                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Alvarado, 2013 IL App (3d) 120467




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JAMES ALVARADO, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-12-0467


Filed                      August 9, 2013


Held                       The 45-year enhanced sentence imposed on defendant for the first degree
(Note: This syllabus       murder of his wife after she disclosed that she had been unfaithful was
constitutes no part of     upheld over defendant’s contentions that the trial court erred in
the opinion of the court   determining that defendant could either use all or none of the video of his
but has been prepared      interrogation, that allowing the jury to view the video a second time
by the Reporter of         during deliberations was an abuse of discretion and that he was entitled
Decisions for the          to the day-for-day credit for the 25-year firearm enhancement of his
convenience of the         sentence, since the entire video was relevant and playing only a portion
reader.)
                           would have been misleading, and further, the trial court did not abuse its
                           discretion in permitting the jury to review the video during its
                           deliberations; however, a person convicted of first degree murder is
                           required to serve the entire sentence without any good-conduct credit, and
                           the enhanced part of defendant’s sentence is considered part of the
                           sentence for murder.


Decision Under             Appeal from the Circuit Court of La Salle County, No. 06-CF-575; the
Review                     Hon. H. Chris Ryan, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Allen H. Andrews, of State Appellate Defender’s Office, of Springfield,
Appeal                      for appellant.

                            Brian Towne, State’s Attorney, of Ottawa (Terry A. Mertel and Justin A.
                            Nicolosi, both of State’s Attorneys Appellate Prosecutor’s Office, of
                            counsel), for the People.


Panel                       JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
                            Justice O’Brien concurred in the judgment and opinion.
                            Presiding Justice Wright specially concurred, with opinion.




                                              OPINION

¶1          Following a remand for a new trial (People v. Alvarado, No. 3-08-0200 (2010)
        (unpublished order under Supreme Court Rule 23)), defendant, James Alvarado, was
        convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2006)) and sentenced to 45
        years in prison. His sentence included a 25-year enhancement because he discharged a
        firearm which proximately caused the victim’s death. Defendant appeals, arguing that: (1)
        the trial court erred when it determined that he could play either all or none of a video
        recording of the interrogation; (2) the trial court abused its discretion when it permitted the
        jury to watch the video recording of the interrogation for a second time during deliberations;
        and (3) defendant is entitled to day-for-day credit for the 25-year enhancement. We affirm.

¶2                                             FACTS
¶3          Following the shooting death of defendant’s wife, the State indicted him on three counts
        of first degree murder (720 ILCS 5/9-1(a)(1) (West 2006)). Police conducted a videotaped
        interrogation after defendant’s arrest. In the video, defendant admits to shooting his wife
        after he learned that she had an extramarital affair. Prior to trial, defendant filed a motion to
        suppress the video because the police officers had ignored his request for counsel. The trial
        court granted defendant’s motion, and the video was suppressed. The cause proceeded to a
        jury trial where defendant was convicted of first degree murder. However, on appeal, this
        court remanded the cause for a new trial. Alvarado, No. 3-08-0200.
¶4          During the second trial, defendant testified that, while engaging in intercourse with his
        wife, he noticed that she was behaving differently when performing oral sex. When he
        inquired into the new technique, she became nervous and evasive. The couple went into their
        bathroom and continued the conversation while sitting on the floor and smoking cigarettes.
        Eventually, she admitted to kissing another man while she was at a convention in

