APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 21, 1982.
This is defendant's second appeal from a murder conviction for which he received 25 to 75 years' imprisonment. In the first appeal, People v. Trolia (1979), 69 Ill. App.3d 439, 388 N.E.2d 35, we reversed and remanded for a new trial finding that the State failed to disclose a material, potentially exculpatory statement by defense witness, Rebecca Lavin, which was in police possession during the trial. In this appeal, defendant presents these issues for review: (1) the trial court's denial of his pre-trial motions deprived him of a fair trial; (2) he was not proven guilty beyond a reasonable doubt; (3) the trial court's refusal to grant a continuance was an abuse of discretion; (4) the trial judge's failure to recuse himself or to grant a motion for substitution of judges for cause was reversible error; (5) it was reversible error for the court to deny defense motion in limine barring the prosecution from impeaching Rebecca Lavin with her 1980 conviction; (6) his right to effective cross-examination was unduly restricted; (7) it was error to admit his prior testimony from the first trial as a judicial admission and then to allow impeachment on a collateral matter; (8) he was not allowed to call certain witnesses; (9) the failure to give a tendered instruction by defense was prejudicial error; (10) it was error to restrict defense counsel's closing argument to one hour; and (11) the prosecutor's closing argument was inflammatory and prejudicial. The pertinent facts follow.
Patrick Castellaneta testified that he was part owner of the Godfather Lounge where the deceased, Paula Popik, had been employed for approximately three months. On August 31, 1974, he worked at the lounge from 6 p.m. to 4 a.m. and Paula worked the front bar from 8 p.m. to approximately 4 a.m. She was wearing a black halter top and hot pants. She was paid in cash at 4 a.m. and he never saw her again, although she was scheduled to work the following day. Paula's brother came in on September 3, looking for her.
Linda O'Neill testified that in August 1974 she worked at the On-The-Rocks Lounge. On August 31, 1974, she worked at the lounge from 10 p.m. to 5 a.m. the next day. She saw defendant at about 4:45 a.m. in the bar with a young lady who was wearing a black halter top and dark pants.
She arrived home from work at approximately 5:30 a.m. and was awakened by defendant knocking on the door at about 8:30 a.m. asking if he could stay. He went to the couch, and she went back to bed.
She saw Paula's photo in a newspaper approximately two weeks later. She identified the photo as being a picture of the girl she saw with defendant. Police first contacted her in December 1974 about the Popik murder. She tried to protect defendant but later decided to tell the truth to assistant State's Attorney Ficaro, with whom she had attended grammar school.
On cross-examination, Linda stated that when defendant arrived at the house she neither smelled gasoline on him or saw any bloodstains on his clothing. She did not see defendant and the girl in a group that night and did not see them leave. She also stated that Investigator Leubscher made threats to take her kids away and that she would do almost anything to protect her children.
Thomas P. O'Neill testified that he is the husband of Linda O'Neill. Defendant came to their house between 6 and 6:30 a.m. and asked if he could sleep there. Linda woke him up to ask if defendant could stay. Richard "Animal" Maskas also spent the night at the O'Neill household. After they all got up that morning, they went up north to buy some drugs.
O'Neill next saw defendant the following Tuesday. Bob Holwell was also there. Defendant told them that he shot a Mexican and a girl. O'Neill also thinks defendant said he threw the girl over a bridge and got rid of her car. Holwell asked defendant where he got the gun and he replied that he got it from "Animal" Maskas. O'Neill agreed to be defendant's alibi.
On September 12, 1974, at the On-The-Rocks Lounge, O'Neill told defendant that he could not be his alibi. Defendant then confessed that there was no Mexican, just a girl. O'Neill was questioned by police on September 19, 1974, and told police defendant was not by his house on August 31. A few days later his wife noticed a picture in the paper of the slain girl who was with defendant.
