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People v. Cartalino

OPINION FILED DECEMBER 28, 1982.

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

v.

JOHN CARTALINO (IMPLEADED), DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Sylvester Close, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant John Cartalino and co-defendant Robert Bridges were charged with the offenses of murder, home invasion, burglary, attempted armed robbery and armed violence. Cartalino was tried by a jury while Bridges was tried in a separate but simultaneous bench trial. The trial was structured so that the jury heard evidence intended to relate primarily to the guilt or innocence of Cartalino. The State's witnesses were cross-examined by Cartalino's counsel in the presence of the jury. Bridges' counsel cross-examined them in the absence of the jury. Questioning of defense witnesses for Bridges and Cartalino followed a similar pattern.

Bridges was found by the court not guilty on all charges. Cartalino was convicted by the jury of murder, home invasion, armed violence, burglary and attempted armed robbery. The court imposed a natural life sentence for Cartalino's murder conviction. The principal issues on appeal include whether: Cartalino was proven guilty beyond a reasonable doubt; undue emphasis was given to a prior consistent statement of an accomplice witness when the statement was allowed into the jury room; and Cartalino's life sentence was constitutionally permissible.

For the reasons which follow, we affirm.

Barbara Colgan testified for the State. She was scheduled to meet the victim's girlfriend, Joyce Roscoe, for the purpose of working as a prostitute for Roscoe. At about 3:30 p.m. on that day, she, a man named Timothy Perkins, and Bridges, drove to a restaurant located at State and Division. She left them and walked to her appointment at 17 East Goethe, Chicago. At about 4 p.m., she rang the doorbell. Donald Ewing, the victim, opened the door and she told him of her appointment with Roscoe. She entered the apartment and stood to the left so that he could close the door. The victim looked "past" her and said, "What the shit is this?" Bridges came through the door with Cartalino directly behind him. Bridges pointed a silver revolver at the victim; Cartalino wielded a black automatic pistol. Bridges pulled out handcuffs from a clear plastic bag. Cartalino and Bridges told the victim to sit down and "shut up." They asked him, "Do you want to die, motherfucker?" The victim said "I'm already dead." A growling German shepherd ran towards them but stopped at the end of the hall. Colgan "panicked" and ran out of the apartment. At an alley about 20 feet from the building she heard four shots coming from inside the apartment.

Colgan returned to Perkins' apartment. Only Marilyn Perkins, Timothy's wife, was home. At about 4:28 p.m., she looked through the window and saw Timothy Perkins running towards the house. She saw Cartalino on the driver's side and Bridges on the passenger side of a black Oldsmobile Cutlass parked on the street in front of the house. Timothy entered the apartment and had a conversation with her. She went home but did not remain there overnight. The next day she was with Marilyn and Timothy Perkins. On April 1, 1979, she had her mother call the police, spoke with various policemen at the station, and gave them the names of Marilyn and Timothy Perkins. When shown a group of males in eight black and white photographs, she identified Cartalino as the man she had seen in the victim's apartment. After giving her statement to police investigators on April 1 and 2, she was granted immunity from prosecution for any criminal matters other than perjury disclosed by her testimony.

Joyce Roscoe testified for the State. In March of 1979 she lived with the victim at the Goethe Street apartment. They were involved with call girls and sold cocaine. Marilyn Perkins worked as a prostitute for her. At about 3:30 p.m. on the day of the murder, she telephoned the victim at Irene Hyaz' apartment, asked him to go to their apartment to meet Colgan, and tell her she would be 15 or 20 minutes late. When Roscoe returned to their apartment at approximately 4:30 p.m., the door was wide open and the apartment smelled of smoke. Nothing was stolen but she found the victim lying on the floor.

Timothy Perkins testified for the State. During the second week of March 1979 he saw Bridges at his McClurg Street apartment. Bridges asked him if he knew of anybody who he could "stick up" that was "off into vice" and would not complain to police. Timothy responded that if he learned of anyone he would let him know. The Monday preceding March 29, at the McClurg apartment, Perkins told Bridges that he thought of someone Bridges could stick up and expect to find money, drugs, jewelry and possibly furs. He would try to get the address for him, which he did. He did not tell Bridges the name of the person who lived there. He told Bridges that he could not go with him because he knew the people.

