APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
J. PETERS, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 11, 1980.
Following a joint bench trial with co-defendant Jack Cozzi (Cozzi), defendant Daniel Duarte (Duarte) was found guilty of the murder of Patrick Garrison and sentenced to 14 to 20 years in the penitentiary. Defendant Duarte appeals contending (1) that the trial court committed reversible error (a) in denying his motion to suppress the in-court identification testimony of the State's sole occurrence witness, and (b) in excluding testimony of a statement made by co-defendant Cozzi on the basis of the attorney-client privilege, and (2) that the State failed to prove him guilty beyond a reasonable doubt. The following testimony was adduced at trial.
Detective James Caliendo testified that on February 23, 1976, at 11:25 p.m., he arrived at the well-lit scene of the occurrence in front of Bambi's Lounge at 2809 74th Avenue, Elmwood Park, Illinois. In the middle of the street he found a 1969 Oldsmobile Cutlass with its windshield and windows on both sides smashed in. Patrick Garrison was found lying across the front seat. The parties stipulated that Garrison's skull had been fractured by either one substantial blow or a number of blows, with the probability of a single blow greater than the probability of a number of blows. Caliendo recovered a blond bat from a gangway adjacent to Bambi's and a dark bat from the back seat of the car.
Patrick Elliot testified that on February 23, 1976, he lived directly across the street from Bambi's Lounge in the first floor apartment at 7404 West Diversey, Elmwood Park, Illinois. At 11:07 p.m., Elliot was in his darkened bedroom when he heard tires squealing and someone say, "You mother fucker son of a bitch." He then went to the bedroom window which was open about four inches. Since the window shade was pulled down to the sill, he knelt down and looked through the four-inch opening and saw a 1969 Oldsmobile in the middle of the street about 55 feet away with its headlights off. Elliot then saw three people carrying bats walking fast on the east side of the street toward the car. The first man whom he later identified as co-defendant Cozzi hit the hood, the left side of the windshield, and the driver's side window with a light-colored bat and then thrust it through the window. Elliot then saw a second dark-haired person wearing a dark coat and black levis put his right hand on the hood of the car and catapult his body over the front on the passenger side. Elliot further testified that this second person, whom he later identified as defendant Duarte, struck the passenger side windshield with a dark-colored bat several times, crawled into the passenger's side of the car, stayed 10 to 15 seconds, and then crawled out. Elliot could not see inside the car as the inside light of the car was not on. The third person, described only as wearing an orange or tan sports coat, walked toward the back of the car and away. In a statement later given to the police, Elliot stated that when a fourth man came out of the bar and talked to co-defendant Cozzi, everything stopped. After calling to his wife, Elliot returned to the window and saw a dark-colored car pull away from the east side of the street and turn onto Diversey. He also saw a white Buick with a white interior pull out of the gas station and head east on Diversey passing the police as they arrived.
Elliot further testified that he saw the offenders for approximately one to two minutes, that he attempted to call the police while he was watching them, that the offenders were in motion throughout the time, and that his view was unobstructed. Although Elliot testified that there was no lighting from the gas station next door to Bambi's, and that he could not recall whether the gaslights on Bambi's were lit, he also testified that the Miller High Life sign hanging on the lounge was a strong light source and that there were two streetlights, one on the southwest corner of 74th Street and another on the southeast corner of 74th Street and Diversey which hung over Diversey. The parties stipulated that the moon was not visible at the time in question. At the police station that night, Elliot described the first person (co-defendant Cozzi) as being 5'11", weighing 165 pounds, with light hair and a mustache. He described the second person (defendant Duarte) as 5'10", weighing 150 pounds with dark hair. In a statement given sometime later, Elliot described the first person as 6'1", but didn't describe the second person. In the courtroom Elliot estimated defendant Duarte's height as 5'6" or 5'7". The defendant testified that he was 5'4".