On cross-examination, he testified that defendant did not state that he had burned Paula's car. He also stated that Investigator Leubscher had threatened to charge him with conspiracy to commit murder. Further, he lost his job and implied that Leubscher's frequent visits to question him might be the reason.
Robert Holwell testified that on September 1, 1974, defendant, the O'Neills and "Animal" Maskas were at his house. Defendant indicated at that time that he needed an alibi but he did not elaborate. On September 3, defendant told him and Tom O'Neill that he had killed a Mexican and a girl and had dumped their bodies in the river, burned a car, and walked to the O'Neills'. Defendant indicated that he had gotten the gun from "Animal" and returned it.
On September 11, 1974, Holwell saw his brother, a police sergeant, who stated that a girl's body had surfaced and asked him what he knew. He told his brother that there had been a dope ripoff and two people had been killed and had been thrown in the river. He told his brother to get in touch with "Animal" for more information. When he met O'Neill and defendant at the On-The-Rocks Lounge the next day, he told defendant he could not provide an alibi.
Holwell admitted that he had lied to the police to protect himself. He also believed that telling his brother about "Animal" and the gun would lead to defendant.
Michael Corbett, police chief of Willow Springs, Illinois, testified that he and Sergeant Steve Scarno recovered Paula's body from the Des Plaines River on September 6, 1974. Her body was unclothed except for a black halter top around her neck and two black high heel shoes on her feet. He also observed a tattoo on the lower right abdomen. He indicated that when he put a rope around the arms of the body, they were limp.
William Dado, an evidence technician, testified that in observing the body, it showed signs of bloating in the face and abdominal region, discoloration throughout the torso and extremities of the body, and skin slippage throughout the entire body. He also noticed a puncture-type wound to the right temple area at the hairline, a laceration of the right cheek area, the bridge of the nose and on the upper lip. He did not notice any rigor mortis.
David Brundage is a firearms examiner for the Illinois Department of Law Enforcement. He examined certain bullets removed from the body of decedent and concluded that they could have been fired from the gun introduced into evidence, but there were insufficient individual characteristics.
Dr. Joseph Claparols, a pathologist, testified that he conducted an autopsy on Paula and completed a protocol. An examination of her body revealed the palms of her hands and the soles of her feet were wrinkled and white from immersion in water. The skin of her body showed desquamation caused by blistering and peeling of the superficial layers of the skin. There was a reddening of her external genitalia. He did not record any bloating of the skin in the neck area. He observed lacerations on the face, on the bridge of the nose, right cheek and left upper lip. He also saw a fracture of the nose. Those injuries could be pre-mortem but most of the bloating is post-mortem. There was a pink staining of the inner lining of the heart, caused by breakdown of hemoglobin. This stain was post-mortem. It was his opinion that the cause of death was a bullet wound to the head, with laceration of the brain.
On cross-examination, he stated that he did not actually weigh or measure the body and that his protocol indicated minimal rigidity of the lower extremities.
Sworn testimony of defendant was then read to the jury from the May 10, 1976, trial. That testimony indicated that defendant went to a wrestling match on August 31, 1974. He denied he knew Paula or that he saw her in the tavern. He also denied having borrowed the gun from "Animal."
Leo Breen, Chicago White Sox treasurer, testified that business records of the White Sox indicated that a baseball game took place the night of August 31, 1974. A wrestling match was held at Comiskey Park on September 7, 1974.
Dr. Cedric Keith Simpson, a pathologist and professor of forensic pathology, testified that in his opinion it was impossible for Paula to have been killed on September 1. He estimated that she died between September 3 and 4 after reviewing various materials concerning the decedent, including a factual summary, the protocol and numerous photographs.
Dr. Simpson noted that the protocol stated "external examination shows minimal rigidity of the lower extremities," the cause of which is rigor mortis which begins in the face and gradually works its way down the body. It passes the same way with the entire process generally taking between 30 and 36 hours. He also stated that her eyes looked quite white in the photographs he examined, and had she been in the water 5-6 days, they would have looked almost purple. Further, he noticed that the degree of decomposition was slight, as evidenced by the early stages of marbling, the lack of discoloration in the flanks, and the lack of distension of the abdomen.
