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People v. Bertucci

OPINION FILED FEBRUARY 15, 1980.

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

v.

MICHAEL BERTUCCI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS B. GARIPPO, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant was charged by information with the murder of Anthony Le Bar and following a jury trial was found guilty of voluntary manslaughter. (Ill. Rev. Stat. 1975, ch. 38, par. 9-2(b).) He was sentenced to a term of from 3 to 15 years imprisonment. The sole issue before us is whether the trial court erred in refusing to instruct the jury on the credibility of an alleged accomplice who received a grant of immunity from prosecution from the State.

The following pertinent evidence was adduced at trial.

Robert Koznetzow

In 1963 he was convicted of committing indecent liberties with a child and at the time of trial, faced a charge of obstruction of justice. He accompanied defendant in early May of 1976 to a Blue Island gun shop where defendant ordered a blue steel automatic handgun.

On May 18, 1976, at 12:30 a.m., he met the defendant who was driving a 1967 or 1968 Buick, and they drove in the defendant's car to Shag's tavern located in the 3400 block on South Wallace Street in Chicago. After parking the car in the tavern's parking lot, they began to walk to a lot north of the tavern. Both the lot and the tavern were owned by a Mr. Schillace. He told the defendant he left a bicycle chained to a tree near the Schillace garage on the lot and he wanted to check on it now.

Moments after he and defendant reached the lot, Robert Schillace, a son of the tavern owner, and two other men arrived. Schillace had what looked like a sawed-off pool cue or stick in his hand, and one of the other men also held an object in his hands. When Schillace asked him if he was trying to break into the garage, he told Schillace that he was checking on his wife's bike. He further told Schillace that he had spoken to Schillace's father about the bike and that he believed one of Schillace's younger sons was responsible for the theft of parts of the bicycle. They decided everyone should return to the tavern where this explanation could be verified. They began to walk back to the tavern. Defendant and the other two men walked in front of him and Schillace. As they approached the tavern, he heard gun shots coming from in front of him. Walking forward he saw Anthony Le Bar lying on the ground holding his stomach, but he did not see the defendant. He then walked back to the alley behind the tavern where he found defendant in the car. He asked the defendant what happened, and the defendant replied: "The man should never have grabbed me." They left together in the defendant's car.

At approximately 9 p.m. on May 18, he again talked with defendant who told him he was leaving for Michigan. Within the next hour he was arrested by the police and charged with the murder of Anthony Le Bar. The police took him to the station where he was interviewed by an assistant state's attorney and gave a signed statement concerning the shooting. A preliminary hearing was held in June, and the court entered a finding of no probable cause. Three months later, the State granted him immunity from prosecution in exchange for his testimony in this case.

On cross-examination, he stated that he did not tell the defendant about his wife's bicycle until they reached the tavern's parking lot. He did not have a gun that evening and was unaware that defendant was carrying a gun. Neither he nor defendant attempted to break into Schillace's garage. He saw Anthony Le Bar throw the defendant against the wall before he heard the gun shots. According to his signed statement, he didn't see a weapon in Le Bar's hands.

He stated that he was given immunity from prosecution in exchange for testifying in this case consistent with his signed statement. In addition, the State gave him $400 as a moving expense prior to trial. He denied having been promised immunity in exchange for his signed statement. But he admitted that at the preliminary hearing he testified that on May 19, 1976, an assistant state's attorney promised him immunity if he testified in this case.

Robert Schillace

His father is the owner of Shag's tavern. On the night of May 17, he was the bartender in Shag's tavern. At approximately 1 a.m. a neighbor entered the bar and told him that someone was breaking into his father's garage. He, Anthony Le Bar and Dale Lacy left the tavern to investigate. He had a club in his hand, but Le Bar and Lacy were unarmed. As they approached, he saw Koznetzow and another man by the garage. The other man, who stood six feet one inches and weighed 220 pounds, was wearing Levi pants, a black leather jacket and sunglasses. He asked Koznetzow what he was doing, and Koznetzow answered that he was attempting to get his bike out of the garage. Koznetzow added that Mr. Schillace, the witness' father, could verify his story. He decided they should return to the tavern and check with his father. On their way back to the tavern, Le Bar and the other man walked in front of him and Koznetzow with Lacy following everyone. The other man walked past the tavern and he asked him where he was going. The other man said: "Call your brother Sam, he will verify it." Le Bar said to the other man: "You heard the man, didn't you?" Le Bar "went for the man" and then gunshots rang out. Le Bar fell to the ground. He told the other man, who had turned toward him, to be "cool" with that gun. At that moment a metal object, thrown by Lacy, flew over the other man's shoulder. The other man responded by firing the gun in Lacy's direction. He then ran to the tavern and called the police.

When the police arrived, he was taken to the station to view some photographs. He identified photographs of Koznetzow and defendant. However, he told the police he could not be sure that defendant was the person who shot Le Bar without seeing him in person.

On cross-examination, he admitted that at the preliminary hearing he did not testify about identifying the photograph of defendant nor did he identify defendant in the courtroom. On the night of May 18, he knew nothing of Koznetzow's bicycle or the alleged theft of its parts. It was at Le Bar's urging that they went out to ...


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