Appeal from the Circuit Court of Cook County, the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1987.
In an indictment returned in the circuit court of Cook County, Dino Titone (defendant), Robert J. Gacho, and Joseph Sorrentino were charged in eight counts with the murders (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) of Aldo Fratto and Tullio Infelise, in two counts with the armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)), and in four counts with the aggravated kidnaping (Ill. Rev. Stat. 1981, ch. 38, pars. 10-2(a)(3), (a)(5)) of the victims. Defendant, Gacho, and Sorrentino were granted severances, and Gacho and defendant were subsequently tried simultaneously before a single judge, with Gacho electing a jury trial and defendant choosing a bench trial. Defendant was convicted on all counts of the indictment. In a death penalty hearing requested by the People, the circuit court found that there existed one or more of the factors set forth in section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)) and that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was stayed (87 Ill.2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603). Holding that the convictions for armed robbery and aggravated kidnaping merged into the convictions for murder, the circuit court ordered those convictions vacated. This appeal involves only the conviction and sentence of defendant, Dino Titone.
The principal witness for the People at trial was Katherine De Wulf, who testified that between 10:30 and 11 p.m. on December 11, 1982, she received a telephone call at her home in Chicago from her boyfriend, Robert Gacho, who told her to come to his house because he needed "a back-up car." At approximately 1:45 a.m., she received a second call from Gacho, who directed her to wait five minutes, then drive to his house. As instructed, she drove to Gacho's house, parked in the alley at the rear, and waited. Gacho came out of the house, told her to wait, and went back into the house. Joe Sorrentino, who Ms. De Wulf had known previously and who was a friend of Gacho's, left the house, went around the front of the house, and returned to the alley driving a light blue Toronado. He told her to stay in her car, and reentered the house.
Shortly thereafter, Sorrentino again came out of the house; Fratto and Infelise, with their hands tied behind their backs, were with him. Ms. De Wulf recognized Fratto and Infelise from having seen them at Gacho's body shop. Defendant was walking behind Sorrentino, Fratto, and Infelise. Defendant motioned for Fratto and Infelise to get into the rear seat of the Toronado; defendant entered the passenger side and Sorrentino entered the driver's side. Gacho then came out of the house and entered the passenger side of Ms. De Wulf's car and told her, "They were going to have to waste `em." Ms. De Wulf drove her vehicle and followed the Toronado being driven by Sorrentino. After a block or two, Gacho and De Wulf switched positions and Gacho drove. The two automobiles proceeded south on the Stevenson Expressway (I-55) for approximately one-half hour, leaving the expressway at the Kingery Road exit. Gacho and Ms. De Wulf followed the Toronado down a gravel or dirt road for about 10 or 20 minutes and stopped when the Toronado turned down another road. Gacho told Ms. De Wulf they were waiting to hear shots. Ms. De Wulf testified she heard "several" shots. Defendant and Sorrentino returned to Ms. De Wulf's automobile and Gacho queried, "Is it over?" She testified that defendant responded, "They're gone, they're dead, he had shot them." Defendant also responded that Fratto and Infelise were begging him not to shoot them. At this, Sorrentino and defendant "just laughed."
Du Page County Forest Preserve Ranger Robert Stanton testified that at approximately 9:15 a.m. on December 12, 1982, he was patrolling the area of the Des Plaines River near Lemont Road when he observed a white automobile parked near the river. He approached the car and heard sounds coming from the trunk and a voice from the trunk saying, "I'm running out of air. Please get me out of here." Stanton radioed for assistance, and both the Lemont police and fire departments responded. Within a minute or two, the trunk was forced open and Stanton observed two people in the trunk, covered with blood, and with their hands tied behind their backs. He also saw a hand gun in the trunk. Paramedics then removed one victim, later identified as Tullio Infelise, placed him on a stretcher, and removed the cord from his hands. Stanton asked Infelise, "Who did this to you?" Although Stanton testified it was difficult to understand exactly what he was saying, Infelise responded, "Robert Gott or Gotch." When asked where Gotch could be found, Infelise responded, "Florida."
It was stipulated that Infelise remained at Good Samaritan Hospital in Downers Grove from December 12, 1982, until he died on December 28, 1982. Apparently when the paramedics arrived at the scene, Fratto was dead.
An autopsy performed on Tullio Infelise showed that he died as a result of multiple gunshot wounds to the chest and abdomen requiring extensive surgical repair. The autopsy performed on Aldo Fratto showed that he died as a result of five gunshot wounds to the head, chest and abdomen. Forensic tests showed that the .38-special-caliber Smith & Wesson airweight-model revolver and the .25-ACP-caliber Raven Arms semi-automatic pistol found at the crime scene were used to inflict the fatal wounds. A latent fingerprint examination showed that the latent prints lifted from the crime scene were not defendant's.
