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02/11/88 the People of the State of v. Robert Gacho

February 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

ROBERT GACHO, APPELLANT



SUPREME COURT OF ILLINOIS

522 N.E.2d 1146, 122 Ill. 2d 221, 119 Ill. Dec. 287 1988.IL.172

Appeal from the Circuit Court of Cook County, the Hon. Thomas J. Maloney, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

Following a jury trial in the circuit court of Cook County, the defendant, Robert Gacho, was convicted of the murder, aggravated kidnapping and armed robbery of Aldo Fratto and Tullio Infelise. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), 10-2(a)(3), 18-2(a).) The trial court had granted a pretrial motion to sever the defendant's trial from that of his codefendants, Joseph Sorrentino and Dino Titone. After the jury found the defendant guilty of the above charges, he elected to have the same jury sit in judgment at the death penalty hearing. The jury, finding no mitigating factors sufficient to preclude imposition of the death penalty, imposed the sentence of death. As this is an appeal of a death penalty sentence, this cause comes before this court on direct appeal. Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603.

Katherine De Wulf, the defendant's girlfriend, was the principal witness for the State. She testified that Gacho called her between 10:30 and 11 p.m. on December 11, 1982, and told her that she should drive to his house because he needed her to drive "a back-up car." He said he would call her later, which he did about 1:45 a.m., December 12, directing her to wait five minutes and then to drive to his house. She drove to Gacho's house and parked in the alley behind the residence and waited. She said she saw Joe Sorrentino come out the back door of Gacho's house with Infelise and Fratto walking behind him. She recognized Infelise and Fratto because she had previously seen them at Gacho's auto body shop. She testified that Fratto and Infelise had their hands tied behind their backs as they walked from Gacho's house with Sorrentino. Fratto and Infelise were seated in the back seat of a blue car, which Sorrentino then drove with Titone seated in the front passenger's side. Gacho came from the house and came to De Wulf's car, seating himself on the front passenger side. De Wulf testified that she asked Gacho what was going on, and that he responded, "they would have to take them [victims] somewhere. He didn't know where, but they were going to have to waste 'em." De Wulf said she believed that "waste 'em" meant to kill them.

Gacho had a gun when he entered De Wulf's car, which he asked De Wulf to put in her purse, but she said the weapon was too large to fit into her purse. De Wulf then drove her car, following the vehicle driven by Sorrentino. After proceeding about a block or two, Gacho said he wanted to drive the car, and he switched positions with De Wulf. The two automobiles headed south on the Stevenson Expressway (I-55) for about one-half hour and left the expressway at either Cass or Kingery Road. The cars then traveled down a gravel or dirt road for about 10 minutes, and Gacho stopped the car. Gacho, according to De Wulf's testimony, told her they were waiting to hear gunshots, and she said she heard "several" shots within a few minutes. After hearing the shots, Titone and Sorrentino came to De Wulf's car and Titone reported that they had shot Fratto and Infelise and that they were dead. She said Titone also said that Fratto and Infelise had begged them not to kill them, but that Titone and Sorrentino had "just laughed" at the pleas. She said all four then drove back to Gacho's house and enroute the three men discussed cocaine, which Fratto and Infelise had brought to Gacho's home, but she could not recall what specifically was said.

A Du Page County forest ranger, Robert Stanton, was on patrol at about 9:15 a.m. on December 12, 1982, when he stopped by a parked automobile in the area of the Des Plaines River near Lemont Road. He heard someone pounding inside the trunk and calling for help. Stanton called the Lemont police and paramedics, who arrived shortly thereafter and opened the car's trunk. Two men, both bloodied and with their hands tied behind their backs, were inside the trunk. One man, Tullio Infelise, was alive, and the other, Aldo Fratto, was dead when the trunk was opened.

The defendant made a statement to Assistant State's Attorney John Groark while he was in custody December 12, 1982. The defendant proofread his statement, made corrections to it, and signed it. Groark read the defendant's statement into the record at trial. In his statement, the defendant said that Sorrentino, Titone, Fratto, and Infelise had come to his house on the night of the murders. He said Fratto and Infelise came to his home to sell him cocaine. Gacho further said that the two victims came to his home with "three-quarters of a kilo" of cocaine, a balance-type scale (to weigh the cocaine), and guns. He said Titone and he pulled guns on the victims. He said he had carried a .357 magnum that evening and had put it under the front seat of De Wulf's car. When the defendant and De Wulf waited in De Wulf's car at the crime scene, he first heard three shots, then heard five more shots. Sorrentino and Titone had taken between $1,500 and $2,000 from the victims, of which the defendant got $500. Gacho and his two codefendants then divided up the cocaine at his home, with Titone taking about half; the rest of it was left at his house, but he had asked Sorrentino to take it with him.

