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People v. De Mario

JUNE 25, 1969.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PAUL DE MARIO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. HERBERT C. PASCHEN, Judge, presiding. Affirmed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

In a prior proceeding defendant had been found guilty of robbery and murder and sentenced to terms of 10 to 20 and 15 to 30 years. We affirmed those convictions in an opinion filed today. People v. De Mario, 112 Ill. App.2d 175, 251 N.E.2d 267. Meanwhile, under section 72 of the Civil Practice Act, defendant filed, in the trial court, a petition seeking a new trial. Ill Rev Stats (1967), c 110, § 72. At a hearing on the petition, a witness at the trial, admitting that she had lied under oath to the jury, recanted her earlier testimony which had been damaging to the defendant. Defendant's petition was denied.

POINTS RAISED ON APPEAL

(1) The court erred in denying a new trial.

(2) State action deprived defendant of a fair trial.

EVIDENCE

Sharon Smith Cramer, for defendant

We will not repeat here the testimony of this witness at the earlier trial, but make reference to our opinion in People v. De Mario, 112 Ill. App.2d 175, 251 N.E.2d 267. At the hearing on this petition she declared that all the basic parts of her testimony at the trial had been untrue. She said that she was going to tell the truth at the time but that she was nervous and scared because Officer Mahoney told her she had better not change her story, and he kept giving her "dirty looks" while she was testifying. On cross-examination, she admitted that she had never told anyone that her testimony had been untrue until almost two years after the trial when defense counsel informed her that the case was going to be appealed.

On further direct examination, she stated that Officer Mahoney, sometime shortly after the incident, had placed her under arrest and this caused her to become upset on account of her baby. Then he drove her and Candy Bergman, another State witness at the trial, to view the scene of the crime, and eventually told her to sign an untrue statement in order to avoid going to jail herself. She was not in the car with defendant that afternoon, and would have told the truth at his trial but for the presence of Officer Mahoney in the courtroom. On cross-examination, she conceded that her testimony at defendant's trial was the same she had given at the earlier trial of his co-indictee, Guy Ramirez. Officer Mahoney had been present then also.

John Mahoney, for the State

He was assigned as a homicide detective to the case that involved John Baird's death. He remembered questioning Sharon Smith Cramer after Ramirez and defendant had been taken into custody, but he doubted that he told her she was under arrest for murder. Neither Cramer nor Bergman was ever arrested or charged. After driving them to the scene to refresh their memories, he took statements from both of them. At first Cramer said she didn't know anything, but Bergman said to her, "Yes, you do." Then "the story came out." There was no threat of coercion exerted upon the girls either at this point or later at trial. In fact, before this defendant's trial, Cramer had testified to substantially the same evidence at the Ramirez trial. He (Mahoney) was not in the courtroom at that time, there having been a rule excluding witnesses. He testified at the Ramirez trial but not at this defendant's trial.

On cross-examination, he testified that he may have told Cramer the date when the crime was supposed to have occurred, and it was possible that he said to Bergman and Cramer, "You girls were there, weren't you?" but he didn't remember it.

Robert Cody, for the State

He is a detective who worked with Detective Mahoney on this case and was present when Sharon Cramer was first picked up for questioning. Her name had been given to them by Candace Bergman. He didn't hear Mahoney, nor did he, himself, make any ...


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