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People v. Carbona

APRIL 7, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Rehearing denied May 15, 1975.

Defendant Ruthe Carbona was indicted and tried for the murder of her husband, Joseph Carbona. (Ill. Rev. Stat. 1969, ch. 38, par. 9-1.) A jury found defendant guilty and she was sentenced to a term of 20 to 60 years' imprisonment. Twelve issues are raised by defendant on appeal.

Defendant contends: (1) that her Miranda rights were violated; (2) that it was error to admit improper expert testimony; (3) that it was error to admit ballistics evidence which differed substantially from actual conditions; (4) that the use of an incomplete diagram of the scene was prejudicial; (5) that the presentation of improper rebuttal evidence warrants reversal; (6) that she was entitled to allowance of a motion for acquittal after the State's case in chief; (7) that it was error to allow a former assistant State's attorney to testify to his recommendation that murder charges be lodged against defendant; (8) that it was prejudicial to inform the jury of defendant's unwillingness to give a homicide statement in the exercise of her right to remain silent; (9) that the prosecutor conducted himself improperly during defendant's cross-examination and during closing argument; (10) that the jury was improperly interrogated about publicity concerning the trial; (11) that the jury was improperly instructed; and (12) that the evidence failed to prove defendant guilty beyond a reasonable doubt. We will state the pertinent facts and first consider the question of the sufficiency of evidence.

On December 22, 1971, at approximately 9:25 A.M., Officer Robert Buckley responded to an emergency call over the police radio which directed any patrolling car to proceed to the home of Lieutenant Joseph Carbona, 1206 Euclid, Mount Prospect. Buckley was the first of several police officers to arrive at the scene. Upon the hysterical pleas of the defendant, Buckley entered the front door of the home. The deceased, Lieutenant Carbona, was lying on the foyer floor face up with his feet propped two steps up on the landing of a staircase leading to the second floor of the house. The lieutenant was fully clothed, wearing a brown corduroy carcoat, a blue nylon windbreaker underneath, a blue undershirt, and blue trousers. Buckley observed blood on the deceased's chest and found a wound in the chest area of the body. The deceased's eyes were half open and the chest wound had apparently stopped bleeding. Buckley asked the defendant what happened, and she replied, "I don't know. We had a fight." Buckley could not find any signs of life, but immediately called an ambulance for medical assistance. Buckley observed a .357 magnum revolver on the fourth stair. He did not observe or smell any signs of gun powder, nor did he notice any bruises or marks on the face of the defendant. During cross-examination, Buckley testified that he thought Lieutenant Carbona was dead.

Donald Shaw was the next officer to arrive at the Carbona home. He grabbed his first-aid kit and ran towards the front door. Defendant screamed, "Hurry Don, hurry; Joe has been hurt." Shaw checked for vital signs but found none. He observed that the deceased's eyes were open and beginning to dry, and that the wound in the chest had stopped bleeding. The defendant appeared to be in an hysterical state, screaming, "Help him, Don; help him, Don. He wanted to hurt me, and Joe got hurt. Tell me he is all right." A black jacket, neckties, and trousers were found scattered on the landing by Lieutenant Carbona's feet. Further investigation revealed a bullet hole in the back of the deceased considerably higher than the wound in the chest. A bullet was recovered from the lining of the brown corduroy carcoat.

Shaw testified that his assignment was to accompany the ambulance which transported Lieutenant Carbona's body to Holy Family Hospital. The deceased was taken to the emergency room at 11:30 A.M. and pronounced dead on arrival. The body was removed to the hospital's morgue facility. Shaw and Investigator William Denaer undressed and processed the body. Photographs were taken and the deceased's clothing was placed in plastic bags. Shaw tagged the body for purposes of identification.

On cross-examination Shaw testified that he did not observe any marks or bruises on the defendant. However, he did notice bruises on the knuckles and wrists of the deceased. Shaw stated that it was his opinion, based upon his training and experience as a police officer, that the back wound exhibited characteristics of an entrance wound. He observed a halo surrounding the perimeter of the back wound which generally indicates a bruising effect caused by the bullet entering the body at that point.

Investigator William Denaer corroborated the testimony of Officer Shaw. Denaer identified in court every item of clothing removed from Lieutenant Carbona at the morgue, explaining the manner in which each item was identified and bagged. He also stated that he photographed the scene with color and black and white film. The trial court excluded the color prints from evidence because of their possible inflammatory effect; however, a few black and white photographs were later admitted as instructional aids for the jury.

