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People v. D'argento

FEBRUARY 11, 1969.




Appeal from the Circuit Court of Cook County; the Hon. WILLIAM S. WHITE, Judge, presiding. Judgments affirmed.


Rehearing denied March 21, 1969.

Defendants, Joseph D'Argento and Michael Carracci, were indicted and tried together under indictments charging them with the crimes of burglary and attempt murder. The jury failed to reach a verdict on the attempt murder charge and, on motion of the State, that indictment was stricken with leave to reinstate. The jury returned verdicts of guilty on the burglary charge on which judgments were entered. D'Argento, who had a record of prior convictions, was sentenced to a term of fifteen to twenty years and Carracci to a term of four to ten years in the penitentiary. They appeal.

The evidence shows that between 9:30 and 10:00 p.m. on December 3, 1963, night watchman Bert Rolan was conducting a routine check of the thermostat in a vacant furniture store next door to the Baer Brothers & Prodie clothing store located at 4132 West Madison Street in Chicago. Rolan noticed a man in a kneeling position on the floor of the furniture store and, with his gun drawn, ordered the man out of the premises onto Madison Street toward a police squad car parked a short distance away. Rolan described the man as being the same height and weight and as having the same type and color of hair and type of build as D'Argento, and clad only in shoes, trousers and a short sleeve white shirt. The temperature outdoors was around twenty-five degrees above zero.

As Rolan and the man arrived on Madison Street, a 1964 Ford automobile occupied by three men approached traveling westerly on Madison and slowed at the curb near the place where Rolan and his captive were standing. Someone in the rear seat of the automobile fired shots at Rolan, and someone in the automobile hollered, "Come on, Joe, come on," and "Back off, copper." Rolan's captive broke away and entered the Ford automobile which then sped away westerly on Madison Street. A police car traveling easterly along Madison executed a U-turn and pursued the Ford. Rolan returned to the rear of the furniture store where he found a long steel bar, two heavy hammers, chisels, and a truck half filled with clothing later identified as the property of Baer Brothers & Prodie. Further investigation revealed a large hole in the common wall between the vacant furniture store and Baer Brothers' store.

Chicago Police Officer Gilbert Broderick testified that he witnessed the proceedings outside the furniture store and pursued the Ford automobile in his squad car after the Ford sped westerly on Madison Street. After a three-block chase, the Ford went out of control attempting a turn onto Kildare Avenue and collided with a parked automobile. Four men got out of the Ford and ran west on Madison. Officer Broderick stopped his vehicle in front of the fleeing men, and got out and fired a warning shot. Three of the men ran into a nearby doorway where they were later apprehended by the officer; the fourth man escaped. Two of those arrested were the defendants, and the third man was identified as James Johnson. At the time of the arrests, D'Argento was wearing a short sleeve white shirt and no jacket. A search of the Ford automobile revealed an inoperative radio of the type used to monitor police calls and an assortment of heavy tools. Also recovered from the automobile was a loaded pistol and two spent cartridge casings.

Mr. Peter Varvitsiotes testified that he was in the process of closing his restaurant on west Madison Street when he heard what sounded like gunshots coming from the outside. When he turned to see what was happening, he observed the Ford automobile, traveling west on Madison, swerve and strike an automobile parked in front of his establishment. He observed four men get out of the Ford and run west on Madison pursued by a police car. The police car stopped and the officer alighted from the vehicle and fired a warning shot. The men darted into a nearby doorway and were later arrested by the officer. The witness identified D'Argento as one of the three men arrested who the witness testified was wearing a short sleeve white shirt. Both defendants were cut about the face and were bleeding.

Defendant Carracci testified that for a few days prior to December 3, 1963, he had been kept home by a lingering cold. On December 3rd, D'Argento telephoned his home and invited him to dinner. After dinner, the pair went to a bowling alley where they stayed approximately forty-five minutes. They left the bowling alley with the intention of going to Carracci's home, but decided to stop at a small restaurant near Kostner Avenue and Madison Street for a cup of coffee. As they were walking east on Madison they heard a crash and what sounded like the backfire of an automobile. Some men came running by and in a matter of seconds a police officer approached defendants and told them to get into a nearby doorway and to raise their hands. James Johnson was brought over and placed beside the defendants; Carracci testified that neither defendant had known Johnson prior thereto. He also testified that at the time of the arrest, D'Argento had been wearing a jacket over his white short sleeve shirt, but that an officer removed the jacket after the arrest. Carracci further stated that he and D'Argento received the cuts on their faces when they were beaten at the police station during interrogation.

The trial of this cause had been in progress approximately two weeks and the trial judge called counsel for both sides into chambers. The judge informed them that a juror that day told him he had received a telephone call from an anonymous caller who identified himself as "Mustache" and who told the juror, "I want you to find those fellows guilty." The trial judge was advised by the juror that he told no other juror of the call, nor would he do so in the future, and also that the call would have no effect on his impartiality as a juror. Defense counsel moved for a mistrial, after which the assistant state's attorney moved that the juror who had received the call be withdrawn and replaced with an alternate juror, to which defense counsel objected. The assistant state's attorney then moved that the juror in question be brought into chambers for questioning by all concerned, but defendants again stood on their motion for a mistrial which was ultimately denied.

Defendants' first contention is that the trial court erred in denying their motion for a mistrial for the reason that the fact that a juror had been approached by an anonymous telephone caller rendered a fair trial by an impartial jury impossible, and for the further reason that defendants were denied their constitutional rights to a public trial and to be present at all stages of the proceedings against them by the in camera examination of that juror by the trial judge without their or their counsel's presence.

The fact that there is an unauthorized communication to a juror does not, of itself, render a fair trial by an impartial jury impossible. It is necessary to show that the unauthorized communication in some way prejudiced the defendant. People v. Berry, 18 Ill.2d 453, 165 N.E.2d 257.

In People v. Williams, 38 Ill.2d 115, 230 N.E.2d 224, the trial court allowed the jurors to telephone their homes and the calls were monitored by a bailiff. The family of one of the jurors pressured him because of his service on the jury and the court refused to grant a mistrial on that ground. Defendant there, as did defendants here, refused the court's offer to withdraw the juror in question and replace him with an alternate. The court, on appeal, affirmed defendant's conviction after noting that there was no evidence that defendant was in any way prejudiced by the incident.

A trial judge has a broad discretion in determining whether a mistrial will be declared. People v. Ray, 77 Ill. App.2d 166, 222 N.E.2d 176. At the time the motion for the mistrial was made, the trial had been in progress for two weeks. Defendants were offered two alternatives in remedying the incident of the anonymous telephone call, and the trial judge was assured by the juror that his impartiality would not be affected by the call. There is no showing that defendants were in any way prejudiced by the call, and we are of the opinion that the trial judge did not abuse his discretion in denying their motion for a mistrial.

The cases cited by defendants in support of their position are distinguishable on their facts. People v. Kawoleski, 313 Ill. 257, 145 N.E. 203, involves a statement made by a deputy bailiff in charge of the jury in the presence of the jury, to the effect that it should take only a matter of minutes to find defendants guilty. In People v. Tilley, 406 Ill. 398, 94 N.E.2d 328, a disorderly woman stated in the presence of the jury that she would free defendant if she were on the jury, after first having made disparaging remarks about one of the bailiffs in charge of the jury. See also People v. Murawski, 394 Ill. ...

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