Opinion
No. 1-12-0416
10-14-2014
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRINI MORADO, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 10 CR 06153
Honorable Carol A. Kipperman, Judge Presiding
PRESIDING JUSTICE SIMON delivered the judgment of the court.
Justices Pierce and Liu concurred in the judgment.
ORDER
¶ 1 Held: Defendant's conviction for aggravated kidnapping is affirmed as the State did not make improper comments when questioning witnesses or during closing argument. The trial court properly instructed jurors about the principles set forth in Illinois Supreme Court Rule 431(b). The prison sentence imposed by the trial court was excessive when compared to the nature of the offense, thus, we reduce the length of defendant's sentence.
¶ 2 Following a jury trial, defendant Trini Morado was convicted of the aggravated kidnapping of Dominick Salerno and sentenced to 18 years imprisonment. In this appeal, defendant
argues: (1) that the State made prejudicial comments during trial that warrant a new trial; (2) that the trial court failed to properly admonish the jurors in accordance with Illinois Supreme Court Rule 431(b) thereby denying defendant a fair trial; and (3) that the trial court abused its discretion when imposing defendant's sentence. We affirm defendant's conviction, but reduce his sentence to a term of seven years.
¶ 3 BACKGROUND
¶ 4 The evidence introduced at trial was that, following the burglary of his sister's home, defendant began to search for who was responsible. On the afternoon of February 26, 2010, Defendant and his brother, Steve Morado, contacted Alexander Bolt advising him about the burglary. Bolt, 19 years old at the time, was familiar with the Morado family and knew many of the family members. Later that evening, as Bolt was walking to a friend's house, defendant and Steve Morado pulled beside him in a vehicle and told him to get in the car. Bolt testified that the child locks were engaged so he could not exit the vehicle. Defendant and Steve Morado then questioned Bolt about the robbery. Steve Morado showed Bolt a hammer and defendant told him that they intended to use it on the perpetrator of the burglary when they figured out that person's identity. After five minutes of questioning Bolt, defendant drove to the home that had been burglarized and picked up his nephew, Andre Morado.
¶ 5 The group then focused their inquiry on Jordan Michalak who they believed was responsible for the burglary. However, they did not have Michalak's contact information nor did they know which house belonged to him. Andre Morado contacted a friend, Dominick Salerno, to get information about how to contact Michalak or determine his whereabouts. Salerno was at an arcade with two of his friends, but returned home to meet the Morados.
Upon arriving at Salerno's house, Andre Morado talked to Salerno for a moment at which time defendant grabbed Salerno by the back of the collar and threw him into the vehicle. Defendant and Steve Morado then questioned Salerno and someone put the hammer near Salerno's head and told him that if he had anything to do with the burglary, they were going to use the hammer on him. Defendant and Steve Morado asked Salerno for Michalak's contact information and the location of his residence which Salerno furnished. Defendant threatened Salerno, telling him that if he tipped off Michalak that they were looking for him, defendant would harm Salerno and his mother. Defendant then dropped Salerno back off at his home. Salerno was in the vehicle for about 10 minutes.
¶ 6 Defendant also dropped off Andre Morado at home, but Bolt stayed in the vehicle. Steve Morado used Bolt's cell phone to call Michalak and set up a deal to buy marijuana. After the deal was arranged, defendant, Steve Morado, and Bolt went to Michalak's house. Michalak was 15 years old at the time and was accompanied by his girlfriend and one of his friends. When defendant's vehicle arrived at Michalak's house, defendant recognized the scale that the female was carrying and believed it to be the one that had been stolen from his sister's house. Michalak then approached the vehicle and entered the backseat to effectuate the drug sale. Before Michalak could close the door, someone in the vehicle stated that Michalak "robbed the wrong motherfuckers" and the car took off in reverse out of the driveway. Michalak jumped out of the vehicle, punched the vehicle's window, and began to run. Defendant and Steve Morado chased Michalak and an altercation between Steve Morado and Michalak ensued. Steve Morado had the hammer in his possession. At some point, Defendant entered Michalak's residence and subsequently threw the hammer at one of the windows of the house
and broke it. The police arrived at Michalak's residence and arrested defendant. After searching Michalak's bedroom, the police found items that were taken as evidence of the burglary.
¶ 7 Dominick Salerno testified that he was scared when he was in the vehicle. He did not, however, tell anyone, including his mother or the police, what transpired. Later that same day, Andre Morado and Salerno arranged to have a sleepover and got permission from Salerno's mother. Andre and Salerno walked to Andre's house, the one that had been burglarized, to hang out for the night. During the night, Andre Morado, his mother, and Salerno learned that defendant had been arrested so they went to defendant's house to stay with defendant's mother who requires assistance. Andre Morado's mother drove Salerno home the following morning. The police came to Salerno's house the following day and advised his mother that he had been kidnapped the night before. Salerno denied that any such kidnapping had taken place. Later, Salerno went to the police station and told the officers about the incident.