Detective Caliendo further testified that co-defendant Cozzi was taken to the police station at about 6:30 a.m. on February 24, 1976, where he was identified in a lineup by Patrick Elliot as the first person. Elliot corroborated Caliendo's testimony as to his identification of Cozzi. Caliendo further testified that at 9 p.m. that night Cozzi told him that he and Duarte had seen an altercation in front of Bambi's with one of their friends, that they had picked up the light-colored bat, and that he was not going to take a murder rap alone. The trial judge stated that he would not consider this statement as evidence against defendant Duarte. On February 25, 1976, at 5:40 p.m., detective Caliendo then went to defendant Duarte's home where he saw him drive up in a white 1975 Buick with a burgundy half-roof and a white interior. Duarte was then arrested, taken to the station, issued an I.R. #, and photographed in the investigation office at about 6 p.m. Detective Caliendo then contacted Patrick Elliot who arrived at approximately 7 p.m. according to Elliot's testimony, when Duarte was in the detention lockup located approximately 15 feet from the main interrogation room. Caliendo did not see Elliot when he entered the police station. Caliendo met Elliot in his office and gave him a mug-shot book containing 30 pages with four pictures per page with the exception of the last. On the last page there were three pictures: defendant Duarte's, bearing the date of February 25, 1976, Cozzi's, and a third unknown picture. According to Caliendo, Elliot selected the defendants' pictures, and then walked to the back of the main interrogation room where he saw Duarte being processed.
Elliot corroborated Caliendo's testimony as to his identification of defendant Duarte from the mug shots. He further testified that he did not notice the date on the defendant's picture, and that he had seen the defendant in the station after he had viewed the mug book. When requestioned on cross-examination as to whether he had seen the defendant before or after viewing the mug book, Elliot responded, "I saw him before I looked at the mug book, before I saw him on February 23."
Six other persons were arrested the night of February 23, 1976: Andrew Dobis, Thomas Capotosto, Dominick Marzovilla, Ronald Deland, Carmen Rossi, and George Buttacavoli. Dobis, Capotosto, Marzovilla, and Deland testified for the State at the defendant's trial.
Andrew Dobis, the bartender at Bambi's Lounge, first testified that he saw defendant Duarte and co-defendant Cozzi in the bar near the foozball machine at about 11 p.m. with Ronald Deland, Ron's girl friend, and another couple. However, on cross-examination, Dobis testified that the defendants had come into the bar at about 10 p.m., had left 10 minutes later, and were not to be seen again. Dobis further testified on cross-examination that Deland had come into the bar with three other people at 9:45 p.m. and had left just before 11. Although Dobis testified that one of Deland's friends had bought some candy from a girl at about 10:30 p.m., he did not recall being questioned by Deland about some missing money after the purchase. Between 10:30 and 10:45 a Mr. Steer and a friend, and Marge and Ray (Muraski) came into the bar. At about 11 p.m., after Deland had left and just before the police arrived, Dominick Marzovilla came into the bar with George (Buttacavoli), Tom (Capotosto), and Carmen [Rossi]. Dobis further testified that although a neon pizza sign in the window of the bar facing the street was lit, the illumination from it was not very good and he couldn't see anything out of the window. Dobis didn't hear any commotion outside all evening and was first aware of the occurrence when he saw the police placing Garrison's body in the ambulance.
Thomas Capotosto testified that he and his cousin Carmen Rossi drove up behind the victim's car in the middle of the street. Its engine was running and its headlights were on. Capotosto saw the victim lying in the car and a dark-blue baseball bat in the back seat. Carmen then ran into the bar. Although Capotosto knew both of the defendants, he didn't see them at all that night.
Dominick Marzovilla testified that he had left Bambi's at about 10 p.m. and had returned at 10:30 or 10:45 p.m. At 11 p.m. he saw Deland with a girl and another guy, and some men sitting at the bar. Although he knew the defendants, he didn't see them in the bar that night. Marzovilla further testified that he didn't notice anything unusual either inside or outside the bar until he went outside at about 11 p.m. and saw Deland and a couple of other people around the car. Marzovilla stated that he then picked up one of the bats. Marzovilla was arrested, gave the police a statement at about 1:30 a.m., and later took them to co-defendant Cozzi's home. He was later placed in two lineups in the early morning hours of February 24. According to Marzovilla, neither the signs nor the coach light on Bambi's were very bright. He could not recall whether the coach light was on.
