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People v. Gargano

APRIL 6, 1973.




APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.


Rehearing denied May 7, 1973.

The defendant, Cyril Gargano, was convicted in the Circuit Court of Lake County of burglary and armed violence. He was sentenced to a term of 5-10 years for burglary and 5-12 years for the offense of armed violence, the sentences to run concurrently. The defendant appeals from these verdicts and has raised numerous alleged grounds for reversal which we shall consider respectively.

The defendant, Cyril Gargano, Edward McCormick, and Paul Raymond were indicted for burglary, attempt to commit burglary, attempt to commit murder of a police officer, and armed violence. The defendants Gargano and McCormick were tried before a jury in a two week jury trial and the charge of attempt to commit burglary was dismissed by the court prior to the submission to the jury.

On October 3, 1970, Gargano and Paul Raymond were driven by McCormick to the residence of Beverly Jane Rundgren located in a wooded area on Lake Villa in Lake County, Illinois, where they were let out of the car on the road in front of the Rundgren residence. Prior to their arrival, two Lake County deputy sheriffs and four Chicago policemen had staked out the premises. The police officers were stationed behind trees and in the bushes on the Rundgren property. Gargano and Raymond approached the house by crouching behind trees and shrubbery up to the breezeway attached to the house. They went into the garage. A few minutes later they exited the garage and started down the driveway. Officer Cirone then identified himself, and called "Police, stop." The defendant Gargano ran and then turned and fired two shots at the police officer. Officer Cirone and Michaels fired at Gargano and Raymond, who had fled southwesterly. Raymond was physically captured by Deputy Donaldson assisted by Officers Michaels and Cirone. Cirone took a .22 caliber Derringer from Raymond's hand. Defendant Gargano almost ran into Officer Brown who hit him in the face with the butt of a shot gun. Gargano fell and Officer Grundy found a .38 detective Colt revolver on the ground. The two men were subdued and taken into custody. Shortly thereafter, the car driven by McCormick returned to the scene and detective Grundy put a flashlight on the driver and said "Police, stop." McCormick then drove away at a high rate of speed. Subsequently, he surrendered.

• 1, 2 The defendant has raised numerous issues. The first contention is that there was no proof that the defendant committed the offense of burglary, and that therefore the charge of armed violence cannot stand. The substance of defendant's contention is that the short period of time that the defendants were in the garage, the fact they had no burglar tools, and that no property was taken, is insufficient to establish at the time defendants entered the garage that they had the intent to steal required under the indictment. Actually, the defendant stealthily entered the garage attached to the home of Beverly Jane Rundgren armed with a .38 caliber revolver and wearing gloves. Mrs. Rundgren testified that the door between the garage and the house was locked. There was therefore actual entry into the premises and it is the function of the jury to weigh the credibility of the witnesses. The automobile in the garage was obviously a potential object of larceny and the jury were justified in finding that Gargano entered and the jury were justified in finding that Gargano entered the premises with intent to commit a theft. The fact that he may have been frightened away or found the inner door locked; the shortness of time he happened to be in the premises at this hour of the night having approached the premises stealthily by jumping from tree to tree does not indicate that he was a mere visitor, or as defense counsel would have us believe, a mere trespasser.

The indictment herein stated that the property in question was owned by Jane Rundgren. The proof disclosed that it was owned by Beverly Jane Rundgren. Defendant contends this is a fatal variance.

• 3 Counsel has cited People v. Walker (1955), 7 Ill.2d 158 at 161, 130 N.E.2d 182 at 183, as authority for this contention. However, counsel failed to cite the next sentence which reads as follows: "Proof of the Christian name is unnecessary, however where the facts in evidence leave no doubt as to the identity of the person."

• 4 Likewise, defendant's contention that a garage attached to a house is not a part of the residence, is specious as the Burglary statute species "or any part thereof." Ill. Rev. Stat. 1969, ch. 38, sec. 19(1); People v. Blair (1952), 52 Ill.2d 371, 288 N.E.2d 443.

• 5 The defendant next contends that he should have been allowed to take a polygraph or lie detector test and to permit the results of said test into evidence. The admissibility of polygraph tests in Illinois has been the subject of numerous cases. The most important one doubtless is People v. Zazzetta (1963), 27 Ill.2d 302, 189 N.E.2d 260, 263. In that case the court stated at page 306:

"In the absence of stipulation, our courts, without exception, reject the results of lie-detector tests when the same are offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime."

We do not agree with defendant's contention that the results of a lie detector test are admissible in evidence. The Illinois Supreme Court and this court have never held that the results of lie detector tests used against the accused are admissible, and in this court's opinion the converse is likewise true. If the test is unreliable as to the guilt of the accused it is equally as unreliable as to the innocence of the accused.

• 6, 7 Defendant alleges "prosecutorial misconduct." The substance of the alleged improper conduct of the prosecutor consists of a question by him of a fire-arms expert with reference to a report made by the expert "Does that report cover not only what was done?" There was an objection and no further inquiry was had. Secondly, he complains of the State's Attorney's closing argument that the Lake County Sheriff's department contacted City of Chicago police authorities, where actually it was the reverse. This court fails to see how either of these contentions would affect the jury adversely in any way, nor would these contentions have anything to do with the guilt or innocence of the accused.

• 8 The same is true with regard to defendant's contention that he should have been allowed to bring in the hospital records pertaining to the injuries sustained by him after the shooting and other statements therein. Ill. Rev. Stat. 1969, ch. 38, sec. 115-5 provides in pertinent part that hospital records are not admissible in a criminal trial, and ...

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