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People v. Silvestri

OPINION FILED OCTOBER 15, 1986.

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

v.

ILIO SILVESTRI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Following a bench trial in July 1985, defendant Ilio Silvestri was convicted of the 1976 murder of his wife, Delores, after the court found defendant had hired another man, Michael Balls, to perform the killing. The trial court sentenced defendant to a term of 35 years. (Eight years earlier, Balls was found guilty of the murder and sentenced to 150 to 300 years. That conviction was affirmed by this court. (People v. Balls (1981), 95 Ill. App.3d 70, 419 N.E.2d 571).) On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt, and that the trial court committed reversible error in admitting hearsay statements of the victim, certain prior consistent statements, and extrinsic evidence of other misconduct by defendant.

Michael Balls testified for the State that he was hired by defendant to protect defendant's tavern from hoodlums. Balls also stated that defendant told him about his family and his expenses and gave various excuses for not paying Balls. Defendant told Balls he was having trouble with his wife because he had two children by another woman. Defendant asked Balls to kill defendant's wife, for which defendant would pay $1,500, and Balls agreed. In September, October and November 1976, Balls and defendant discussed details of the plan. Defendant gave Balls a photograph of the victim, and prior to the murder defendant pointed out his wife to Balls in the cafeteria of the Pittsfield Building in Chicago. Defendant suggested that Balls use a knife as a weapon. Balls testified that two weeks prior to the murder he drove his girlfriend, Artie Ross, to the Pittsfield Building and told her about the planned killing and where he would park his car on the day of the murder.

On November 30, 1976, at 7 a.m., Balls left his home, leaving the victim's photograph on his refrigerator. According to plan, Balls met defendant in a restaurant and they went to the 14th floor of the Pittsfield Building together. Defendant had asked his wife to go down from the 14th-floor doctor's office to join defendant in viewing some paintings on the 13th floor. Defendant pointed out the stairwell where Balls was to wait for the victim. At about 10:15 a.m., when the victim entered the stairwell, Balls stabbed her to death. He then ran down to the third floor, where he was later arrested. Balls testified further that he gave statements to the police on the same day. On cross-examination, Balls testified that he was not testifying pursuant to any promises made by the State. On redirect, Balls stated that he had told the police the same facts that he had testified to on direct examination.

Dolores Heilmann, the receptionist in the 14th-floor doctor's office, testified that at 10:15 a.m. the victim told Heilmann she was "supposed to meet [her] husband on the 13th floor at 10:00 o'clock" to see some paintings. At that point the trial court overruled defendant's hearsay objection. Heilmann testified further that the victim left the office at 10:30 a.m., and that defendant came to the office at 11 a.m. looking for his wife. Heilmann also stated that she made statements to police officers before trial.

Artie Ross and her mother, Virgie Ross, both testified that Artie's brother James had told them about defendant's attempts to hire James to kill defendant's wife. Virgie stated that when she and her husband confronted defendant about the offer, defendant said he was just joking. Virgie also testified that she often saw defendant and Balls together.

Artie testified that she had several conversations with Balls in November 1976 about the details of the planned murder. If Balls did not return by 11 a.m., Artie was to take the extra set of car keys and the title to the car and go to the parking garage to pick up Balls' car, and then contact defendant. However, when Artie went to the garage that morning to pick up the car, she was arrested.

James Ross testified for the State that defendant asked him to kill someone, but later became angry because Ross was delaying. Defendant then said he would have Balls commit the murder. Ross told his sister and his mother about the offer. James testified further that defendant had committed other criminal offenses, including receiving stolen goods and solicitation to commit criminal damage. Defendant hired Ross to damage a nearby store front. Ross also stated that he and others had stolen liquor from defendant and later sold the liquor back to defendant. Ross was imprisoned at the time he testified, and had a mandatory release date.

Officer John Glynn testified that he was one of the officers who informed defendant of his wife's death. Defendant told Glynn that he was to meet his wife at the beauty parlor at 10:30 a.m., but did not mention having previously gone upstairs to the doctor's office to look for his wife. Defendant told Glynn that he did not know a man named Michael Balls. Defendant identified a photograph of Balls as the man who had been threatening him, but said that he knew him as Michael Underwood. Glynn also testified regarding James Ross' statements made in 1976. It was stipulated that prior to the murder defendant had opened a savings account in the name of Michael U. Balls and another man.

Nick Abetecola, the owner of the third-floor Pittsfield Building beauty shop, testified that on November 30, 1976, he left his shop at 10:35 a.m. to get coffee, and returned at 10:45 a.m. A commotion in the building had delayed his return. Five to ten minutes later, defendant came in, found that his wife was not there, and said he would wait for her. Ten minutes later, the police arrived and informed defendant of his wife's death.

Defendant testified that he was forced to pay Balls $50 each week for several months in 1976 for extortion to prevent having his tavern robbed. Defendant also made car payments for Balls. In November 1976, Balls demanded $1,500 from defendant, who refused to pay. Balls repeatedly threatened to harm defendant or his family, despite defendant's arguments that he had many family expenses. In an attempt to convince Balls that he could not pay, defendant gave Balls many details about his family life. On November 29, defendant told Balls that his wife was entering the hospital the next day, and that defendant would be going downtown with his wife in the morning. Defendant also testified that he had family pictures and doctor's appointment cards behind the bar in his tavern. Balls was often behind the bar, taking liquor and cigarettes, and using the telephone.

On November 30, 1976, defendant drove downtown to meet his wife, who left earlier for a 9:30 a.m. doctor's appointment and a 10:30 a.m. beauty parlor appointment in the Pittsfield Building. They had agreed to meet at the beauty shop and have lunch. Defendant parked the car and went into a restaurant for coffee. When he noticed Balls there, defendant left the restaurant. Balls followed him, demanding the $1,500, and threatening defendant. Defendant left and walked to the Pittsfield Building, where he saw a commotion in the lobby. He went to the third-floor beauty shop but did not see his wife. He then went to the doctor's office where Heilmann told him that his wife had gone. He returned to the third floor and waited. Soon thereafter the police arrived.

Johnnie Anderson testified in rebuttal for the State that Balls told him defendant had asked Balls to kill his wife, and that Anderson had so stated to the police.

• 1 We initially consider defendant's argument that the trial court erred in admitting Heilmann's hearsay statement that the victim told her she was supposed to meet defendant on the 13th floor to look at some paintings together. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless it falls within an exception to the hearsay rule. (People v. Carpenter (1963), 28 Ill.2d 116, 190 N.E.2d 738.) The State urges that Heilmann's statement is admissible as an exception, and is relevant because it demonstrates the victim's state of mind. Statements indicating a declarant's state of mind are admissible as exceptions to the hearsay rule if the declarant is unavailable and there exists a reasonable probability that the testimony is truthful. (People v. Floyd (1984), 103 Ill.2d 541, 470 N.E.2d 293; People v. Bryant (1984), 123 Ill. App.3d 266, 462 N.E.2d 780.) Such statements, however, must be relevant to a material issue in the case. (People v. Floyd (1980), 103 Ill.2d 541, 470 N.E.2d 293; People v. Bryant (1984), 123 Ill. App.3d 266, 462 N.E.2d ...


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