Perkins later explained to Bridges that he knew Colgan had an appointment at that address on Thursday and they could probably get in by following her. He had known Colgan for a couple of weeks. At 10:30 a.m. on the day of the murder he went to Bridges' apartment. Bridges had a set of handcuffs, two ski masks and a nickel-plated revolver. Later he drove Colgan and Bridges to a restaurant at Division and State Streets. A few minutes after Colgan left for her appointment, he and Bridges began following her. Cartalino joined them and Bridges said Cartalino was going to go with him. Bridges handed Cartalino a ski mask, but neither man wore them. *fn1 They walked north on State to Scott Street. He went east on Scott and last saw Bridges and Cartalino going north on State. He was going to go into the alley to wait as a lookout, but when he saw a delivery truck and workers there, he continued east on Scott. When he got to Scott and Astor, he heard two muffled gunshots. He could not tell where they came from. He heard three more louder shots.

Cartalino pulled up in a black Oldsmobile driven by Bridges. He got in the back seat. Bridges asked if he saw "the girl." Cartalino told him that they had to find her because she could get them all "busted." Bridges said they had to "pop the guy," and Cartalino said "he did, too," three times. Cartalino showed Perkins that his gun clip was missing three cartridges. They drove around the block unsuccessfully looking for Colgan, and went to Perkins' apartment 10 or 15 minutes later. While Bridges and Cartalino remained in the car, Perkins entered his apartment. He told Colgan that they were going to kill her and that she should hide in the basement. He went back and told Bridges and Cartalino that Colgan had not returned, but had called and said she was going to a motel and would call back later. Bridges said that he would keep in touch and Cartalino said that they had to kill her. Colgan remained at his apartment that night. The next evening he took Colgan and Marilyn to O'Hare Airport and left them at a terminal. The following morning, he picked up Colgan and his wife at a motel near the airport.

On cross-examination, Perkins stated that the charges of murder, home invasion, burglary, and attempted armed robbery lodged against him would be reduced for his testimony. His lawyer told him his sentence would be five years. He was going to do 2 1/2 years, counting the six months he already had in. He got "three to nine" for possession of a controlled substance on August 14, 1974, and "one year to one year and a day" for unlawful use of weapons on April 17, 1978. He was on parole from his narcotic conviction when he was arrested in the instant case. On redirect examination, the State asked Perkins about his court-reporter statement of April 2, 1979, a statement given months before he was "promised" five years. The statement, as elicited during redirect examination, concerning the formulation and execution of the crime, was essentially consistent with his prior in-court testimony.

The physician who performed the autopsy on the body of the victim testified that she found seven gunshot wounds of entrance and six of exit.

An investigating police officer, Ronald Gates, stated that on the day in question he searched the victim's apartment but found nothing unusual other than a German shepherd hiding behind the toilet in the bathroom. He noticed no signs of forcible entry and the apartment was not in disarray. Officer Thomas Beland, a member of the criminalistics division of the Chicago Police Department, stated that he arrived at the scene at 5:18 p.m. He identified People's Exhibit No. 18 as an envelope containing two handcuff keys on a ring which were similar to the handcuff keys he recovered from the floor of the apartment. He found no handcuffs.

Several spent bullets, metal fragments and .380 cartridge casings were recovered and introduced into evidence at trial. A firearms examiner testified that the three cartridge casings recovered from the victim's apartment were determined to have been fired from the same gun. Three of the recovered bullets were fired from an automatic .380 caliber having six lands and grooves inclined to the right. It was not possible to determine whether the .380 automatic bullets came from the three .380 cartridge casings. The two .38 special revolver bullets were fired from the same weapon. Such bullets may be fired from either a .38 special revolver or a .357 revolver. No ammunition similar to that found in People's Exhibit No. 26 was submitted to him in regard to this case. A homicide investigator testified that he found six live rounds of .38 round nose ammunition, identified as People's Exhibit No. 26, in Bridges' coat pocket when the latter was arrested.

Homicide Investigator Hans Hietmann stated that on April 2, 1979, he observed a 1978 or 1979 black Oldsmobile in front of 5918 West 88th Place, Oak Lawn, which was believed to be the home of defendant. They met a woman there who identified herself as defendant's mother. On April 9, 1979, Cartalino was arrested at 2332 West 22nd Street. The same black Oldsmobile that was parked in Oak Lawn was now parked in front of this latter address. It was stipulated that if a State's witness, Andrew DiBrowski, were called to testify he would state that he resided at 2329 West 22d Place, and on four different occasions had observed Cartalino inside the Oldsmobile at which times the vehicle was always in front of 2322 West 22d Place.

Irene Hyaz, a call girl, testified for Cartalino. She had indirect knowledge that Ronald Birch and Barry Fischer dealt with the victim in drugs. The three were friends. They had a disagreement two months before the victim's murder, because they believed he had informed on them. She "heard" they made "threats." Two additional witnesses testified on behalf of Bridges only. One witness testified in essence, on the basis of measurements he made, that the shortest possible distance from the rear of 17 E. Goethe to Astor and Scott was 250 feet. A building manager for the McClurg ...


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