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People v. Lusietto

OPINION FILED AUGUST 31, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES LUSIETTO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. FLOOD, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

After a jury found the defendant, James Lusietto, Jr., guilty of burglary, the circuit court of La Salle County sentenced him to a term of from 5 to 15 years in the penitentiary. On this appeal the only assignments of error relate to the closing argument of the State's attorney and the jury instruction on accountability.

Defendant was charged with the burglary of a private residence in La Salle, Illinois. The testimony of two police officers established that the defendant and two accomplices were apprehended in or near the home of Paul Khoury. One accomplice, Damian Runde, was caught as he fled from the area and the other accomplice, Michael Holt, was found in a closet in the bedroom of the Khoury residence. The defendant was found lying under a bed with an automatic pistol within his reach. A door to the home had been pried open and several drawers had been ransacked. A third officer testified a car registered in the name of defendant was found 1 1/2 blocks from the Khoury residence and the defendant and his two accomplices all resided at the same address.

Prior to the burglary, the defendant had been questioned by local law enforcement authorities about a number of burglaries that had occurred in the La Salle County area. At the time of the questioning the defendant was on parole from two earlier convictions for robbery. By residing with Holt, a known felon, the defendant was violating the terms of his parole and the defendant testified he was threatened with a parole violation unless he cooperated with police in providing information about the burglaries. Defendant provided the police with some information but was unable to provide any information as to the location of the stolen articles. While testifying in his own defense, the defendant stated he did not intend to commit a theft in the Khoury residence, but rather that pursuant to a prior agreement with the Peru city police, he was merely accompanying the other suspects in an attempt to obtain information as to the location of the goods stolen in the earlier burglaries. In rebuttal, the State called the Peru city police officer who had allegedly made the agreement with defendant. The officer denied the existence of any such agreement with defendant.

During the initial portion of the final argument, the prosecutor made the following statements:

"Now then, even if you were to accept — even if you were to accept this very improbable, impossible story of James Lusietto, he would still be guilty of the crime because nobody ever asked him to commit a burglary."

At two different times during the remainder of the final argument the prosecutor made similar statements.

"Even if you were to accept his story, he would still be guilty.

But, he would still be guilty even if you believed every word he said, which I certainly do not expect you to do."

The opening statement of the prosecutor's rebuttal argument conveyed the same thought.

"Ladies and Gentlemen, I will repeat once more that even if you were to accept Jim Lusietto's story, as impossible as it is, he would still be guilty of the crime as charged."

The instruction which defendant claims was improperly given is the IPI Criminal Instruction No. 5.03. This instruction is based on paragraph two of the Illinois statute on accountability (Ill. Rev. Stat. 1975, ch. 38, par. 5-2). This section of the Criminal Code states, in pertinent part:

"A person is legally accountable for the conduct of another when:

(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such a commission, he solicits, aids, abets, agrees or attempts to aid, such other ...


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