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People v. Pecina

OPINION FILED APRIL 26, 1985.

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

v.

STEVE D. PECINA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Defendant Steve Pecina and his brother, co-defendant Florencio Pecina, were charged with the murder and robbery of Arthur Zielinski, tried jointly by a jury, found guilty of all charges, but convicted of felony-murder only, and sentenced to terms of imprisonment of natural life and 60 years, respectively, by the circuit court of Will County.

The issues raised in this appeal are: (1) whether the defendant was deprived of a fair trial when the trial court denied defense challenges for cause and a request for additional peremptory challenges during jury selection; (2) whether the trial court erred in refusing a defense-tendered jury instruction on voluntary manslaughter; (3) whether the prosecutor's closing argument deprived the defendant of a fair trial; (4) whether the trial court erred or abused its discretion in sentencing the defendant to natural life imprisonment; and (5) whether the State failed to prove defendant guilty of robbery beyond a reasonable doubt.

At trial, the defendants' pretrial statements were introduced by the prosecution, and each defendant testified on his own behalf concerning the events culminating in the victim's death on the night of November 3, 1982.

The defendants' statements and testimony, although not entirely consistent, tended to establish that Steve and a person identified only as "Jose" approached Florencio and asked him to drive them to a restaurant in Romeoville where Steve had been employed as a dishwasher. (Apparently, Steve had quit his job the previous weekend, had been in some minor trouble, and had just been released from police custody at the time of the events of November 3, 1982.) The restaurant owner purportedly owed Steve about $120 in wages, and Steve wanted to see about getting his job back.

Florencio agreed to provide the transportation and the three men proceeded in Florencio's car to the restaurant. Prior to the drive, Steve had been drinking beer; and he may have been sniffing paint in the car with Jose. At the restaurant, Steve received a partial payment of his wages — $20 — and was told by the owner that Arthur Zielinski, Steve's former landlord, was looking for him because Steve owed Zielinski rent money. Steve denied that he owed Zielinski anything but said he would go to see him.

The men next drove to Zielinski's home at 405 Montrose in Romeoville. Florencio had never been introduced to Zielinski previously, but all three men were invited inside, where they drank beer and whiskey, conversed, and played a drinking game. The can of spray paint and the plastic bag used for sniffing it were brought from the car into the house, but the host, Zielinski, instructed the men not to sniff paint in his home. Eventually the men finished off the beer in the house, and Zielinski gave Steve money to buy more. Florencio drove Steve to a nearby Osco Drug store, where Steve purchased a case of Old Style beer. They returned to Zielinski's house, put the beer in the freezer and continued drinking. Testimony concerning Jose's whereabouts at this point was conflicting — Florencio and Steve indicating Jose stayed at Zielinski's house, and the assistant manager at the drug store indicating there were three Mexican gentlemen who purchased Old Style, one of whom was Steve.

Zielinski showed the men some wine decanters he was collecting and took Florencio to the garage to look at Zielinski's black 1976 Lincoln Continental. According to Florencio, while there, Zielinski offered him money, clothes and the use of the Lincoln Continental if Florencio would sleep with Zielinski. The proposition angered Florencio. He threw a beer can into the car, told Zielinski to "get fucked" and went back inside the house. Steve asked what was wrong, and Florencio said Zielinski had made a pass. Zielinski retreated to his bedroom, and Steve pursued. An argument developed between Steve and Zielinski, and then Florencio joined them. A pushing/shoving match ensued and blows were exchanged, but no serious injuries resulted during this encounter. Both Pecina brothers and Zielinski returned to the living room area to continue drinking. Zielinski persisted in trying to talk with Florencio, but Florencio ignored him. Finally, Zielinski got mad and went back to his bedroom.

Steve pursued Zielinski again to the bedroom, and another fight broke out. Florencio's testimony was that he heard a loud crack and went back to see what was going on. Steve was wielding a broken wine decanter. There was blood all over the bedroom, and Zielinski was not moving. Florencio tried to pull Steve off Zielinski's body, but Steve turned on Florencio with a wild look. Florencio grabbed a knife, but then let it drop. He then retrieved the can of spray paint and attempted to cover up places throughout the house that he had touched. He also printed "L/K" on Zielinski's body and on the walls of the house in an attempt to mislead the police into believing that the murder had been the work of the "Latin Kings" gang. Florencio fled from the scene alone in his car. The testimony was unclear as to when or how Jose left the house. He was not implicated in the killing.