Defendant contends first that he was not proved guilty beyond a reasonable doubt because the only evidence connecting him with the crimes was the uncorroborated testimony of an accomplice witness. He argues that Ms. De Wulf's testimony was suspect because she was an accomplice and the evidence shows that she had hopes of reward from the prosecution. He points out that when police officers came to her residence and asked her to go with them to the police station, she agreed; that the officers drove her vehicle to the police station while she rode with the officers in their vehicle; that at the police station she talked with police officers and assistant State's Attorneys who advised her of her rights in accordance with Miranda; and that she was photographed and fingerprinted by the police as though she were suspected of a criminal offense. They argue that her testimony that she was told that if she gave a statement she would not be charged with any offense, her testimony that she was later told that she would not be charged with any offense so long as she did not change her original statement, and her admission that she asked a police officer involved in the case for money, show that she had hopes of reward. Defendant contends, too, that he was not proved guilty beyond a reasonable doubt because, assuming that Ms. De Wulf's testimony served to corroborate the evidence as to certain events relating to the murders, it did not corroborate evidence concerning the identity of the perpetrator. Finally, he argues that her testimony was not entitled to credence because "she testified she often used cocaine with Gacho during the course of their relationship."
The People argue that Ms. De Wulf's testimony was fully corroborated by the evidence that the following morning Aldo Fratto and Tullio Infelise were found at the crime scene in the forest preserve, locked inside a light-colored automobile; both men had been shot, but Infelise was still alive and able to tell the police that he had been shot by "Robert Gotch"; when Fratto and Infelise were discovered, their hands were tied behind their backs in the manner described by Ms. De Wulf. The People argue that she was neither offered a reward for her testimony nor threatened by the prosecution. They assert that she voluntarily went to the police station on December 12, 1982, was given her Miranda warnings, and provided detailed statements concerning the events of the previous night. They assert that after she recounted these events, it was obvious to the police that she had been "a mere unwitting participant" in the events and that no charges would be brought against her. Finally, as to Ms. De Wulf's drug usage, the People assert that she testified as to drug usage only during her relationship with Gacho, and there was no evidence of drug usage at the time of trial which would bear on the credibility of her testimony. As to her credibility in general, the People note the trial judge's comments that "although the influence exerted over her by Gacho evidently caused her at one time to make a contradictory statement to a defense attorney, it was for no other reason than that, that that influence continued to exert itself."
Citing People v. Ash (1984), 102 Ill.2d 485, defendant argues that "where a witness has hopes of reward from the prosecution, his testimony should not be accepted unless it carries within it an `absolute conviction of its truth.' [Citation.]" (102 Ill.2d 485, 493.) We find People v. Ash clearly distinguishable. In Ash, it was undisputed that the accomplice witness who implicated the defendants was seeking dismissal of some of the charges and a lenient sentence. He was also seeking to avoid incarceration with three persons against whom he had testified earlier. On cross-examination he stated that these individuals had "put out a contract" on his life and he "would do just about anything" to avoid being incarcerated with them. (102 Ill.2d 485, 491.) He also freely acknowledged that he would lie to save his life, and he elected to testify only after the prosecution had threatened to rescind the plea agreements that had been negotiated. Here the police officers went to Ms. De Wulf's house and took her to the police station, and as she acknowledged, she voluntarily agreed to go with them. From the testimony it appears that the only thing asked of her in order to avoid being charged with a crime was that she tell the truth. Although we are hesitant to agree with the circuit court that Ms. De Wulf was "a mere unwitting participant," there is no evidence to show that by implicating defendant and his confederates, she had "hopes of reward from the prosecution." 102 Ill.2d 485, 493.
We have considered and do not agree with defendant's contention that the fact that when Infelise was asked "Who did this to you?" he replied, "Robert Gott or Gotch," contradicts Ms. De Wulf's testimony and that it is evidence that he did not participate in the crimes. We need not engage in conjecture, but a number of reasons suggest themselves for the deceased's failure to mention defendant by name. The deceased may not have known defendant by name, or he may have thought that the police, knowing of Gacho, would find his companion. The record shows, too, that Ranger Robert Stanton testified that it was difficult to understand what Infelise was saying because Infelise was "in quite a bit of pain and he was having a hard time breathing, and he was in shock from loss of blood," thus suggesting Infelise was too weak to speak more after implicating Gacho. We suggest these possible explanations for Infelise's implication only of Gacho, to demonstrate that the inferences to be drawn from this evidence are varied. Because a reviewing court might have drawn an inference different than that of the circuit court is not a basis for reversal.
We have considered defendant's contentions that Ms. De Wulf's testimony is incredible for the reasons that she had given a statement at the office of an attorney representing Gacho which was contrary to the one given the assistant State's Attorney, and that her admitted use of drugs showed her to ...