Appeal from the Circuit Court of Cook County; the Hon. Harry
Schrier, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Juan Santiago, was charged in an information with murder. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1.) In a jury trial defendant was found guilty of voluntary manslaughter and was sentenced to serve an extended term of 14 years in the Illinois Department of Corrections.
On appeal, defendant contends: (1) that he was not proved guilty beyond a reasonable doubt of voluntary manslaughter; (2) that the trial court erred in refusing to instruct the jury on the offense of involuntary manslaughter; (3) that defendant was prejudiced by the State's failure to timely disclose the criminal history of a witness which revealed that the witness had been seen by a psychiatrist and had been found to be unreliable and irresponsible; (4) that the trial court erred in questioning the jurors regarding their numerical division and in ordering them to continue deliberations after the court knew that the jury was divided in favor of a guilty verdict; (5) that defendant was prejudiced by testimony of a former assistant State's Attorney that he had the responsibility to determine whether criminal charges were meritable; (6) that defendant was prejudiced by certain remarks of the prosecutor in closing argument; and (7) that an extended-term sentence was improperly imposed.
Defendant was charged with the murder of David Pifer, who was killed in a fight between present or former members of two rival street gangs, the Ridgeway Lords and the Archdukes, during the early morning hours of June 26, 1977. Pifer did not belong to any gang but had a number of friends who were Archdukes.
James Banfi, president of the Noble Knights street gang, testified that he met defendant and several of his friends, all of whom were Ridgeway Lords, in front of Richard Gender's home at 2624 So. 61st Avenue in Cicero on the evening of June 25, 1977. Banfi identified them as "Sinbad" (Scott Leituri), "Rusty" (defendant), Hector Padilla and Russell Radek. Banfi stated that Hector Padilla was in possession of a small .25-caliber handgun. Banfi saw Radek hand a 9-millimeter pistol to defendant who placed it inside his pants under his shirt. Banfi identified People's Exhibit No. 3, a 9-mm. pistol, as the same weapon he had seen Radek give to defendant. Banfi then went inside the house.
Some time after Banfi went inside, James (Jim) Grzetic, his brother Jeff Grzetic, Ron Frank, Wayne Perepechko, Don Lanassa and David Pifer drove to Gender's home to retaliate for an incident which occurred a few hours earlier at an abandoned gas station near the Gender residence. In that earlier incident, which did not involve defendant, a group of Ridgeway Lords had "slapped around" Jim Grzetic, Perepechko and Lanassa. When they went to Gender's home, Jim Grzetic carried a baseball bat with him and Ron Frank took a hammer and a piece of lead pipe. Grzetic and Frank testified in a prior proceeding that they were not armed. Frank also failed to tell the Cicero police that he and Jeff Grzetic, who had a pocket knife, were armed. Jeff Grzetic and Ron Frank were former members of the Archdukes street gang. Jim Grzetic denied that he ever belonged to the Archdukes and there was no evidence that either Perepechko or Lanassa was an Archduke.
When the Grzetics and their friends arrived at the Gender home, Jim Grzetic saw the same persons he had encountered earlier at the abandoned gas station. Jeff Grzetic and Ron Frank approached the five or six persons who were standing in front of the house and Jeff challenged one of them, Scott Leituri, to a fight. After a few minutes of conversation, another Ridgeway Lord yelled "Lord Love" and struck Jeff in the upper left side of his rib cage with a baseball bat. At this point about 15 or 20 persons ran out of the Gender home armed with baseball bats and canes. Jeff Grzetic testified that two of the persons, whom he could not identify, had guns. Defending himself, Jeff Grzetic stabbed three or possibly four persons with his 3-inch pocket knife. During the course of the fight, Jeff Grzetic was also struck in the head with a baseball bat.
Jim Grzetic testified that he hit one person with his baseball bat, dropped it and ran north towards 26th Street when he saw "two guys run into the house after somebody shouted to go get the piece." Jim Grzetic, Ron Frank and Wayne Perepechko all testified that Don Lanassa and David Pifer were not armed and were not close to the group that was fighting. Jeff Grzetic did not see Pifer at the scene. After Jeff was struck in the head, Ron Frank came to his assistance. Both Jeff and Frank heard gunshots and ran north on 61st Avenue towards an alley near 26th Street. As they were running, both men heard several more shots but did not see who was shooting.