                                                  -2-
       Springfield; however, she continued to be evasive about the oral sex technique. Defendant
       became frustrated and retrieved a loaded pistol from a box in the bathroom closet. He hoped
       to frighten her so she would tell him the truth. Apparently frightened, she admitted to an
       affair. Defendant became so upset that he started shaking. Defendant testified that he did not
       remember what happened next, but he did remember seeing his wife slumped over with a red
       mark on her chest.
¶5         Officer Robert Wood testified that after arriving at the scene, defendant explained that
       he had learned his wife had had an affair and that he “lost it.” Deputy Sheriff Doug Pastirik
       testified that defendant said he could not believe that he had ruined his life, asked how he
       could tell his children about the stupid thing that he had just done, and said several times that
       he had “screwed up.”
¶6         Defense counsel sought to play the last two minutes of the video of defendant’s
       interrogation with police. That portion showed defendant’s reaction to the news that his wife
       had died. The State argued that the completeness doctrine permitted it to have the rest of the
       interrogation shown to the jury because the remainder placed defendant’s reaction to his
       wife’s passing in perspective. Defendant disagreed and argued that the two-minute portion
       of the video should not open the door to the rest of the interrogation. The trial court
       determined that playing only the two-minute portion would be “self-serving” and that the rest
       of the interrogation included other indicators of defendant’s state of mind. Therefore, the
       court stated that it would not permit defendant to show only the final two minutes; defendant
       could either play the entire interrogation for the jury or none of it. Defendant decided to show
       the interrogation, and it was played for the jury during the presentation of defendant’s
       evidence.
¶7         In closing argument, defendant argued that he lacked the mental state for murder but that
       he was guilty of involuntary manslaughter. During its deliberations, the jury requested a
       transcript of the interrogation. Defendant objected. The trial court decided that, while it
       would not show the jury a transcript, it would replay the interrogation. After the video was
       played, the jury continued its deliberation and eventually found defendant guilty of first
       degree murder. Defendant received a 45-year sentence. The sentence included a 25-year
       enhancement because while committing the offense of first degree murder, defendant had
       discharged a firearm that proximately caused the death of the victim. Defendant appeals.

¶8                                          ANALYSIS
¶9                                                 I
¶ 10       Defendant first argues that the trial court erred when it required him to play all or none
       of the recorded interrogation because a portion of that recording exposed the jury to the fact
       that he had requested counsel and refused to sign a Miranda waiver form. A trial court’s
       decision regarding the admission of evidence is reviewed for an abuse of discretion. People
       v. Caffey, 205 Ill. 2d 52 (2001).
¶ 11       Initially, the State contends that the invited error doctrine prohibits defendant from
       raising this issue on appeal. Under the invited error doctrine, a defendant is barred from
       claiming error in the admission of improper evidence where the defendant procured, invited,

                                                 -3-
       or acquiesced to the admission. People v. Harvey, 211 Ill. 2d 368 (2004). An accused,
       therefore, may not ask the trial court to proceed in a certain matter and then contend on
       appeal that the order, which he obtained, was error. Id. Here, while it is true that defendant
       ultimately decided to present the entire recording to the jury, he did so only after the trial
       court ruled that he could either play all or none of the recording. By playing the video, the
       defendant did not procure, invite, or acquiesce to the admission of the evidence. Ergo, we
       can conclude that the invited error doctrine is inapplicable here.
¶ 12       In this case, the court’s ruling on the video was based on the completeness doctrine. That
       doctrine states that if one party introduces part of an utterance, the opposing party may
       introduce the remainder or so much thereof as is required to place the part originally offered
       in proper context so that a correct and true meaning is conveyed to the jury. People v.
       Ruback, 2013 IL App (3d) 110256.
¶ 13       In the last two minutes of the video, defendant reacts emotionally when he is told that his
       wife had died. Prior to that time, he had displayed a calmer demeanor as he discussed the
       shooting with the officers. The trial court determined that the two-minute portion would not
       present a complete picture of the interview and would be inadequate for assessing
       defendant’s state of mind. We agree that the entire video contains information relevant to
       defendant’s state of mind and playing only the last two minutes would have been misleading.
       The trial court’s ruling was not an abuse of discretion. However, we feel that the better
       course would have been for the trial court to order that if defendant showed the last two
       minutes of the interrogation, the State would be able to show the remainder of the video on
       rebuttal. This would not have prejudiced the State.