Gary Nelson, a mortician from the Oehler Funeral Home, arrived at the Carbona home with an assistant at approximately 10:30 A.M. Pursuant to the instructions of police officers, Nelson and his assistant lifted the deceased's body inside a basket-type canvas cot. Nelson testified that at no time was the body dragged. After Nelson transported the deceased to the hospital, the body was not removed from the cot until it was lifted onto the autopsy table in the hospital morgue. Nelson assisted Officers Shaw and Denaer in undressing the body.

Sergeant Ernest Marinelli arrived on the scene at approximately 9:30 A.M. Officer Buckley informed Marinelli that the defendant had been arguing with her husband, Lieutenant Carbona, and that the Lieutenant had been shot. Defendant was taken to a neighbor's home accompanied by her mother, brother and sister. Marinelli, who was known by the defendant through her previous associations with the Sheriff's Police Department, approached the defendant in the neighbor's home and asked, "What happened?" Defendant told Marinelli that the deceased had the gun in his hand while he was descending the stairs. In an attempt to dissuade the deceased from leaving her, defendant pulled at the arm of the deceased which held the gun. The deceased tripped, discharging the gun, and he fell to the landing of the staircase. The record is clear that Marinelli's police report of December 22, 1971, accurately recounted his interview with the defendant at the neighbor's home. The record is also clear that defense counsel had knowledge of defendant's statement.

The court heard Marinelli's testimony regarding defendant's initial statement in voir dire outside the presence of the jury. The court excluded the statement holding that Miranda warnings should have been given since defendant was the focus of interrogation.

Marinelli further testified that he collected evidence in the Carbona home. A bullet was recovered from the inner lining of the Lieutenant's brown corduroy carcoat. A .38 snub-nose revolver loaded with six unspent shells was found in one of the pockets of the carcoat. The .357 magnum, which was found on the fourth step, contained three live cartridges and one spent cartridge. The Lieutenant's dark Lincoln Continental automobile was parked in the driveway and contained items of clothing and books. The deceased's eyes were drying. Marinelli believed that Lieutenant Carbona was dead. Marinelli did not smell any alcohol around the deceased's body. When Marinelli returned to the police station at approximately 11 A.M., he found the defendant in the Commander's office with a policewoman on the third floor of the station.

Marinelli testified that he advised defendant of her constitutional rights with the proper warnings. Defendant indicated that she understood those warnings by shaking her head yes. She was crying, but not hysterical. Defendant told Marinelli that she met her husband at her place of employment on the previous evening. He followed the defendant home in his own car. Defendant said that once they were at home, the Lieutenant attempted to run her over with his car. The defendant's leg had been struck, but she told Marinelli that a doctor was not needed.

Defendant related to Marinelli that an argument ensued which awoke the defendant's two children. The deceased left the home at about 3 A.M. but later returned at about 6 A.M. The deceased intended to remove his personal belongings and leave. After much argument, the Lieutenant struck the defendant on the head and threatened to kill her. Once he started to walk downstairs, the defendant grabbed his arm. After a struggle, the deceased tripped, discharging the gun. Defendant told Marinelli that she couldn't recall if it was he or she who fired the weapon, or if it was in her hand or his hand when the gun discharged. Defendant claimed that she immediately called the police.

Marinelli offered his testimony concerning the defendant's statement at the police station before trial began. After hearing the testimony, the trial court denied defendant's preliminary motion to suppress finding that there was no evidence of pressure or coercion placed upon the defendant. Defendant's statement to Marinelli at the police station was allowed to go before the jury.

Detective Bernard Singer arrived at the scene at approximately 9:45 A.M. Singer has been a policeman for over 20 years. He examined the body and believed that the Lieutenant was dead. There were no observable "black marks" or "powder burns" on the body of the deceased. Singer found a pellet in the deceased's carcoat lining which approximated a .38-caliber bullet. Singer also found the .38 snub-nose revolver in one of the carcoat's pockets. Singer testified that a fingerprint analysis of the .357 magnum revolver was conducted at the police laboratory. No fingerprints were found suitable for comparison. Subsequent to Detective Singer's testimony, the State introduced pieces of fiber which adhered to the bullet found on the deceased's body. Those fibers matched the material of the blue nylon jacket which was worn by the deceased underneath the brown corduroy carcoat.

Ballistics evidence was introduced by Bert Nielson, a fire-arm identification technician with 12 years' experience. He testified that the .357 magnum revolver found at the scene could not be fired without pulling the trigger to the rearward position. The .38-caliber bullet found in the deceased's carcoat was of the type used in the .357 magnum revolver and had the same "class characteristics" (six lands and grooves, spiral to the left) as the .357 magnum gun. There was no indication on the bullet itself that it had ricocheted off a harder substance before entering the deceased's body.