Steve, a chronic alcoholic with memory lapses, awoke the next day in an alley. He recalled biting Zielinski's ear and slicing it off with glass from the broken decanter. After slitting Zielinski's throat, Steve recalled his brother coming into the room and trying to pull Steve off the victim. According to Steve's testimony, his violence was sparked by Zielinski's sexual advances toward Florencio and then fueled by Zielinski's threat to harm Steve after Steve hit Zielinski on the head with the wine decanter.

According to the defendants, Zielinski was clad only in his underwear and a T-shirt during the entire evening. Corroborating testimony of Ronald Joseph Ortiz, who had also rented a room in Zielinski's house, tended to establish that the scant apparel was the victim's customary garb around the house. Zielinski had house rules that his renters not invite women into the house and that they not have wild parties on the premises. Steve stated that he knew Zielinski to be homosexual, Zielinski having previously admitted his preference to Steve.

The next day, November 4, 1982, Zielinski's body was discovered by Virginia Hoefke, the victim's ex-wife. Hoefke testified at trial that she had talked with her ex-husband briefly by telephone around 9 o'clock and again around 10 o'clock the evening of November 3, 1982. Although he customarily telephoned her at 6 a.m. to awaken her for work, she did not receive a call on November 4, and became concerned. Mrs. Hoefke drove over to the house, where she discovered initially that the garage door was open and that the black Lincoln Continental was not inside. She proceeded into the residence and through the rooms calling her ex-husband's name until finally she came upon the grisly scene in the master bedroom. Mrs. Hoefke immediately ran for help and called the police. The police arrived, sealed off the crime scene and took photographs, several of which were introduced into evidence at the defendants' trial. A wallet, identified as the victim's, was found in the toilet. It was devoid of money. Glasses, identified as belonging to the victim, were found lying on the victim's bedroom dresser. According to Hoefke, Zielinski's eyesight was bad. He never did anything without wearing his glasses, removing them only to go to bed. The victim's black Lincoln Continental was located on November 5, 1982, about six blocks from the Pecina residence in Joliet. Blood and urine samples extracted during an autopsy of Zielinski's body and tested on November 8, 1982, revealed an alcohol concentration between .095 and .121 percent.

Lastly, investigating officers testified that they had recovered $3.09 in change found lying on a bedside table in a guest bedroom in the house, and neither of the Pecina brothers confessed to any knowledge about how Zielinski's wallet came to rest in the toilet. Steve Pecina assumed that he had driven away from the murder scene in Zielinski's black Lincoln Continental. He testified that Zielinski kept the car keys on his bedroom dresser near the telephone. Romeoville police officer Larry Vinson testified that he had observed a vehicle matching the description of Zielinski's Lincoln Continental driving without its headlights illuminated in the vicinity of Zielinski's house around 11 p.m. on November 3. It appeared to the officer that the headlamps were turned on after the Lincoln passed the officer's marked squad car, but Vinson was not certain on that point.

Steve Pecina was charged with murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (3)); robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-1) based on the taking of a wallet; and robbery based on the taking of an automobile.

For reasons that will become clear, we choose to consider initially defendant Steve's issues relating to whether he received a fair trial. Defendant's first argument asserts that the defense should have been granted additional peremptory challenges upon denial of challenges for cause with respect to two jurors.

• 1 The jury voir dire included inquiries into the panel members' attitudes towards insanity and intoxication defenses. All potential jurors with the exception of two men — Reginald Rych and Wayne Atwater — unhesitatingly agreed that they could keep an open mind with respect to the defenses. Both Rych and Atwater expressed initial reservations. Based on their equivocal responses, the defense attempted to challenge them for cause. The court then halted proceedings, called in a court reporter, and made a record of its admonitions that the jurors had to follow the law as instructed, keeping an open mind and setting aside personal beliefs. These two potential jurors responded to the court's specific inquiries with the result that both men assured the court that they would be able to follow the law. The court ultimately denied the challenges for cause. Since defense counsel had exhausted all of their peremptory challenges by the time eight jurors had been selected, the defense team requested additional peremptory challenges. This ...


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