¶ 8 Defendant was charged with three counts of aggravated kidnapping Alexander Bolt, three counts of aggravated kidnapping Dominick Salerno, three counts of aggravated kidnapping Jordan Michalak, two counts of aggravated battery of Jordan Michalak, aggravated unlawful restraint of Jordan Michalak, aggravated unlawful restraint of Alexander Bolt, aggravated unlawful restraint of Dominick Salerno, unlawful restraint of Jordan Michalak, criminal damage to property, and criminal trespass to a residence. The State proceeded to trial on the aggravated kidnappings of Salerno, Bolt, and Michalak, but dropped all other charges. The jury found defendant not guilty of the aggravated kidnappings of Bolt or Michalak, but found
him guilty of the aggravated kidnapping of Dominick Salerno.
¶ 9 At the sentencing hearing, in aggravation, the State presented the testimony of Officer Lance Handzel, a Chicago police officer. Handzel testified that he arrested defendant's nephew in an unrelated incident. Handzel testified that, early one morning, about six months after he arrested defendant's nephew, defendant followed him in a vehicle as he was driving through the neighborhood. Handzel testified that defendant eventually pulled beside him and that defendant stated to the co-occupant of the vehicle, "do you believe this fucking pig?" Handzel also testified about another incident around the same time where defendant stopped his vehicle in front of Handzel's home and stared at Handzel while Handzel unloaded groceries. Handzel's wife, Nicole Handzel, testified that there was an occasion where she was packing the car for a camping trip and had several children present and she saw defendant a half block away and defendant stared at her for a few minutes.
¶ 10 In mitigation, defendant presented the testimony of four family members and Officer Lawrence Raehl, defendant's next-door neighbor. All of defendant's family members stated that defendant was the primary caregiver for his mother, that he gave up his own life to care for her. The family members each also described the hardship that the family has endured during defendant's incarceration. Andre Morado, defendant's nephew, stated that defendant had been a role model and father figure to him while his actual father was battling lung and brain cancer. Victoria Fonseca, defendant's niece, stated that defendant had been like a father to her. She stated that defendant took care of her and her brother while her mom worked, and that he had sacrificed many things for her. Teresa Morado, defendant's sister, stated that she is a single mother and that defendant helped her raise her kids. Officer Raehl stated that he had been
defendant's neighbor since 2006 and that he had only positive interactions with defendant. Raehl stated that defendant would remove snow for the neighbors, that he trusted defendant to look out for his family, and that he had no concerns regarding his or his family's safety in regard to defendant. Defendant also offered allocution. He stated that he never intended to harm anyone. He stated that he understood and respected the jury's verdict and that he learned a number of valuable lessons.
¶ 11 The trial judge sentenced defendant to 18 years in prison and denied defendant's motion to reconsider the sentence. This appeal followed.
¶ 12 ANALYSIS
¶ 13 Prosecutorial Conduct
¶ 14 Defendant argues that he was denied a fair trial because the prosecutor made improper statements while examining witnesses and during closing argument. Defendant contends that the prosecutor was trying to create the impression that the witnesses and the jury should fear defendant and his family, despite there being no evidence that anyone should be fearful of them. Defendant concludes that the prosecutor's conduct denied him the right to a fair trial and, thus, that he is entitled to a new trial.
¶ 15 The State argues that defendant did not object to the majority of the allegedly prejudicial statements at trial and did not raise any of them in a posttrial motion. A defendant's failure to both object to an alleged error at trial and to raise the issue in a written posttrial motion results in forfeiture of that issue on appeal. People v. Flemming, 2014 IL App (1st) 111925, ¶ 71. Defendant concedes that he did not properly preserve these issues for review. Defendant, however, argues that we should review the issue for plain error. Under the plain error doctrine,
we may consider a non-preserved error where the evidence is closely balanced or the error was so fundamental and of such magnitude as to deny the defendant a fair trial. Id. To prevail on plain error review, the defendant must prove that the error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process. People v. Adams, 2012 IL 111168, ¶ 21.
¶ 16 Defendant's complaints are based on the comments made by the State related to the "intimidation factor" created by the Morado family's presence at the trial. Defendant maintains that the State's indications at trial that the Morado family was there to intimidate witnesses and jurors was prejudicial because it implied that defendant was guilty and was attempting to subvert the judicial process. Defendant also contends that the State's comment during closing argument that the jury should "send a message" by convicting defendant was likewise improper and compounded the error.
