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03/10/87 the People of the State of v. Joseph Pietryzk

March 10, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSEPH PIETRYZK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

505 N.E.2d 1228, 153 Ill. App. 3d 428, 106 Ill. Dec. 437 1987.IL.270

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

APPELLATE Judges:

Presiding Justice Scariano delivered the opinion of the court. Stamos and Bilandic, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Defendant-appellant Joseph Pietryzk was charged by information with the offense of murder, arising from the death of George Cushman in 1983. Following a jury trial, defendant was convicted of that charge and sentenced to an extended term of 50 years' incarceration. He appeals, and we now reverse.

On review, defendant raises five issues. First, he contends that the circuit court erred in denying his motion to suppress his statements as the fruits of an allegedly illegal arrest. Next, he asserts that the court improperly denied his tendered jury instructions on the included offense of voluntary manslaughter based on a sudden and intense passion. He also claims that error occurred when the court permitted the State to introduce his four oral statements into evidence but denied his attempt to introduce the final written statement obtained by the police. Defendant next maintains that the court erred in refusing to admit into evidence decedent's prior convictions. Finally, he claims that he was denied a fair trial when the State allegedly introduced hearsay testimony bearing on his character. We address these issues seriatim.

George Cushman was killed in the early morning hours of December 14, 1983. Cushman, like defendant, was a transient who often stayed in abandoned buildings for shelter. The killing herein occurred in an abandoned building.

Decedent's sister, Jerri Crocker, testified that a month prior to her brother's death she had heard defendant threaten to kill him. Robert Norton, a friend of the decedent, stated that on November 14, 1983, defendant came to the abandoned building in which Cushman was living and destroyed a radio belonging to Cushman. Ronald Faltin, the bartender at a tavern frequented by both decedent and defendant, testified that in early December 1983, while he was at work, he had seen defendant "pester" Cushman for money. On that occasion, when defendant moved to strike Cushman, Faltin interceded and ejected defendant from the tavern. At that time, defendant allegedly told Cushman, "I'll get you when that punk ain't there."

At the time Cushman was killed, he was staying at 4558 South Paulina in Chicago. As noted, that was an abandoned building. On the evening of December 13, Cushman met Norton at the Ankle Inn Tavern. At that time, Cushman was carrying a suitcase. Sometime thereafter, defendant entered the bar and began "eying" Cushman, according to Norton. Defendant also spoke to an individual at the bar identified only as Billy. Norton overheard Billy ask defendant "when he was going to take care of it," and defendant told Billy that he could not do it in the bar. When defendant left the bar, he told Norton to "watch out for George." This warning was repeated later that night when defendant briefly returned to the bar. Norton and Cushman left the tavern at about 1:30 in the morning of December 14, and separated shortly thereafter.

Crocker testified that in the early morning hours of December 14, defendant, Cushman, and a third man came to her home and woke her up. Crocker refused to open the door or let Cushman spend the night there, stating that she had heard that defendant had "killed three men before."

Cushman's body was found later at the abandoned building he used for lodging. His death was caused by severe head trauma, inflicted by a blunt instrument which broke through his skull and removed part of the bone and part of his brain. He was found slouched on a couch, with blood splattering on his arm and jacket. His pockets had been pulled out. There was also blood on a wall of the room. No knife was found at the scene. It was also established that at the time of his death, decedent had a blood alcohol level of .215%.

The next day, Norton spoke to two of Cushman's relatives, Patrick Huff and Steven Aviles. After Aviles called the morgue and found out that Cushman had been killed, Huff called the police. Detective O'Connor responded to the call, and the three men informed him of the threats and arguments that had occurred between decedent and defendant. O'Connor was also told of the buildings defendant frequented, including the one that decedent used on the night of the killing.

Aviles told O'Connor that he was familiar with the area, and he offered to help O'Connor and his partner, Detective McCann, locate defendant. The officers accepted that invitation.

Aviles led them to several locations, and finally took them to an abandoned building at 5001 South Ashland. They arrived there at about 3 p.m. Aviles knocked on the door while the officers waited on the sidewalk. Aviles backed up from the door, looked up toward an open window and called for defendant. Defendant answered, and then came down to the door. He opened the door, took a step outside, and when he saw the police officers attempted to flee. The officers grabbed him just inside the door and placed him under arrest. Defendant was then taken to the station. Defendant claimed that Aviles called to him, asked him a question, and then asked him to come downstairs. When he opened the door, defendant claimed the officers stuck a gun in his face and arrested him.

A total of five statements were elicited from defendant while he was in custody, the first four of which were oral. Initially, defendant claimed that he was not at decedent's apartment at the time of the murder, but rather was out with a man he identified as Joe Contreras. The police spoke to Contreras, and then confronted defendant again. Defendant then gave a second statement, this time admitting that he was with decedent, but stating that when he went to the bathroom three Mexicans entered the building, demanded money from Cushman, and then killed him by beating him with a board. After reinspecting the scene, the police told defendant that they did not believe him. In his third statement, defendant clung to the "three Mexicans" story. In his fourth oral statement, defendant admitted striking Cushman with a board, but asserted that he did so only after he heard Cushman pull out and open a knife. The written statement comported with the last oral statement, except that defendant claimed to have seen the knife.

At trial, defendant testified that Cushman pulled a knife on him and provoked a fight, and that he initially used a two-by-four to ward off decedent, later striking Cushman to protect himself. Defendant also said he disposed of the knife. As noted earlier, the court denied defendant's motion to suppress his statements, allowed the oral statements into evidence but denied admission of the written statement, and refused defendant's tendered voluntary manslaughter/sudden and intense passion instructions. The jury convicted him of murder, and this appeal followed.

We first address defendant's contention that the circuit court erred in denying his motion to quash his arrest and suppress his statements on fourth amendment grounds (U.S. Cons., amend. IV). The basis of defendant's argument is the method by which the police effectuated his arrest: the police had Aviles, whom the accused knew, ask him to come outside while the officers allegedly secreted themselves from view. When defendant opened the door, the officers emerged, chased him as he fled into the building, and then arrested him on the staircase. This "subterfuge and trickery" ...


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