¶ 14                                              II
¶ 15       Defendant next argues that the trial court erred when it permitted the jury to rewatch the
       recording of defendant’s interrogation during deliberations. In determining whether to grant
       or refuse a request by the jury to rehear a piece of evidence, the trial court must determine
       whether review of the evidence would be helpful or harmful to the jury’s deliberations.
       People v. McKay, 138 Ill. App. 3d 446 (1985). A trial court’s decision to permit review of
       evidence during jury deliberations is reviewed for an abuse of discretion. People v. Miller,
       311 Ill. App. 3d 772 (2000).
¶ 16       Here, we find that the trial court did not abuse its discretion when it permitted the jury
       to review the video interrogation of defendant. Defendant’s state of mind was at the heart of
       the case. The interrogation provided valuable information regarding defendant’s view of the
       events leading up to the shooting of his wife, and, as we have noted, it further provided clues
       to defendant’s state of mind. Defendant alleges that the video was harmful because it
       included defendant’s request for counsel and his refusal to sign a Miranda waiver. That
       information, according to defendant, reinforced the jurors’ likely perception that he did not
       cooperate with police because he was guilty. We disagree. Although defendant does ask for
       counsel and does not sign a Miranda waiver, the video clearly shows that defendant is
       willing to cooperate with police. Therefore, we conclude that the trial court did not abuse its
       discretion when it granted the jury’s request to replay the interrogation during deliberations.


                                                -4-
¶ 17                                              III
¶ 18        Finally, defendant argues that he is entitled to day-for-day credit for the 25-year firearm
       enhancement that was added to his sentence for first degree murder. See 730 ILCS 5/3-6-
       3(a)(2.1)(West 2006) (mandating day-for-day good conduct credit for certain offenses).
       Pursuant to section 3-6-3(a)(2)(i) of the Unified Code of Corrections (Code), “a prisoner who
       is serving a term of imprisonment for first degree murder *** shall receive no good conduct
       credit and shall serve the entire sentence imposed by the court.” 730 ILCS 5/3-6-3(a)(2)(i)
       (West 2006). However, defendant contends that the 25-year enhancement was separate from
       the sentence for murder, and, therefore, only 20 years of the sentence are subject to section
       3-6-3(a)(2)(i). The State argues that the trial court was correct in stating that defendant must
       serve 100% of his 45-year sentence.
¶ 19        The question of whether the 25-year enhancement is part of defendant’s sentence for
       murder or a separate offense not subject to the 100% service requirement presents a question
       of statutory interpretation. In construing a statute, the fundamental rule is to ascertain and
       give effect to the legislature’s intent. Lambert v. Coonrod, 2012 IL App (4th) 110518. The
       most reliable indicator of legislative intent is the statutory language itself, which must be
       given its plain and ordinary meaning. Id.
¶ 20        Section 5-8-1(a) of the Code states that “[e]xcept as otherwise provided in the statute
       defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence
       set by the court under this Section, according to the following limitations.” 730 ILCS 5/5-8-
       1(a) (West 2006). One of the limitations states that “if, during the commission of the offense,
       the person personally discharged a firearm that proximately caused great bodily harm,
       permanent disability, permanent disfigurement, or death to another person, 25 years or up to
       a term of natural life shall be added to the term of imprisonment imposed by the court.” 730
       ILCS 5/5-8-1(a)(1)(iii) (West 2006).
¶ 21        We believe that the plain and ordinary meaning of section 5-8-1(a) is that the
       enhancements provided therein are to be considered part of the sentence. This is made clear
       by the language of the statute, which indicates that a felony sentence is subject to the
       limitations provided in that section and that the 25-year term shall be “added” to the term of
       imprisonment. The word “add” means “to unite or join so as to increase the *** size.” The
       Random House Dictionary of the English Language 22 (2d ed. 1987). Use of the word
       “added” here suggests that the enhancement increases the size of the original sentence and,
       in that sense, becomes part of it. Therefore, based on the plain language of the statute, we
       conclude that the 25-year enhancement was part of defendant’s sentence for murder, and, as
       such, the entire 45-year sentence is subject to the requirements of section 3-6-3(a)(2)(i).

¶ 22                                   CONCLUSION
¶ 23       For the foregoing reasons, the judgment of the circuit court of La Salle County is
       affirmed.

¶ 24      Affirmed.


