Appeal from the Circuit Court of Cook County; the Hon. Arthur
Cieslik, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendants (Chicago police officers) were convicted of involuntary manslaughter and official misconduct. Klisz was sentenced to an extended term of eight years for the former and five years for the latter, the sentences to run concurrently, and Earullo was sentenced to concurrent terms of 2 1/2 years for each offense. On appeal, they contend that (1) they were not proved guilty beyond a reasonable doubt; (2) the trial court erred (a) in denying their motion for a mistrial based upon alleged prejudicial newspaper coverage and (b) in permitting the State to show that Klisz refused to make a statement; (3) the court improperly refused to consider certain evidence; and (4) their sentences were excessive.
A number of witnesses testified for the State to an occurrence on July 6, 1980, which began on an elevated train and continued to the concourse of the 35th Street CTA station.
Farris King was seated in the first car of the train when he saw a black man run to the back of the car, followed by a short white man with dark hair and a taller white man. The black man held his left hand behind his back and told them "not to come up on him," but a third and larger white man with a red beard and moustache entered the car, dove into the black man, and held him in a headlock. The three white men wrestled the black man to the floor and, after handcuffing his hands behind his back, the two taller white men lifted him from the floor — one on each side holding his arms. The black man was hollering "No," and King saw the man with the red beard give the black man a rabbit punch in the stomach. The man with the red beard explained to the others on the train that they were police officers and the man was under arrest. The black man was led off the train by the three men. King did not see the black man's head go through a window, and he remembered telling detectives a week after the incident that the black man told the officers they had better have a gun if they wanted to arrest him, but he saw no one with a gun.
Beulah Phillips, a switchman on the train, testified that while the train was stopped at the station, she looked back and saw three plain-clothes policemen taking a black man off the train. The black man walked off the train on his own power, and she did not see any blood on or injury to him. Phillips identified defendants Klisz, Earullo, and Christiano *fn1 in court as the officers who removed the man from her train.
Blenda Caldwell, who with her husband Michael entered the station at approximately 4:30 p.m., saw a black man and two white men descending the stairs toward her. Each of the white men was holding an arm of the black man, and they were jostling him back and forth. After the three men passed by, she heard a noise and saw the black man thrown up against the wall of the concourse three times by the same two persons she had just passed. The black man's hands were handcuffed behind him, and his whole body, head, chest, and legs struck the wall. While the black man was faced up against the wall, both of the white men punched him in his back and upper ribs. At that point, a woman stopped to ask her for directions, after which she again looked toward the concourse and saw the black man being held up against a post by the man with a slight beard, and then saw the other man with red hair and a big beard bring his leg up twice, but she could not see whether his leg made contact. She then turned around to see where her husband was and, when she looked back, the black man was lying on the ground on his left side with his hands behind him, and she saw the white men kick him eight or 10 times. The black man then rolled over onto his stomach, and the white men stomped on his back while the black man hollered, "Help me, they are trying to kill me." She never saw the black man's hands anywhere other than behind his back, and she did not see him strike either of the white men while she was there — which was about five minutes.
Michael Caldwell testified that he was with his wife Blenda in the concourse area of the station when two white men on either side of a black man came down the stairs toward him. One of the white men was thin with dark hair and the other had long red hair, an earring in his left ear, a bushy red beard, and a moustache. After they passed, he stopped and watched the two white men throw or shove the black man against the wall several times. The man with the beard then held the black man with his back to a cement post, and the thin man kicked him above the knees and below the chest. At that point, he (Caldwell) went to the ticket agent and, after speaking with her, she made a phone call. On his way back toward his wife, he saw the black man's head being held on the floor by the man with the red beard, and he heard the black man yell, "Murder, murder." He did not see any other person kick or strike the black man, but he did see a pool of blood under his head and neck. He (Caldwell) identified Klisz in a lineup and in court as the man with the beard.
Willis Crew was in the station near the ticket office where he saw a black man lying on the ground with one white man standing on his feet and another near his head. The former kicked the black man in his side and the other man was hitting him. The black man, who had blood on his face and shirt, said, "Help me, get these people off, call the police." One of the white men responded, "Don't worry about him, he's nuttier than a fruitcake," and he left after two to three minutes.
Marilyn Brodsky, who was in the station returning from a White Sox game with her nephew Jerry and her son, saw a man lying on the ground being kicked by two men, but she did not see their faces because they had their backs to her. While she was on the concourse, she stopped to ask directions from a white woman.