Powder pattern tests were performed by Nielson. He used the same .357 magnum revolver with the same type of ammunition from the same manufacturer as the spent cartridge found in the revolver. The gun was fired at padded pieces of cotton in order to determine what kind of powder residue remained at certain firing distances. Nielson claimed that all powders, even fast-burning ones, will leave a residue.

A microscopic analysis was conducted on the cotton used in Nielson's powder pattern tests by Louis A. Vitullo, who has 21 years' experience as a microanalyst with the Chicago Police Department Laboratory. When the revolver was fired directly in contact with cotton material, the exterior became jaggedly torn; the interior contained deposits of tattooed powder with much of the powder embedded deeper into the fiber. Scorching, burning of fiber, and smudging of soot was also evident. When the gun was held 6 inches from the cotton cloth, there was smudging from the soot of the propellant, light scorching and tattooing of unburnt or partially burnt particles of powder. When the revolver was held 12 inches, 18 inches, 24 inches and 30 inches from the cotton target, both smudging and tattooing occurred. From a distance of 36 inches and 48 inches, only tattooing of the unburnt and partially burnt particles of powder was evident.

Vitullo also examined the rear panel of the brown corduroy carcoat of the deceased under both regular and infrared light. Photographs were taken of these microscopic tests. There was no indication on the corduroy of scorching, burning, smudging or tattooing of unburnt or partially burnt particles of powder; there were no particles of steel jacketing from a bullet present. The periphery of the bullet hole did not evidence burnt powder deposits. Neither was there any powder residue on the blue nylon jacket or on the tee shirt which was worn underneath the carcoat. An examination of the plastic bag which the police used to transport the carcoat from the scene of the death to the laboratory revealed no particles of powder or foreign substance due to shaking. Vitullo stated that even when an article of clothing containing powder particles is vacuumed, 100 percent of the particles cannot be removed. Although blood will discolor powder particles, infrared light would disclose the particles under microscopic examination. Corduroy, Vitullo testified, is a form of cotton.

Dr. Edward Shalgos, a pathologist with 35 years' experience, performed an autopsy on the body of Lieutenant Carbona during the morning of December 23, 1971, the day after the Lieutenant's death. Dr. Shalgos testified that he identified the body as Lieutenant Carbona's because of the identification tags attached to the body and the referral sheet corresponding to the tags. Two bullet wounds were found. The back wound was approximately midlevel and 1 1/2 inches to the left of the midline. The back wound was 5 inches higher in position than the front wound, indicating a sharp, downward direction of the bullet path. Although the front wound was described by Dr. Shalgos in the preliminary stages of his report as having entry characteristics, further investigation revealed that the front wound was the exit wound. Fibers of clothing were found embedded in the back wound. Solid tissues of cartilage were pushed outward. These and other findings revealed that the cause of death was that a bullet entered the deceased's back and lacerated his lung, aorta, and heart. The body had to be turned slightly to the right to explain the slightly rightward course of the bullet path.

Based upon his examination of the entire body, Dr. Shalgos was asked on direct if he had formed an opinion, based upon a reasonable degree of medical certainty, as to whether or not Joseph Carbona's arms could have been in a position to inflict the wounds which caused his death. Over objection by defense counsel, Dr. Shalgos testified that it was his opinion that it was a physical impossibility for the deceased to have shot himself.

The defense initiated its case with the testimony of James Lindmark, a former assistant State's attorney of Cook County. Lindmark stated that on December 22, 1971, he was sent to the Sheriff's station where defendant was being held for the purpose of obtaining a homicide statement. Lindmark found the defendant, her mother and a policewoman together in the station. Defendant was crying. Lindmark, at the request of defendant's mother, telephoned defense counsel. Lindmark observed bruises and skin discoloration on defendant's face. Apprehensive that the bruises were received at the police station, Lindmark told defendant that he would just as soon prosecute a policeman if she received those bruises from anybody at the station as prosecute her. When asked about the bruises, defendant told Lindmark that she received them from her husband, the deceased. The defendant did not request the assistance of a physician.

At the outset of cross-examination by the State, the trial court admonished Lindmark not to state that defense counsel had advised defendant to refrain from volunteering information without his presence. Subsequent to the court's ruling, an objection by defense counsel was sustained as to a question probing into any statements about the shooting made by defendant to Lindmark. When asked if he had in fact taken a homicide statement, Lindmark replied in the affirmative. Immediately thereafter, however, he changed his answer and stated that he did not obtain a homicide statement. Lindmark then testified that he recommended murder charges be filed against the defendant.