¶ 17 We are not persuaded that any of the State's comments affected the fairness of the trial or impugned the integrity of the judicial process. The questions asked and the argument made by the State did not improperly create any impression that the witnesses or the jurors should fear the Morado family or that the jury should find defendant guilty despite a lack of evidence. One of the major issues at trial was the witnesses' familiarity with the Morado family. Defendant has not, and cannot, point to any statement that demonstrates that the State, either expressly or implicitly, indicated that the witnesses or the jury should fear retaliation by defendant or his family.
¶ 18 Additionally, the State's comment that the jury should send a message does not justify reversal. As we have explained on prior occasions, prosecutors should use caution in urging a jury to send a message as it is not the jury's job to send a message. People v. Hayes, 353
Ill.App.3d 578, 585-86 (2004). Here, however, the State tailored its argument to the facts of the case and asked the jury to find defendant guilty based on evidentiary facts adduced at trial. The comments did not have the purpose of interjecting general societal ills into the case nor were the comments of the type that they might incite the jury to convict based on passion or outrage, rather than reason and deliberation. See People v. Johnson, 208 Ill.2d 53, 79 (2003). The trial court instructed the jury that it was only to consider the evidence and that defendant could only be found guilty if there was evidence beyond a reasonable doubt of each element of the crime. Defendant has failed to meet his burden to demonstrate that any comments made by the State deprived him of a fair trial.
¶ 19 Rule 431(b) Violations
¶ 20 Defendant also argues that he was denied the right to a fair trial because the trial court failed to comply with Illinois Supreme Court Rule 431(b). Rule 431 instructs a trial court on how to conduct voir dire and subsection (b) provides:
"The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's decision not to testify when the
defendant objects." Ill. Sup. Ct. R. 431(b).
¶ 21 Defendant contends that the trial court failed to comply with the Rule because the trial judge only asked jurors if they understood the principles announced therein, but not whether the jurors accepted those principles.
¶ 22 Once again, the State argues, and defendant concedes, that he did not object to this alleged error at trial and did not raise it in a posttrial motion. A defendant's failure to both object to an alleged error at trial and to raise the issue in a written posttrial motion results in forfeiture of that issue on appeal. Flemming, 2014 IL App (1st) 111925 at ¶ 71. Defendant contends that we should also review this issue for plain error because without evidence that the jurors firmly accepted the principles announced in the Rule, defendant could not receive a fair trial. The Illinois Supreme Court has explained that Rule 431(b) "requires that the trial court ask potential jurors whether they understand and accept the enumerated principles (emphasis in original)." People v. Wilmington, 2013 IL 112938, ¶ 32.
¶ 23 The trial court's colloquy with the jurors was as follows:
Court: Do you understand and agree that a person accused of a crime is presumed to be innocent of the charges against him? Do you all agree with the presumption of innocence?
(prospective jurors nodding.)
Court: Do you all understand the presumption of innocence stays with the Defendant throughout the trial and is not overcome unless from all of the evidence you feel the State has proved his guilt beyond a reasonable doubt. Do you all accept that?
(prospective jurors nodding.)
Court: Do you all understand that the State has the burden of proving the Defendant's guilt beyond a reasonable doubt and that the Defendant does not have to prove his innocence or present any evidence on his own behalf?
Prospective Juror: One more time.
Court: The State has the burden of proving Defendant's guilt beyond a reasonable doubt, and Defendant does not have to prove his innocence or present any evidence on his own behalf.
(prospective juror shaking head.)
(prospective jurors nodding.)
Court: You don't agree with that?
Prospective Juror: Say it again.
Court: Let's break it up. Do you understand the State has the burden of proving Defendant's guilt beyond a reasonable doubt. Do you all understand that?
(prospective jurors nodding.)
Court: And, likewise, do you understand that the Defendant does not have to present any evidence on his own behalf do you all understand that?
(prospective jurors nodding.)
Court: And do you all understand if Defendant does not testify on his own behalf, this cannot be held against him? Do you all understand and agree with that?
(prospective jurors nodding.)
* * * *
¶ 24 Defendant specifically argues that the trial court did not verify that the jurors accepted the principles that the State has the burden of proving a defendant's guilt beyond a reasonable doubt and that the defendant does not have to present any evidence on his own behalf.
¶ 25 Contrary to defendant's argument, the trial court did verify that the jurors understood and accepted that the State must prove the defendant guilty by a reasonable doubt. As set forth above, the court asked the jurors: "do you all understand the presumption of innocence stays with the Defendant throughout the trial and is not overcome unless from all of the evidence you feel the State has proved his guilt beyond a reasonable doubt. Do you all accept that? (emphasis added)." Which the jurors affirmed. Thus, the only arguable flaw in the trial court's inquiry was that, even though the trial court asked if the jurors understood that defendant did not have to offer any evidence on his own behalf, the trial court failed to ask if the jurors accepted that principle. If this was error, it was rendered harmless in consideration of the fact that defendant did offer evidence on his own behalf. Additionally, as in Wilmington, defendant has not established that any violation of Rule 431(b) resulted in a biased jury or any other particular unfairness. Defendant has failed to satisfy the burden of persuasion under either prong of the plain error analysis.
