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02/04/88 the People of the State of v. Nestor Rosario

February 4, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

NESTOR ROSARIO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

519 N.E.2d 1020, 166 Ill. App. 3d 383, 116 Ill. Dec. 805 1988.IL.139

Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Defendant, Nestor Rosario, was charged with four counts of murder, three counts of arson, and three counts of aggravated arson in connection with a residential fire that killed a three-year-old child. The State nol prossed two of the arson counts. After a jury trial, Rosario was acquitted of murder. The jury was unable to reach a unanimous verdict on the remaining counts and the court declared a mistrial on those charges.

Defendant's attorney moved for a substitution of Judges for the retrial, alleging that the trial Judge was prejudiced against Rosario. Another Judge heard the motion and denied it, finding that the trial Judge was not prejudiced in any way. Thereafter, defendant orally moved before the trial Judge, asking him to recuse himself. This motion was also denied.

On retrial, the jury returned verdicts of guilty on the arson and aggravated arson charges. Rosario was sentenced to 16 years in the Illinois Department of Corrections.

Rosario appeals, contending that: (1) the trial Judge's conduct in the first trial was so prejudicial that he should not have been allowed to preside in the second trial; (2) the trial court's allowance of certain immaterial, prejudicial, and cumulative evidence constituted reversible error; (3) the trial court's negative comments on the defense case invaded the province of the jury; (4) the trial court abused its discretion by refusing to allow a defense instruction; (5) defendant was denied a fair trial when the State's closing argument accused the defense attorneys of suborning perjury; (6) defendant was not proved guilty beyond a reasonable doubt; and (7) since defendant was acquitted of murder, his subsequent conviction of the lesser included offenses of arson and aggravated arson violated the fifth amendment's proscription against double jeopardy.

We affirm.

Background

On August 25, 1984, a fire in a two-story frame house caused the death of a three-year-old girl.

After the first trial, in June of 1985, the jury told the court that it was deadlocked on the arson and aggravated arson charges, but that it had reached a verdict on the murder counts. The verdict was not guilty.

The retrial on the arson and aggravated arson charges began in December of 1985. On the day before trial, Rosario unsuccessfully moved in limine for the exclusion of all testimony concerning the death of the child.

The State presented 12 witnesses, whose testimony is summarized as follows.

On August 23, 1984, Bernard Roque and Jimmy Lorenz, neighbors of the victims, stopped Rosario as he was removing a radio from a car parked in front of 1822 North Karlov in Chicago. The automobile belonged to Victor Castro, who signed a complaint against Rosario at the police station.

George Mercado testified that he was with Rosario on the night of August 23 and that they went to the 1800 block of North Karlov to steal a car radio. Mercado, who acted as lookout and escaped from the scene, was arrested shortly after Rosario was taken into custody.

The following day Rosario visited Mercado. Rosario had just been released from jail on his own recognizance for the theft of the car radio. He told Mercado that he was angry about a fight that he had gotten into in jail. Later that day, Rosario came to the gas station where Mercado worked and purchased some gasoline.

On August 25, 1984, Bernard Roque arrived home at approximately 4:30 a.m. He smelled gas but could not locate the source. While he was taking a shower, he heard an explosion. He looked out of a window and saw that the house across the street, 1822, was engulfed in flames.

Elba Diaz and her three children lived in the first-floor apartment at 1822 North Karlov. Mrs. Diaz was awakened by an explosion and saw that the whole back porch was on fire. She rescued two of her children but could not retrieve the third because of the intensity of the smoke. She then ran up to the second-floor apartment to alert her neighbor and ask for help. The neighbor could not rescue the child either but got his own family out of the building.

When firemen arrived, Mrs. Diaz' daughter was removed from the building. She did not survive.

The cause of the fire was later determined to have been a flammable liquid accelerant that was poured on the deck of the porch and ignited.

Detective Roland Paulnitsky talked to Victor Castro at the scene of the fire several hours later. Castro pointed out defendant's automobile, which had just driven past the scene of the fire. Castro saw defendant point to the burned house and smile.

Paulnitsky reviewed the theft complaint signed by Castro against Rosario. He decided to speak to Rosario and Mercado. Detective Ronald Branum accompanied him to find Mercado.

Mercado led the detectives to defendant, who agreed to accompany them to the police station for questioning. Once there, the two men were separated. Paulnitsky spoke to Mercado and then Rosario about the theft of Castro's car radio.

Paulnitsky advised Mercado of his Miranda rights and then told him he was investigating the fire. After questioning him, Paulnitsky went back to defendant's interview room and advised him of his rights. Rosario agreed to answer his questions about the fire.

Rosario told the detective that after he was arrested for the theft of the automobile radio and put in the lock-up, he had a fight with another person. He was angry and upset. He purchased a can of gasoline. At approximately 2:30 a.m. Rosario took the gas in a bucket to the address where he believed Victor Castro lived, 1822 North Karlov. There he poured gas onto the porch and threw a gasoline-soaked cloth into a window. He lit a cigarette and threw it on the area he had doused with gasoline.

Based on Rosario's description of the gasoline can and its location, Detective Paulnitsky retrieved the ...


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