Ronald Deland had known both of the defendants for several years. He arrived at Bambi's at about 10:45 p.m. with Dan Cosentino, Carol Romanelli, and Mary Ellen Setlack, and stayed about 15 or 20 minutes until shortly after 11 p.m. Although Deland was not certain that he had seen co-defendant Cozzi in the bar that night, he was certain that he had seen defendant Duarte. Deland first testified that at about 11 p.m. he heard some noise outside and saw some guys running toward the door. He then asked Dan Cosentino if he wanted to leave. Cosentino replied yes, but found his change from the candy purchase missing from the bar. Deland further testified that he first asked bartender Dobis and then asked defendant Duarte, who was sitting next to Cosentino, about the missing money. Duarte told Deland that he hadn't taken the money. Later, Deland testified that his conversation with Duarte had occurred before he heard the noise outside. Deland further stated that he looked through the bar's window and saw a man striking the passenger side window of a car stopped in the middle of the street. Although Deland told Detective Caliendo that night that the man he saw striking the car was Duarte, he testified at trial that he now knew that it wasn't. Deland testified that both the bar and the night were dark, that there were no lights from the gas station next door to the bar, that he couldn't say that the street was well lit, that it was about 50 to 60 feet between the car and the streetlight, and that there were parked cars all around. Deland was wearing a rust-colored suit that night.
Carol Romanelli testified that she came into the bar at about 10:30 p.m., and that the defendants came in a few minutes later. She testified that they were sitting there when some people came in and said there was trouble outside.
Ray Muraski testified that he and his wife Margaret came into Bambi's at about a quarter of 10 or 11 p.m. and stayed about 15 or 20 minutes. He stated that four or five people were at the foozball machine near the window, that he didn't see anyone leave, and that he didn't notice any excitement or anything going on. Margaret Muraski testified that two or three people came into the bar at about 11 p.m., and that there were two couples playing the foozball machine while she was there.
Joseph Mortimer, an employee of the Bureau of Identification of Illinois, with 30 years experience in fingerprint identification, testified that a latent palm print *fn1 found on the hood of the car did not match that of defendant Duarte. However, Mortimer further testified that 13 characteristics of a latent thumbprint found on the inside passenger door matched that of defendant Duarte. On cross-examination, Mortimer acknowledged that the prints were not identical due to the number of points of dissimilarity. A latent print found on one of the bats matched that of Dominick Marzovilla.
Philip Sylvester, an Elmwood Park police officer, was the only witness called by defendant Duarte. He testified that while on duty on February 25, 1976, he was using the washroom of the Elmwood Park police station which was immediately adjacent to the cell in which co-defendant Cozzi was being detained. Sylvester heard an individual enter Cozzi's cell and ask how he was doing. At this point in Sylvester's testimony, Cozzi's attorney renewed his objection that the conversation came within the purview of the attorney-client privilege. It was then determined that the unknown person talking with Cozzi was an attorney. The trial court sustained defense counsel's objection to the officer's testimony when the officer testified that the attorney then asked Cozzi "what happened?" Defendant Duarte's counsel then made an offer of proof that, if allowed to testify, Officer Sylvester would testify that in response to the question "what happened?" co-defendant Cozzi stated that he did it, and that "Blank was with me, but he didn't have anything to do with it." According to defendant's counsel, Officer Sylvester also would have testified that he attempted to make as much noise as possible in the washroom, that he didn't stay there any longer than was necessary, and that he reported what he had heard to the detectives in the police department.
After defendant's counsel had completed the offer of proof, the state's attorney inquired whether or not it was being accepted by the ...