Shortly after the fighting began, someone came to the basement window of the Gender residence where James Banfi was shooting pool and shouted, "There's a fight." Banfi exited the home and saw Pifer who was standing, unarmed, approximately 15 to 20 feet from the crowd. Pifer was coming toward the crowd but was not fighting. Banfi was pushed to the ground and then heard two gunshots. He did not know who was shooting. Banfi stood up and started to run across 61st Avenue. As he was running, he saw defendant in a kneeling position facing north towards 26th Street firing a pistol. Defendant was firing the same gun Banfi had seen Russell Radek hand to him earlier, People's Exhibit No. 3. Banfi almost ran into defendant as defendant was shooting and passed behind him. As he approached defendant, Banfi saw the left side of his face and recognized him as the person who had introduced himself earlier to Banfi as Juan Santiago. Defendant was wearing a light-colored sleeveless T-shirt and khaki pants. The lighting conditions in the area were very good. Banfi also observed David Pifer running north on 61st Avenue towards 26th Street but did not see him struck by any bullets.
Banfi admitted on cross-examination that he gave a statement to the Cicero police in which he said:
"I heard the shots, about four or five, and I ran and I almost knocked the guy down who was shooting. He was kneeling on the ground and I didn't even stop to see what he looked like.
I saw Russell Radek earlier in the evening with the gun. The small guy was carrying a .25 automatic. Hector Padilla had a .25 automatic in his pocket.
I took off and a few of the guys chased me but I ran.
Now that I think of it, the guy with the squeaky voice had the .9 millimeter, Juan Santiago."
On direct examination, Banfi testified that in talking with defendant he noticed that defendant had a "squeaky voice" and sounded "like he had a strep throat, * * *." Two other witnesses for the State testified that defendant talked in a low, soft whisper.
Michael Masalski, who at the time of the incident was a good friend of defendant, testified that he also saw defendant shooting a pistol north towards 26th Street. Defendant was crouched on one knee behind a parked car on the east side of 61st Avenue with his hands braced on the trunk of the car. Masalski stated that defendant fired seven or eight shots in rapid succession from a 9-mm. semi-automatic Belgian Browning pistol. Masalski saw someone running towards 26th Street while defendant was firing but did not see anyone get hit by the gunfire.
Masalski had driven to the party with defendant, Tony Gallo, Frank Padilla, Billy Fabsic and the owner of the car, Joe Roos. When he was inside the car, Masalski observed defendant load approximately 13 bullets into a 9-mm. pistol. He identified People's Exhibit No. 3, a 9-mm. pistol, as the one defendant used on June 26, 1977. Joe Roos, a defense witness and a friend of defendant, testified that he had a 9-mm. pistol in his automobile and had shown it to defendant on another occasion. Defendant knew the weapon was in the car. Roos admitted that People's Exhibit No. 3 was the same weapon.
Masalski testified that defendant was a Ridgeway Lord on the night he saw defendant firing the pistol. Masalski also stated that during the course of the trial, defendant threatened to kill him if he testified against him.
Masalski did not give a statement about the case to the Cicero police until one week before the trial. Masalski had attempt murder and armed robbery charges pending against him during defendant's trial but denied that any promises had been made to him in exchange for his testimony. He also denied being a Ridgeway Lord.
Jim Grzetic testified that after he began running north on 61st Avenue towards 26th Street he heard two or three shots being fired from across the street. He could not identify the shooter. Jim Grzetic had taken about 10 steps when he saw David Pifer who was also running from the scene. Moments later, Grzetic heard "a couple more shots" and Pifer said, "I'm hit," and fell forward on the street. In a prior statement to the police, Jim Grzetic stated that he had seen Pifer leaning against Ron Frank's Cougar after he had been shot. Grzetic admitted that this would have placed Pifer not near the alley but approximately 100 feet south of the alley at the time he was shot.
Jim Grzetic did not see any blood on Pifer. At the same time Pifer said that he had been hit, Jim Grzetic felt a tingling sensation in his leg and realized that he had been struck by a bullet. Grzetic turned around but could not determine from where the bullet had been fired. Grzetic managed to reach his aunt's house and was later taken to MacNeal Hospital. Grzetic said that Pifer fell near the intersection of 61st Avenue and an alley just south of 26th Street. The alley was approximately five houses north of the Gender home.