The defendant testified at trial, denying any involvement in the murders. He said that he and De Wulf had dated for approximately 1 1/2 years prior to the time of the murders. He said that he and De Wulf had broken up in October 1982, but that she continued to call him and come to see him at his auto body shop. He testified that, while he was in custody at the Burbank police station, a detective "kneed [him] in the back" near the right kidney area. He said one officer also slapped him, hit him in the back, and threatened to take his wife and children away. He said the officers kept telling him that he had shot someone. He also testified that he made a statement to Assistant State's Attorney Groark, but it was simply a reiteration of the information that the two officers had provided him concerning the crimes. The defendant further testified that he did not tell Assistant State's Attorney Groark of the police punching him. He said he signed the statement only because he was "pressured" by the police.

Much of the other testimony at trial will be discussed in reference to the numerous issues raised by the defendant concerning the guilt/innocence phase of his trial. The jury returned a general verdict of guilty on all counts. The defendant was found subject to the death penalty and at the second phase of the sentencing hearing, the State offered in aggravation evidence from the trial and a conviction on a battery charge on September 7, 1982, a misdemeanor for which he was sentenced to one-year probation. In mitigation, the defendant emphasized that he had no significant prior criminal history, that he was not present at the commission of the crimes, and that he worked two jobs to support his wife and two children. The jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trials of Gacho and Titone were conducted simultaneously, with Gacho being tried by a jury while the Judge heard the evidence against Titone. Titone's death conviction was affirmed by this court in People v. Titone (1986), 115 Ill. 2d 413. Sorrentino's sentence to life imprisonment was affirmed by the appellate court in a Rule 23 order on November 17, 1986 (107 Ill. 2d R. 23), and leave to appeal to this court was denied.

The defendant first argues that the detectives investigating the murders violated his rights under the fourth amendment by arresting him in his home without a warrant and without probable cause to believe that he had committed an offense. The defendant's contention was the subject of a pretrial motion to quash his arrest, which was denied.

Officer Stanton, who had discovered the car with the victims inside the trunk about 9:15 a.m., December 12, 1982, testified that, after the trunk was opened by the police, he had asked Infelise who had done this to him and that Infelise appeared to answer "Robert Gott or Gotch." Stanton, though, said it was hard to understand what Infelise was saying because he was in pain and having difficulty breathing. In response to Stanton's question asking where the man he named was located, Infelise answered "Florida."

Officer Robert Johnstone arrived at the scene about 9:30 a.m. and testified he asked Infelise how the injuries had occurred, and Infelise responded "Robert Gotch." He also learned from Infelise that a man named Dino and another named Joe were involved in the shootings. James Houlihan, an investigator in the homicide section of the Cook County sheriff's police, testified at the suppression hearing that when he arrived about noon at the crime scene, investigators Mark Baldwin and Johnstone had already interviewed Infelise. They told Houlihan the information they had obtained about the possible assailants, including that one was referred to as Bob Gacho. Houlihan and his partner later went to Chicago to meet with investigators James Coakley and Jerry Smith at the Area Three Violent Crimes facility. Coakley told Houlihan that he had had a conversation with Infelise at the hospital emergency room and that Infelise had named Robert Gacho and two other men named Dino and Joe as those involved in the shootings. From a police arrest record of Gacho, Houlihan also learned Gacho's address and description.

Houlihan then went to the house of Tullio Infelise to notify Mrs. Infelise that her husband had been shot. Tullio Infelise's brother, Frank, was also at the house and informed Houlihan that he knew Robert Gacho because he worked with another brother, Rosario. Frank Infelise thought his brother, Tullio, and his uncle, Aldo Fratto, had met Gacho at his house the night before, although he was not certain. Frank Infelise then went with Houlihan to Gacho's residence at about 2 p.m. When they arrived at Gacho's house, no one was home. They returned to Gacho's house about 40 minutes later where they saw a man on the front steps who matched the description of the defendant. Besides Houlihan, Officers Smith and Coakley and other investigators were present. After the police knocked on the door, the defendant came to the door and identified himself. At the investigators' request, Gacho came outdoors, was told the police wanted to talk to him about a shooting in Lemont, and was advised of his Miranda rights. He signed a consent form to allow police to search his house.

The defendant testified at the suppression hearing that seven or eight police officers arrived at his home on the afternoon of December 12. When he came to the front door of the house, three or four officers pulled him out of the house as soon as he opened the door. He signed a form that granted permission to the police to search the house, but the form was blank when he did so.