¶ 26 Length of Sentence
¶ 27 Defendant also argues that the trial court abused its discretion by sentencing him to 18 years imprisonment. Aggravated kidnapping is a Class X felony with a sentencing range of six to 30 years in prison. 720 ILCS 5/10-2(b); 730 ILCS 5/5-4.5-25. The trial court held a sentencing hearing where the State offered evidence in aggravation and defendant offered evidence in mitigation and offered allocution. Following the imposition of the sentence, defendant filed a motion to reconsider the sentence which was denied.
¶ 28 The Illinois Constitution requires a trial court to balance the seriousness of the offense and the objective of returning the offender to useful citizenship. People v. Wilson, 2012 IL App (1st) 101038, ¶ 61. In doing so, the trial court must consider a number of aggravating and mitigating factors. 730 ILCS 5/5-5-3.2; 730 ILCS 5/5-5-3.1. Although the trial court is vested with wide discretion in sentencing, such discretion is not without limitation. People v. Stacey, 193 Ill.2d 203, 209 (2000). The sentence imposed by a trial judge must be fair-minded and equitable. People v. Gooch, 2014 IL App (5th) 120161, ¶ 8. A sentence within the statutory sentencing range constitutes an abuse of discretion if the sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. Stacey, 193 Ill.2d at 210.
¶ 29 The trial judge explained that the length of the sentence was based on the fact that defendant forced Salerno into the car and threatened him with a hammer and that, although there were no injuries, Salerno was terrified. The trial judge further explained that the sentence had to serve as a deterrent so that others would not take the law into their own hands. The trial judge indicated that she had taken into account the fact that defendant had no criminal background, the statements offered in mitigation, and that defendant is a candidate for rehabilitation.
¶ 30 We conclude that, in light of the totality of the circumstances, the length of the sentence constituted an abuse of discretion. Based on all of the evidence, an 18 year prison sentence is excessive. The presentence investigation report reveals that defendant was 38 years old at the time the crime was committed and had no criminal history. Salerno was in defendant's vehicle for a total of ten minutes and then was dropped off at his own home, unharmed. The testimony at trial was that defendant was not the one who brandished the hammer to Salerno, it was the passenger,
Steven Morado. Salerno was 14 years old at the time and knew defendant and his whole family quite well. On the night of the crime, the kidnapping victim spent the night with defendant's nephew and sister. When Salerno learned that defendant's nephew and sister were going to defendant's house to take care of defendant's mother, Salerno asked if he could accompany them. Defendant was also acting in response to the fact that his sister's home had just been robbed which provides some rationale, while seriously misguided, for his conduct.
¶ 31 Although no two cases are the same, a review of the sentences imposed in other aggravated kidnapping cases with more culpable conduct demonstrates why an 18 year sentence is excessive here. See, e.g., People v. Thornton, 333 Ill.App.3d 638 (2002)(ten year sentence for aggravated kidnapping where the victim was badly beaten); People v. Darby, 302 Ill.App.3d 866 (1999)(six year sentence for aggravated kidnapping, 12 year total sentence where defendant was convicted of aggravated kidnapping and aggravated sexual assault of a minor); People v. Curry, 296 Ill.App.3d 559 (1998)(15 year total sentence where defendant was convicted of two counts of aggravated kidnapping, armed robbery, and aggravated battery); People v. Burnfield, 295 Ill.App.3d 256 (1998)(ten year sentence for aggravated criminal sexual assault and aggravated kidnapping). We conclude that a reduction of defendant's sentence is required as the sentence imposed by the trial court is manifestly disproportionate to the nature of the offense. We recognize that similarly situated codefendants are not entitled to the same sentences, People v. Caballero, 179 Ill.2d 205, 216 (1997), but we take judicial notice of the public record that evidences the fact that the codefendant in this case, Steven Morado, received a sentence of seven years for the same conduct. Rather than remand the case for a new sentencing hearing, for purposes of judicial economy and pursuant to our authority under Illinois Supreme Court Rule 615(b)(4), we reduce defendant's
sentence to seven years.
¶ 32 CONCLUSION
¶ 33 Accordingly, we affirm defendant's conviction. We reduce defendant's sentence to seven years imprisonment and remand this case to the trial court with directions to withdraw and amend the mittimus accordingly.
¶ 34 Sentence reduced; remanded with directions.