As Ron Frank and Jeff Grzetic reached the alley, Frank saw David Pifer standing near the alley, bleeding. Jeff Grzetic was taken to West Suburban Hospital for treatment of his injuries. He told the emergency room physician that he had fallen down some stairs. He did not tell the hospital personnel about the fight because he "was scared" and "didn't want to get involved." He admitted that at the time of the incident he was on felony probation for two burglary convictions. He also admitted lying to the police when he told them that he had not stabbed anyone. Jeff Grzetic did not tell the police what had happened until after he spoke with representatives of the State's Attorney's office but denied that he had been granted immunity or promised any consideration by the State in return for his testimony.
Contrary to testimony he gave at a prior hearing, Ron Frank admitted at trial that he had been a member of the Archdukes. He stated that he left the gang "just before this incident happened." Frank admitted that he lied to the Cicero police when he told them he did not know any of the participants in the fight and did not see anyone get stabbed. Frank explained that he failed to tell the police that both he and Jeff Grzetic were armed because he was afraid of gang retaliation and because his "very good friend" Jeff was on probation.
Wayne Perepechko testified that he had seen David Pifer standing in the middle of 61st Avenue in front of the Gender residence. Pifer had no weapon. Perepechko heard yelling, saw people running and fled from the scene. As he left he heard gunshots. Perepechko admitted that he had previously denied under oath seeing Pifer in the area of the altercation and hearing shots.
After Pifer had been shot, Hector Padilla and Billy Fabsic pursued him down the street. Padilla ran over Pifer with Ron Frank's Cougar and Fabsic beat him with a cane. There was no evidence that defendant was present at this time. Pifer was found by Officer Robert Wegge of the Cicero Police Department, who rushed him to MacNeal Hospital. Wegge did not find any weapons on Pifer's body.
Investigator Joseph Bax of the Cicero police attempted to interview David Pifer in the emergency room at MacNeal Hospital. By moving his head up and down or from side to side, Pifer indicated in response to Bax' questions that he knew and could identify but was not able to name the person who had shot him. Pifer responded affirmatively when Bax asked him whether his assailant was a member of the Ridgeway Lords. Pifer then lost consciousness and died at 4:07 a.m. on June 26, 1977.
Christopher F. Jagiello, an evidence technician with the Cicero Police Department, spoke with defendant at 7 a.m. on June 26, 1977. Defendant told Jagiello that he could show him and another officer where he had seen the shooter the previous evening. Defendant directed them to 2617 So. 61st Avenue which is located on the east side of the street and slightly north of the Gender residence at 2624 So. 61st Avenue. Defendant told Jagiello that the shooter had stood near a service walk in front of 2617 So. 61st Avenue and had held his weapon in a two-handed grip pointing north towards 26th Street. Approximately three to four feet from where defendant said the shooter had stood, Jagiello found nine expended 9-mm. shell cases and one live 9-mm. round.
While they were at the scene, defendant told Jagiello that he did not know the name of the shooter but said that he was 5'10" tall. Defendant said that after firing his weapon the shooter fled east through a hallway between 2617 and 2619 So. 61st Avenue towards an alley near Austin Boulevard.
Defendant was taken back to the police station at 7:30 a.m. and Jagiello returned to the scene with other men to look for additional firearms evidence. Although they found no other shell cases, the police did find a fresh bullet hole in a stop sign on the southeast corner of 61st Avenue and 26th Street and a bullet jacket and fragments from a bullet which had passed through the window of a beauty shop located on the northwest corner of 61st Avenue and 26th Street. Additional bullet fragments were recovered from the left front tire on Ron Frank's Mercury Cougar. In Jagiello's opinion, the crime scene showed the presence of only one weapon, a 9-mm. pistol.
At approximately 10 a.m. on June 26, 1977, defendant gave a handwritten signed statement to Officer Jagiello and Investigator Leo Warner. Jagiello published the statement (People's exhibit No. 29) to the jury.
In that statement defendant said that he saw a tall thin man standing in the middle of 61st Avenue pointing a gun at a crowd of persons. The man started shooting in all directions and defendant ran from the scene after one of the man's friends hit defendant with a baseball bat. Defendant described the shooter as 5'10" tall, thin build, neat, short cut hair, neat clothes, and approximately 23 or 24.
Together with three other officers, Jagiello interviewed defendant again on June 26, 1977, at approximately 4 p.m. Defendant told the officers he could show them where the shooter had discarded his weapon and directed them to 2619 So. 61st Court. Defendant took Investigator Bax and assistant State's Attorney James McCarter to some flower bushes in the backyard of 2619 So. 61st Court where Bax found People's exhibit No. 3, a 9-mm. Browning semi-automatic pistol. The gun was recovered in an area that is due west of 61st Avenue and thus in the opposite direction from ...