Ann Sanders, a correctional matron at the Cook County Jail for 5 1/2 years, testified that she undressed and examined the defendant before admitting her into the facility. Sanders observed approximately 15 bruises on the defendant's body, located on the face, neck, arms, buttocks and breasts. A heavy swelling was noticed on one of defendant's legs.

Glen Richert, a police officer and acquaintance of both Joseph and Ruthe Carbona, testified that he saw Lieutenant Carbona at the Sheriff's Police Station between 3 A.M. and 4 A.M. on December 22, 1971. Richert smelled liquor on the breath of Lieutenant Carbona. It was Richert's opinion that the Lieutenant was under the influence of alcohol. Cross-examination revealed that Richert himself had consumed six drinks earlier in the evening.

Christine Richert, the wife of Glen Richert, testified that she met Lieutenant Carbona with her husband at the Sheriff's Police Station in the early morning hours on December 22, 1971. The Lieutenant and Mrs. Richert proceeded to the Richert home at approximately 4:45 A.M. The deceased consumed about three drinks in waiting for Glen Richert to arrive. At approximately 6 A.M. the Lieutenant departed from the Richert home.

Ruthe Carini, age 11, and Billy Carini, age 10, defendant's children by a previous marriage, testified that they were awakened by loud yelling and screaming at approximately midnight. Voices were soon heard from outside the residence. A car pulled out of the driveway, and screams were heard from the defendant. Both children found defendant lying back into the shrubbery with her feet in the driveway. The children assisted the defendant in returning to the house. After falling back to sleep, the children awoke at 7 A.M. and departed for school at approximately 8 A.M.

Defendant testified in her own behalf. On the evening before the shooting, defendant worked as a waitress for a special Christmas party at Corrado's restaurant. After the party, at approximately 10 P.M., she claimed to have driven one of the patrons, Mr. Bacera, back to his office in Bacera's automobile. She was returned to the restaurant by another patron, Mr. Belpedio, who had followed the two in his car to Bacera's office.

Lieutenant Carbona arrived at the restaurant and saw the defendant speaking with Belpedio at approximately 10:15 P.M. Both defendant and her husband returned home. He told her that she should not speak to anyone else. Defendant stated that her husband was intoxicated. He slapped her and punched her in the stomach and on her arms. In attempting to escape, defendant ran outside to her automobile. The Lieutenant pulled her from the automobile, threw her into the shrubbery, and backed out of the driveway striking defendant's leg. With the assistance of her children, defendant returned to the house and retired to her bedroom.

She was later awakened by a slap to the face. Joseph Carbona pointed his .38 revolver to her stomach and threatened to shoot her. He then pointed the revolver to her head and again threatened to shoot. The Lieutenant allegedly departed from the house again.

The deceased returned home for a third time at approximately 8:15 A.M. He stated that he was going to leave the defendant and quit his job as a police officer. He began to load his automobile with his personal belongings. Defendant implored him not to leave her. After placing neckties and other items of clothing in his arms, he allegedly grabbed his .357 magnum revolver from a dresser drawer. The deceased was righthanded, and he carried the gun in his right hand. Once at the bedroom doorway, which was on the second floor landing, defendant attempted to block his path. The Lieutenant struck the defendant on her head with his revolver swearing that his mind would not be changed. He then pulled back the hammer, pointed the gun to the defendant's head and again threatened to kill her. The Lieutenant began walking down the stairs when the defendant grabbed and pulled his right arm behind him. The Lieutenant had walked to about the fourth or fifth step down from the second floor landing; he tripped as a result of the struggle, discharging the gun which inflicted the wound in his back.

The defendant testified that she did not let go of the deceased's hand prior to the shooting; that she never had the gun in her hand; and that the Lieutenant was walking and pulling away when the gun discharged. The deceased allegedly held the gun with all four fingers on the side of the cylinder. The hammer was pulled back in a cocked position. The deceased's arm was extended straight behind him.

The defendant enacted her version of the shooting before the jury three times, twice with defense counsel playing the role of the deceased, and once with the assistant State's attorney playing that role. The defendant stood on a chair and pulled the arm of the person playing the role of the deceased, while the latter walked away from her.

On cross-examination the defendant denied ever making a statement to any third party that she only meant to shoot her husband in the shoulder. She also stated that she could not remember being on any houseboat after the shooting accompanied by a gentleman from Florida who was in the construction business.

In rebuttal, the State recalled Officer Marinelli. He testified that he witnessed the autopsy performed on Lieutenant Carbona's body by Dr. Shalgos.

Officers R.G. Gable, Thomas Vaid, and Errol Levy testified in rebuttal that they had both seen Lieutenant Carbona during the early morning hours of December 22, 1971. They both recalled smelling alcohol on the breath of Officer Richert, but ...

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