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People v. Neumann

OPINION FILED AUGUST 27, 1986.

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

v.

LAWRENCE NEUMANN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Kenneth L. Gillis, Judge, presiding.

JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 12, 1986.

Following a jury trial, defendant Lawrence Neumann was convicted of murder, murder while committing armed robbery and murder while committing burglary. He was found eligible for the death penalty but the jury declined to impose it, and defendant was sentenced to natural life imprisonment in the Department of Corrections. Defendant appeals, contending that: (1) the trial court erred in denying his petition for discharge based on the denial of his right to a speedy trial; (2) the trial court erred in failing to disqualify itself from defendant's retrial after the original proceeding was declared a mistrial; (3) the State failed to prove defendant guilty of murder beyond a reasonable doubt; (4) the trial court erred in admitting certain evidence and excluding other evidence about the State's key witness, Frank Cullotta and (5) the prosecutor's remarks during closing and rebuttal arguments were prejudicial and constituted reversible error.

On September 25, 1979, Robert Brown was strangled, beaten and stabbed to death in his clothing and jewelry store at 3120 North Nordica Street in Chicago. Jewelry was taken from the store, and the office safe was left open. The Chicago police were unable to solve the crime.

In April 1982, while imprisoned in Nevada, Frank Cullotta entered into an agreement with the Federal Bureau of Investigation (FBI) whereby in return for information about various crimes in which he was involved, he would become part of the Federal witness protection program, receive a maximum sentence of 10 years' imprisonment for cases pending against him at that time, and receive immunity from prosecution in Nevada and in Federal court regarding the matters he discussed.

Pursuant to this agreement, Cullotta related his involvement in the 1979 murder of Robert Brown. He was later granted immunity in Illinois and testified for the State at defendant's trial for the murder and robbery of Brown. Cullotta testified that he had lived in Chicago until 1978 when he moved to Las Vegas, Nevada. He stated that he had known Brown since 1964 and, in the mid-1970's, saw him once or twice each week. During that time, Brown would come to a discotheque Cullotta owned to try to sell jewelry out of his briefcase to bar customers and employees. Cullotta also testified that he had known the defendant since 1970. Defendant came to Las Vegas 12 or more times a year and would sometimes stay at Cullotta's apartment.

In September 1979, Cullotta was in Chicago. He had a short conversation with Wayne Matecki after which he called defendant on the phone. He told defendant he was with Matecki who had "something good" about which he could not talk over the phone and suggested that defendant and Matecki contact one another within the next few days. Cullotta testified that he and Matecki discussed robbing Brown, who had an unusually large amount of jewelry at his store. Subsequently, they and the defendant finalized the plan. They decided that Matecki, whom Brown knew, would enter the store first, pretending to be shopping. Defendant would enter later and rob both Brown and Matecki. Defendant would then take the proceeds of the robbery to Las Vegas, and he and Cullotta would sell it. Cullotta then returned to Las Vegas.

Cullotta further testified that in late September, he received a phone call from defendant who indicated there had been a problem with the robbery about which he would tell Cullotta when he saw him in a day or two. Cullotta next heard from the defendant a couple of days later at his apartment in Las Vegas. Defendant told Cullotta that he had the merchandise but that he had to kill Brown. When Cullotta asked him why, defendant explained that Matecki had become worried about repercussions from the Brown robbery and that they therefore both decided to kill Brown so there would be no witness. Cullotta then testified as to the details of the murder as recounted to him by the defendant.

Defendant and Cullotta sorted the jewelry from Brown's store which defendant had brought with him to Las Vegas in an attache case. The next day, Cullotta and defendant took the jewelry to a store owned by Sid Sargent in the commercial center of town. Sargent agreed to purchase some of the jewelry for $22,000 and gave him $14,000 that day. They returned the next day for the balance, refused to accept a check, and took the remaining $8,000 in cash. Cullotta testified that he received $7,300 and defendant took his and Matecki's shares back to Chicago. Cullotta also testified that defendant gave him one-third of $3,000 he had taken from Brown's body, and a gram of cocaine.

Cullotta stated that on October 1, 1979, he and defendant opened a safe-deposit box at the Valley Bank in Las Vegas for the jewelry they had not sold to Sargent and an automatic gun defendant was carrying. On October 4, defendant returned to Illinois.

On October 4, 1982, defendant and Wayne Matecki were indicted by a Cook County grand jury for two counts of murder, two counts of felony murder and one count each of burglary, armed robbery and conspiracy. Defendant was arrested on November 12, 1982. Matecki was acquitted in a bench trial before Judge Kenneth Gillis. Defendant was convicted by a jury after a trial conducted simultaneously with Matecki's trial. When the jury was polled, however, one juror recanted his verdict and a mistrial was declared. A second jury trial was held, and defendant was convicted of murder, murder while committing armed robbery and murder while committing burglary.

On appeal, defendant first contends that the trial court erred in denying his petition for discharge for denial of his right to a speedy trial where he was arrested November 12, 1982, and trial began March 14, 1983. At the time of his arrest for the Brown murder, defendant was in Federal custody awaiting sentencing on a Federal weapons violation. On November 12, 1982, Federal marshals took him to a Cook County circuit courtroom where he was arraigned, waived reading of the indictment and pleaded not guilty. On that date, defendant asserted his right to a speedy trial pursuant to the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5). Defendant was then returned to the Metropolitan Correctional Center in the custody of the Federal marshals. Defendant appeared in the circuit court of Cook County on November 18, November 23, and December 1, 1982, but was not transferred to Cook County jail until the end of February 1983.

Defendant argues that for purposes of a speedy trial, the time he was in Federal custody after November 12, 1982, must be included in the computation of the statutory period. Section 103-5(a) provides that every person in custody in this State shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody, unless there is a delay occasioned by the defendant. (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a).

• 1 The trial court denied defendant's petition for discharge pursuant to section 103-5 because on November 12, 1982, defendant was not under the control of the State of Illinois. Therefore section 103-5 was not applicable, and the statutory term did not begin to run. We find no error in the court's determination. (See, e.g., People v. Nolan (1981), 102 Ill. App.3d 895, 430 N.E.2d 345; People v. Terlikowski (1967), 83 Ill. App.2d 307, 227 N.E.2d 521.) Indeed, the fact that defendant was accompanied by Federal marshals each time he visited the circuit court of Cook County and was returned to the Metropolitan Correctional Center is evidence that he was not even in temporary custody of this State but remained in Federal custody. (People v. Dye (1977), 69 Ill.2d 298, 371 N.E.2d 630.) We further find no indication in the record of any voluntary ...


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