Jerry Lubelcheck, who was with Brodsky and his cousin in the station, saw two men on either side of a black man walking toward a pole. They were punching and kicking the black man and, as he walked up the stairs, he turned around and saw the black man on the ground with the other two men stomping and kicking him.
Donnie Reynolds, also in the station, saw a black man lying on the floor with one white man standing over him and a fat white man with his right knee on the neck of the black man, who was handcuffed and was hollering, "Get him off of me, help me." When he asked what was wrong, one of the white men said it was police business. He saw blood on the ground and blood coming from the right side of the black man's head and, as he walked toward the stairway, he saw the man who had been kneeling strike the black man in the head four times.
Andrew Laties was walking through the concourse of the station when he heard repeated cries for help and saw a black man lying on his stomach, with a stocky-built white man with a dark moustache next to him and a larger white man with light-colored sideburns squatting on the black man's buttocks. The larger man leaned over the black man and hit him twice with his right hand at the base of the skull and top of the neck. When he told the other white man "to stop that" the man replied, "Keep walking, this is police business." The black man was hit a third time by the same white man, and he (Laties) saw a pool of blood at the black man's head. The black man at that time was prone and was not moving.
Fritz Knaak was in the station after the White Sox baseball game and saw a black man lying on the floor with a white man sitting on top of him. When the black man hollered for help, the white man told him to "shut up" and hit his head on the cement floor at least five times.
John Havelka, a Chicago policeman, in response to a call, went to the station with his partner. There, Klisz, Earullo, and Christiano identified themselves as police officers, and he was told that a black man lying on the ground was under arrest. Earullo was standing on the black man's legs with Klisz and Christiano nearby. He was told the black man had tried to stab them with a pen. He called for a paddywagon, and when it arrived he and Klisz walked the man to the wagon with each holding one of his arms. The black man's arms were handcuffed behind his back, but he walked under his own power and was wearing shoes. From the time the black man was taken from the station concourse to the paddywagon, he did not resist in any way, and the three officers got into the back of the wagon with him. Havelka was at the police station when the black man was assisted into a processing room and put on the floor in a corner by Klisz and the driver of the wagon. He was not walking on his own power; "his feet were like being dragged." He did not have his shoes on, but otherwise appeared the same as when he entered the wagon. Havelka did not see the black man strike or kick anyone and saw no one strike or kick him at any time.
Robert Frenzel, a Chicago police officer, was in the interrogation room processing another arrestee when decedent was brought in by two police officers. Decedent was placed on the floor against the wall, and he "was disheveled, had * * * his hands handcuffed behind his back, and a slight trickle of blood on the side of his face" and was shouting obscenities. He saw Klisz bend over and wipe the blood off decedent's face with the man's shirt but saw no one strike, kick, or abuse decedent and did not see decedent strike his head on the wall or on the floor during the four or five minutes he was in the room. While decedent was on the floor, he was belligerent and causing a commotion but he made no complaint of being beaten, and he saw nothing wrong with decedent other than the trickle of blood.
Joseph Cuddy, a field lieutenant, testified that at about 5:30 p.m. Earullo informed him of decedent's arrest and said that he and his partner had found him smoking on an elevated train. Earullo also said he had been stabbed, and he noticed that Earullo had a scratch on the lower left part of his chest. Later, when he went to the interview room, he saw Officers Frenzel and Christiano seated at desks and decedent on the floor against the wall with his hands cuffed behind his back and blood coming from his nose and lips. Decedent answered his questions only with vulgarity and was combative, abusive, and argumentative. He told the desk sergeant to call for a squadrol to take decedent to the hospital. When he returned later to the interview room, decedent was in the same condition, and an evidence technician was there taking pictures. He did not see anyone strike decedent or see him fall to the floor or hit his head against the wall, and decedent did not complain about having been punched or abused.
Officer Cooley testified that when he arrived at the CTA station he saw a black man lying on the ground with a white male, having a full beard, glasses, and lightish hair sitting on his back, and another with dark hair restraining the man's legs. The black man was attempting to move around and was yelling and screaming obscenities.
