190 N.E.3d 871

454 Ill.Dec. 889

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

v.Heriberto VIRAMONTES, Defendant-Appellant.

No. 1-19-0665

Appellate Court of Illinois, First District, SIXTH DIVISION.

March 12, 2021

James E. Chadd, Douglas R. Hoff, and Tiffany Boye Green, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and Iris G. Ferosie, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Following a jury trial, defendant Heriberto Viramontes was convicted of multiple felonies, including armed robbery and attempted murder, for striking Stacy Jurich and Natasha McShane with a bat and robbing them. His convictions and sentences were affirmed in People v. Viramontes , 2017 IL App (1st) 142085, 410 Ill.Dec. 221, 69 N.E.3d 446, and the supreme court denied his petition for leave to appeal. Defendant filed three pro se postconviction petitions (hereafter collectively referred to as the "petition"), which the circuit court summarily dismissed. On appeal, defendant contends that the dismissal was error where his petition stated a meritorious claim that he was denied effective assistance of trial counsel. He alleged that counsel failed to utilize the completeness doctrine to admit the entirety of his recorded conversations, which would have given his statements context and supported his theory that he was misidentified as the offender. For the following reasons, we affirm.

¶ 2 I. JURISDICTION

¶ 3 The circuit court dismissed defendant's postconviction petition on May 18, 2018. This court allowed the filing of a late notice of appeal, which defendant filed on April 11, 2019. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 651 (eff. Feb. 6, 2013), governing appeals in postconviction proceedings.

¶ 4 II. BACKGROUND

¶ 5 The following facts, taken in part from Viramontes , 2017 IL App (1st) 142085, 410 Ill.Dec. 221, 69 N.E.3d 446, are relevant to this appeal.

¶ 6 Defendant was charged by indictment with two counts of attempted first degree murder, two counts of armed robbery, one count of armed violence, two counts of aggravated unlawful restraint, eight counts of aggravated battery, two counts of unlawful restraint, four counts of misuse of a credit card, and two counts of use of a credit card by another. Defendant was charged along with codefendant Marcy Cruz. The charges arose out of an incident that occurred on April 23, 2010, in which Natasha McShane and Stacy Jurich were robbed of their purses and other items after being struck on the head with a baseball bat. Prior to trial, Cruz pled guilty to two counts of attempted first degree murder and received a sentence of 22 years’ imprisonment. In exchange for her guilty plea, she agreed to testify against defendant.

¶ 7 At trial, Cruz testified that on April 23, 2010, at around 11:30 p.m., she went to a bar located at Division and Campbell in Chicago with her friend, Honey. Defendant, whom Cruz knew as "Betto," met her at the bar, and they left together in Cruz's grey minivan. After having sex in the van, they drove around the Bucktown neighborhood. Defendant stated, "[l]ook at all these white hoes," and mentioned he wanted to rob one of them. He parked the van and grabbed a bat from the back seat before exiting.

¶ 8 A few minutes later, defendant entered the side sliding door of the van with two purses and the bat. Cruz got into the driver's seat and drove down Milwaukee Avenue. She parked under the "el" after defendant told her to pull over. Defendant stated, "[t]he girls were really pretty and [I] did some bogus s***." He told her to look through the purses and "grab what [she] like[d]." Defendant took the credit cards and Cruz grabbed Dior perfume and makeup. They went to the BP gas station at Augusta and Western, where defendant told Cruz they would pump gas, use the credit card, and then keep the money. At the gas station, defendant exited the car with the credit cards. Cruz saw him throw some of the robbery proceeds into a garbage can.

¶ 9 Cruz identified both herself and defendant in the BP gas station surveillance video. She indicated in the video where defendant instructed her to put in a zip code for the credit card. When they were unable to run the transaction, they left to pick up Kira Lundgren, defendant's pregnant girlfriend. Before Lundgren got into the van, defendant told Cruz not to say anything to her about the robbery.

¶ 10 Cruz, Lundgren, and defendant eventually left a second gas station and went to the west side of Chicago. Defendant parked in an alley, left for an hour, and returned holding some televisions. They dropped Lundgren off at home and then Cruz and defendant went to Cruz's house, where they dropped off the televisions. Defendant told Cruz that if anybody asked, she should say she got the purse from a "crack head." He also gave her a Blackberry cell phone from one of the purses.

