APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
A. MEIER III, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 25, 1975.
This is an appeal from a judgment entered in the Circuit Court of Cook County. The defendant, Mario DeStefano, along with Sam DeStefano and Anthony Spilotro, were indicted on August 30, 1972, for the 1963 murder of Leo Foreman. Prior to trial Sam DeStefano was killed. Following a jury trial, Anthony Spilotro was acquitted, but defendant Mario DeStefano was found guilty of murder and sentenced to a term of 20 to 40 years in the Illinois State Penitentiary.
The issues presented on appeal are: (1) whether the defendant was denied due process of law when the State, having evidence material to the question of defendant's guilt, failed to furnish such evidence to the defendant after a proper request was made; (2) whether the trial court properly admitted into evidence expert testimony regarding comparison of paint samples recovered in 1972 with paint chips found on the clothing of the victim in 1963; (3) whether the defendant was denied due process and effective confrontation of witnesses when the State failed to take any written statements from a State witness, who, in 1972, admitted his complicity in the murder of Leo Foreman after he had originally denied any participation in the murder in 1963; and (4) whether the verdicts convicting defendant Mario DeStefano and acquitting Anthony Spilotro were inconsistent.
Prior to trial, pursuant to Illinois Supreme Court Rule 412, the defendant filed a motion for pretrial discovery. Included in defendant's motion was a request for the State:
"To disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor."
In the State's answer to defendant's motion there was no response to the above-mentioned request.
At trial, Charles Crimaldi, having been granted immunity from prosecution, testified on behalf of the State that he, Anthony Spilotro, Sam DeStefano and the defendant, Mario DeStefano, participated in the killing of Leo Foreman on November 14, 1963. Crimaldi testified he went to the home of Sam DeStefano in the afternoon of November 14, 1963. Crimaldi was taken into a bedroom where Sam DeStefano gave him a pair of gloves and a gun and told him of the plan to kill Leo Foreman. Crimaldi then drove to the home of the defendant, Mario DeStefano, in Leo Foreman's car. At the house, Crimaldi was met by Foreman and the defendant. After a few minutes, the defendant asked Foreman if he wanted to see the bomb shelter which defendant had built recently. The three men proceeded down some stairs to a room under the house. Crimaldi and the defendant then pushed Foreman into the shelter and fired their weapons at him. Crimaldi further testified that, after the weapons had been fired, he turned and saw Anthony Spilotro firing a gun. The defendant then stabbed the victim several times. The defendant and Spilotro then dragged the body up the stairs and put it in the trunk of the victim's car.
Mr. Claude Hazen, a microanalyst in the Chicago Police Crime Detection Laboratory, testified that in November, 1963, he vacuumed debris, including paint chips, from the clothing of Leo Foreman.
Gerald Lewandowski, a special agent with the Illinois Bureau of investigation, testified that on July 11, 1972, he went to the former residence of defendant in Westchester, Illinois, along with agents from the Chicago Crime Lab and an assistant State's attorney. The personnel from the crime lab removed samples of floor tile and paint from the bomb shelter in the house. These samples were compared with the debris vacuumed from the clothes of Leo Foreman in 1963. Sergeant Louis Vitullo, a microanalyst in the Chicago Police Department, testified over objection of the defendant that the paint samples recovered from the clothing of Leo Foreman in 1963 were similar in color and pigment distribution, and that the property elements were present in similar amounts.
At the close of the State's case, the parties stipulated that the cause of Leo Foreman's death was due to gunshot wounds and stab wounds to the chest.
Defendant testified in his own behalf that on November 14, 1963, he owned a restaurant and was working there during the time that Charles Crimaldi stated the killing took place. Defendant's testimony was corroborated by an employee of the restaurant who testified that during the first two weeks of November, 1963, the defendant never left the place of business between the hours of 11 a.m. and 2 p.m. The defendant further testified he built a bomb shelter in his home 5 feet below ground level. The floor consisted of reinforced concrete which was not painted until 1967 when defendant's son painted it. Defendant repainted the floor in 1969 prior to selling his home. Sirio Paoletti and Roman Paoletti both testified they remodeled the defendant's bomb shelter in 1966, at which time there was no paint on the floor.
Anthony Spilotro presented testimony that on November 14, 1963, he, his brother and his brother's fiancee went shopping for furniture. Documentation regarding monies deposited in a bank that morning and checks written for furniture on that date, plus testimony of furniture salesman who recalled seeing Spilotro on the day in question, were introduced into evidence.
Subsequent to defendant's sentencing, the defendant learned for the first time that Leo Foreman had been severely beaten by Chicago police officers approximately 3 weeks before his death. As a result of the beating, Foreman had engaged the services of George Leighton, then a practicing attorney and now a justice of the Illinois Appellate Court. Defendant also learned ...