Dr. Muhammed Awan, an internal medicine resident at Mercy Hospital, testified that about 6:30 or 7 p.m. emergency resuscitation (CPR) was performed on decedent in the emergency room, following which he was transferred to the intensive care unit in an unconscious state. Later, the intensive care staff again conducted CPR, and he pronounced decedent dead at 9:14 p.m. When he performed CPR in the emergency room, he noticed that decedent's sternum "was more flexible than it should have been," his abdomen was distended, and his lower left leg near the ankle was not in alignment with the upper leg. He said that ribs and the sternum can be broken or fractured during CPR and that decedent was never breathing on his own and had clotted blood in his nose and mouth.
Dr. Barnes, who examined decedent in the hospital emergency room, said that his wrists and ankles were in restraints and he wore no shoes, and that he was confused, disoriented, and could not respond. There was dried blood in both nostrils, he heard air in the right lung — which comes from a ruptured lung, and his chest felt mushy, his abdomen hard, and both ankles were swollen. When decedent's heart and breathing stopped, he started CPR and felt rib fractures and noticed that the sternum was movable. Nowhere in his report did he indicate a finding of fractured ribs or sternum.
Dr. Stein, the Chief Medical Examiner of Cook County, performed an internal and external post-mortem examination on decedent and found that decedent had marked swelling over the right eye as well as a contused area indicating the presence of blood underneath the skin, and marked contusions extending through the cheekbone and the nose — their dark red color indicating they were of recent origin. There was also dark blue, almost dark purple, discoloration compatible with hemorrhage in the right ear, contusions of the frontal area and over the left eye, contusions of the frontal temporal area over the cheekbone and under the left side of the cheek, and contusions with discoloration near the right and left ears. The chest wall showed marked red discoloration extending from the neck area due to dilation of blood vessels, usually from trauma or any irritant, and the back and shoulders had contusions and pinkish discoloration caused by dilation of blood vessels. There were contusions and abrasions on the right foot, the right upper arm, the left wrist, and on the forearms. There were parallel contusions on the wrists compatible with handcuffs, and abrasions and contusions on the elbow joint, kneecap, and left foot. Dr. Stein also found extensive hemorrhaging on the right side of the chest extending to the bottom of the rib cage, with some hemorrhaging on the left side as well as the sternum and the upper and lower abdominal regions. Additionally, he found that the small intestines were dilated, with extensive hemorrhaging near the muscles of the lower back and massive hemorrhaging over the cervical vertebrae with a fracture of a spinous process, fractures of bones in the lower right and left legs, and nine broken ribs. Based upon his internal and external examination, Dr. Stein gave an opinion that the cause of death was due to blunt trauma and testified that laboratory tests revealed no presence of alcohol or drugs in the blood; that there was some blood present in the mouth, but no lacerations or open wounds on the body; that contusions are the result of blunt trauma from someone striking the individual or the individual striking something else; that there was some contusion of the lungs that possibly could have been caused as a result of CPR; that it is possible that some of the ribs could have been broken by CPR, but not all of them; that the contusions had the appearance of having occurred approximately two hours before death; and that the contusions, abrasions, hemorrhaging, and broken bones all occurred before death.
Witnesses for the defense testified as follows:
James Calvin was on the train and saw some police officers enter and ask a black man to get off the train. He refused, and when one of the officers grabbed him by the arm and tried to lead him off, he started swinging and kicking. When the officers got him to the platform, he broke away from them and fell. He did not know whether the black man was handcuffed or how many men took the black man off the train, and he may have told the police a few days after the incident that he was on the platform when the train came into the station.
Louise Carrillo, a conductor in the third car of the train, was waiting to close the doors at the station when Earullo left her car and started walking toward the front of the train. She saw broken glass on the rails and a broken window on the train. Christiano said he wanted to give her his star number and name because the window was broken during the resistance of arrest. She saw the other two police officers standing by the stairs with the man they took off the train and, while she found a broken window, she did not see anyone fall down or a window being broken.
Two persons, a bus driver and a CTA patrolman, said that on June 15, 1980 (the instant occurrence was July 6, 1980), decedent created a disturbance on a bus with an ice pick and was removed by police officers.
Fannie Mae Crew and her four children were in the station and they all saw a black man on the ground yelling, with one white man standing with his foot on the man's knee and another white man with his knee on the man's neck. One said that a policeman told her not to pay any attention to the man because he "is nutty as a fruitcake" and, while all of them saw blood on the man's head, none of them saw the men do anything to the black man.
Officers Walski, Kalafut, and Grillo all arrived at the station in response to a call, where they saw a black man lying on the ground handcuffed and three other police officers. The black man was yelling and kicking his feet, and Klisz was holding his shoulders with his knee up against his ...