¶ 11 Two days later, on April 25, 2010, defendant gave Cruz a "script" to say she got the purse from a "crack head," and he also told her to throw away the cell phone. The next day, the police placed her under arrest, and she gave them her consent to search the van. Cruz identified People's Exhibit 181, a compact disk of a series of five audio telephone calls. She further identified defendant's voice in all the calls. Cruz testified that she pled guilty to two counts of attempted first degree murder in this case in exchange for a 22-year sentence. She admitted that she had bipolar disorder, anxiety, and depression for at least 10 years and that, in April 2010, she was not taking medication for these conditions. She testified that she self-medicated with marijuana.

¶ 12 Cruz acknowledged on cross-examination that she gave the police a different story than what she testified to in court. She admitted telling the police a story defendant wanted her to tell, which involved meeting a young black male named Jamaica who sold her two purses for $80. She also acknowledged that she told police in a second statement that when defendant came back to the van, she did not see him with the bat. She only saw him place something up his sleeve. Cruz never told police or the assistant state's attorneys that she saw defendant throw items in the garbage can at the BP gas station. She admitted to signing a nine-page handwritten statement, which stated that she did not see defendant with a bat.

¶ 13 On redirect examination, Cruz testified that when she went to the second gas station with defendant and Lundgren, she was alone with Lundgren at one point. She then told Lundgren defendant had robbed some girls.

¶ 14 Stacy Jurich testified that in 2010, she was living in the Bucktown neighborhood in Chicago, Illinois. She met Natasha McShane that same year, after McShane moved to Chicago from Ireland. On April 22, 2010, Jurich made plans to meet McShane for dinner after work. They met at 9 p.m. at Cans, a restaurant. McShane had with her a shopping bag from H&M, a purse, and her class materials. Jurich also had a purse. Later, they walked across the street to the Tavern restaurant, where they had cocktails and danced.

¶ 15 They left the Tavern restaurant around 3 a.m. and started walking toward Jurich's house. As they continued north on Damen Avenue, they walked underneath a viaduct and Jurich was hit in the head from behind. She felt excruciating pain, lost her equilibrium, and suddenly tasted metal in her mouth. As she fell forward, Jurich caught herself and looked to her left. She saw McShane being hit in the head with a silver baseball bat. McShane fell down immediately and appeared lifeless on the sidewalk. Jurich was then hit a second time in her neck, and her purse was taken while the robber called her a "stupid b***." After her purse was pulled from her arm, Jurich saw a man in a hoodie running away with her purse and McShane's belongings.

¶ 16 After the assailant fled, Jurich tried to support McShane's head, which was bleeding. She waved down a taxi and begged the driver to call 911. When the paramedics arrived, Jurich was disoriented and felt severe pain and nausea. As she spoke with police, she felt weak as if she would pass out. She could not remember anything after that point, except that she was in an ambulance and then she was in a bright room with people shouting her name. When she woke up in the Intensive Care Unit (ICU), her body felt like it was "filled with sand" and she could not move her left side. The back of Jurich's skull had been cracked open, and it had to be stapled shut at the hospital. She experienced seizures at the hospital, and upon her discharge, she was not permitted to drive. Jurich testified that she has lost her peripheral vision, continues to have balance issues, and experiences excruciating headaches.

¶ 17 A few days after being admitted to the hospital, Jurich spoke with the police and informed them that her initial description of the assailant's race was incorrect, that his skin was medium brown and not black. She also identified the items McShane had in her possession the night of the attack.

¶ 18 Shelia McShane testified that her daughter Natasha had returned to Ireland, and due to her brain injury, she could not travel to Chicago to testify. Mrs. McShane cares for her daughter five days a week and Natasha's father, Liam McShane, cares for her the other two days. On April 24, 2010, she received a telephone call from Chicago that her daughter was in the hospital and they needed to come immediately. At the time, her daughter had only been in Chicago for four months, having arrived in January 2010 to complete her master's degree in Urban Environmental Planning at the University of Illinois Chicago. Mrs. McShane had last seen Natasha in ...