                                                 -5-
¶ 25        PRESIDING JUSTICE WRIGHT, specially concurring.
¶ 26        I agree with the majority’s conclusion that defendant’s conviction should be affirmed.
       I write separately because I believe the defense waived any error arising out of the exclusion
       of the edited videotape (defense exhibit No. 4) once the defense made the informed, but
       strategic, decision to introduce the entire videotape (defense exhibit No. 6). Thus, by offering
       the entire recording as defense exhibit No. 6, the evidentiary error, if any, constituted invited
       error by the defense.
¶ 27        It is undisputed the court originally suppressed the entire videotape on the grounds the
       police improperly continued the conversation with defendant after defendant made a request
       for counsel. Consequently, during the second trial, the State did not discuss the content or
       offer the videotape of the recorded interview into evidence.
¶ 28        However, after the State rested its case during the second trial, the defense revealed a
       new approach with respect to the previously suppressed, videotaped, interview. Looking for
       guidance from the court, defense counsel announced:
            “It’s my position that I do intend to play that portion of the end of the tape, the last two
            minutes, to the jury and I would want an advance ruling from the court that that doesn’t
            open the door to allow the State to play the whole tape.”
¶ 29        After a somewhat informal discussion with both attorneys, the court advised defense
       counsel that a decision to offer defense exhibit No. 4, the last two minutes of a suppressed
       interview, could indeed open the door to the admission of the entire videotape by the State
       under the completeness doctrine. Later in the trial, after considering all of the case law
       submitted to the court, the court ruled that it would not “permit” the jury to receive only the
       last two minutes of the videotape as the defense had hoped. However, the court advised the
       defense that the door to the admission of the entire videotape would not be opened if
       defendant asked the officer to describe defendant’s physical reaction to news of his wife’s
       death. After this ruling, defense counsel requested permission to confer with his client at a
       later point in the proceedings before deciding “how [the defense was] going to proceed.”
¶ 30       Obviously, defense counsel had at least three strategic options to discuss with his client.
       The first option would be to rely on the order suppressing the contents of the videotaped
       interview. The defense adopted this strategy in the first trial, which resulted in a guilty
       verdict.
¶ 31        The second option which the court suggested would be for the defense to call an officer
       to the stand for the purpose of describing defendant’s physical reaction to news of his wife’s
       death which took place during the final two minutes of the interview. According to the trial
       court, this approach would not open the door for the State to potentially seek the admission
       of the entire videotape.
¶ 32        The third option would be for the defense to publish the entire recorded interview and
       allow the jury to “view” the final two minutes of the recording. The defense argued to the
       court that defendant’s demeanor, as recorded during the last two minutes on tape, constituted
       persuasive evidence he did not intend to kill his wife. The defense proceeded with this
       option.

                                                 -6-
¶ 33       The record reveals counsel had an opportunity to confer with his client regarding the
       videotape following defendant’s testimony. Thereafter, defense counsel advised the court as
       follows:
                “MR. BERTRAND [defense counsel]: Your Honor, with regard to the suppressed
           statement, I’ve had a conversation with my client. I’ve been talking about this with my
           client for many weeks. Obviously, I believe that the Court’s ruling with regard to defense
           Exhibit No. 4 is incorrect which is a shortened version of the tape. But in light of the
           Court’s ruling I am, I believe, required–so that the jury is able to view the last two
           minutes of that tape–the Court’s ruling is I have to play the whole thing.
                So I’ve talked to my client. He understands that this is a suppressed statement. He
           understands that it was suppressed as a result of him being denied an attorney during
           questioning. It’s our intention at this time to waive Mr. Alvarado’s constitutional right
           and publish that tape to the jury.
                THE COURT: Mr. Alvarado, you’re present in court here. You heard what your
           lawyer said.
                THE DEFENDANT: Yes, I did.
                THE COURT: Okay. You understand that I kept this out. It was my understanding
           your attorney’s talked to you and you made a decision with him that you want to play it?
                THE DEFENDANT: That’s correct, sir.
                THE COURT: Okay. Thank You. State, any problem with that being in by stipulation
           then?
                MR. TOWNE [prosecutor]: If that’s their trial strategy and they’ve talked about it,
           it’s fine with me.”
¶ 34       The exchange between the court and counsel makes it clear to me the defense elected to
       offer defense exhibit No. 6, the entire videotape, rather than presenting the evidence to the
       jury by asking the officer to describe defendant’s reaction for the jury. To me, the court’s
       decision to admit defense exhibit No. 6 as requested by the defense, if error, was invited
       error.




                                                -7-