On cross-examination, he testified that he did not observe bloating in the region of the face but rather swelling due to pre-mortem injuries. He also stated that he had not previously seen a live photograph but that he didn't need to in order to know that her body did not look bloated.
Dr. Russell Fisher, chief medical examiner of Maryland and professor of forensic pathology, testified in rebuttal that he agreed with Dado's observation that when the body was recovered rigor mortis had passed. According to Fisher, the signs of decomposition included advanced softening of the surface of the body, swelling and bloating of the face and neck, discoloration of the skin, the falling apart of the brain, and in particular the brain stem being torn off, all of which was consistent with the decedent having died on September 1.
Dr. Robert Stein, chief medical examiner of Cook County, testified that based upon his examination of the photographs and protocol, the body had been dead for 2 to 3 days when it was found. Stein did not find putrefaction of the brain, pancreas, liver or stomach. He also did not find any bloating and noted that the black eye he observed was a pre-mortem injury.
On cross-examination, Stein stated he was given some written reports and some verbal ones from defense attorneys and he was not shown a live picture of decedent. He did not see the toxicology report and he was not shown Dr. Claparol's testimony.
Defendant first contends that the trial court's denial of his pretrial motions violated his constitutional rights. He argues that his motion for discharge on the grounds of double jeopardy by virtue of prosecutorial overreaching should have been granted. He supports this charge by alleging that the prosecution (1) concealed Rebecca Lavin's statement that she had seen Paula alive on September 3 until after the first trial was over, (2) suborned perjury, particularly from three key State witnesses, and (3) practiced a deception in presenting and arguing the medical testimony at trial.
The double jeopardy clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." When a court has acquitted a defendant of the offense charged, this principle is controlling. (Arizona v. Washington (1978), 434 U.S. 497, 54 L.Ed.2d 717, 98 S.Ct. 824.) However, reprosecution for the same offense is permitted where defendant wins a reversal on appeal of a conviction. The determination to allow reprosecution upon reversal "reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. * * *. For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal." (United States v. Jorn (1971), 400 U.S. 470, 484, 27 L.Ed.2d 543, 556, 91 S.Ct. 547, 556-57.) By statute in Illinois, reprosecution is allowed "if subequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction." (Ill. Rev. Stat. 1979, ch. 38, par. 3-4(d)(2).) This provision is in accord with judicial decisions. People v. Benson (1962), 24 Ill.2d 159, 180 N.E.2d 482; People v. Keagle (1955), 7 Ill.2d 408, 131 N.E.2d 74.
Defendant's allegations of prosecutorial overreaching is not supported in the record before us. The Lavin statement which defendant did not possess at the first trial was available at his second trial; thus it appeared to be a matter of trial strategy that Lavin was not utilized as a witness at the second trial. Likewise, the suborned perjury allegation is not supported in the record before us. Furthermore, testimony concerning the time of decedent's death was elicited from a number of witnesses, both lay and medical, and not necessarily an example of prosecutorial overreaching for failing to ask the pathologist the time of decedent's death. In any event, defense did have the opportunity on cross-examination to elicit this information.
• 1 We believe the double jeopardy clause is inapplicable as support for this motion and thus it was properly denied and reprosecution properly allowed.
Defendant also asserts that his motion for discharge by reason of the denial of the right to a speedy trial ought to have been granted. The sequence of dates enumerated by defendant to support this charge are:
June 2, 1976 Lavin statement found July 14, 1976 Motion for new trial denied February 9, 1978 Post-trial relief denied February 23, 1979 Appellate court reversed conviction May 31, 1979 Supreme Court of Illinois denied State's petition for leave to appeal October 9, 1979 ...