The trial court found that the police had "abundant probable cause" to arrest Gacho and that exigent circumstances existed to justify the arrest on the front porch of his house. A reviewing court will not disturb a trial court's ruling on a motion to quash arrest unless that finding is manifestly erroneous. (People v. Cabrera (1987), 116 Ill. 2d 474, 485-86.) Probable cause exists where the police "have knowledge of facts which would lead a reasonable man to believe that a crime has occurred and that it has been committed by the defendant." (People v. Wright (1985), 111 Ill. 2d 128, 145 (quoting People v. Eddmonds (1984), 101 Ill. 2d 44, 60, cert. denied (1984), 469 U.S. 894, 83 L. Ed. 2d 207, 105 S. Ct. 271), cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 179, 107 S. Ct. 1327.) Also, "In dealing with probable cause, . . . we deal with probabilities. . . . hey are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." (Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310; see also People v. Reynolds (1983), 94 Ill. 2d 160, 166.) Our review of the record persuades us that the police had probable cause to arrest Gacho when they did. Much of the collective information known to the investigators in this case pointed to Gacho as one of the assailants. The surviving victim, Tullio Infelise, had told the first officer at the crime scene that a "Robert Gott or Gotch" was involved in the shootings and, responding to two other officers, gave the proper pronunciation of the defendant's name. Houlihan gathered more information from police records that showed that Gacho lived in the area of Infelise's house. Too, Houlihan was justified in relying on the information provided by Frank Infelise concerning Gacho's address and that he was pretty sure his brother and uncle met with Gacho the prior night. (People v. Bean (1981), 84 Ill. 2d 64, 68-69, cert. denied (1981), 454 U.S. 821, 70 L. Ed. 2d 93, 102 S. Ct. 106.) This information, gathered by various officers, would "'warrant a man of reasonable caution in believing that . . . the person arrested has committed the offense.'" (People v. Shum (1987), 117 Ill. 2d 317, 355, citing People v. Blitz (1977), 68 Ill. 2d 287, 292, cert. denied (1978), 435 U.S. 974, 56 L. Ed. 2d 68, 98 S. Ct. 1622.) As such, the trial court was correct in finding that the warrantless arrest was supported by probable cause, and we cannot say its decision finding exigent circumstances was against the manifest weight of the evidence. People v. Montgomery (1986), 112 Ill. 2d 517, 528.

The defendant also argues that his rights under the fifth and sixth amendments were violated when he was interrogated after he requested an attorney. He claims that his testimony that he requested an attorney is uncontradicted and that continued interrogation was violative of his fifth amendment rights under Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. The State first says the issue was waived by the defendant's failure to raise it in his motion for a new trial, and, secondly, the fact is that the defendant did not request an attorney.

The defendant testified at the suppression hearing that when he was brought into the interrogation room at the police station, the police began asking him questions. He said they asked him if he wanted an attorney, and he said he did. The defendant said he only signed a form waiving his rights because the police had told him to sign it. He further testified that the police continued asking him questions, and that he continued telling them he would rather talk to an attorney before answering. He said one officer repeatedly told him that he was involved in a shooting. He said the police slapped him, hit him, would not allow him to talk to an attorney, and instructed him not to tell Assistant State's Attorney Groark about being beaten. The defendant also testified he told Groark that he would make a statement after he was allowed to place a phone call. He said he made a phone call to a friend about obtaining an attorney. He told Groark that he had made the call, but did not tell him that he could not get through to his friend on the phone. He testified on cross-examination that he did not tell Groark that he wanted an attorney, nor did he tell him that he wanted an attorney appointed for him.

Officer James L. Jordan testified at the suppression hearing that he took the defendant from his home to the Burbank police department facility at 4:15 p.m. He said he almost immediately read the defendant his Miranda rights, which the defendant acknowledged and then signed a written statement waiving those rights. The defendant said he would talk to the officer. Jordan testified he neither punched the defendant nor saw any other officer hit him. Another investigating officer, Thomas Adamski, testified substantially the same. He testified that the defendant gave his statement about 11:30 p.m., and he was present when the defendant and Assistant State's Attorney Groark signed it. Adamski said he heard both Jordan and Groark advise the defendant of his rights.

Groark testified at the suppression hearing that he first spoke to the defendant about 6:45 p.m., advising him of his rights under Miranda, and then speaking with him for about 20 minutes. According to Groark, the defendant later agreed to make a statement to police if he was first allowed to make a phone call. Groark testified that the defendant made the requested phone call and then made his statement. Groark said he did not see anyone strike the defendant, that the defendant did not request any medication, that the defendant did not complain of any physical disability, and that he did not threaten to lock up the defendant's wife or girlfriend.

The trial court denied the motion to suppress, finding that "the defendant's assertions and allegations appear unlikely and improbable." It is established that a trial court's ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Garcia (1983), 97 Ill. 2d 58, 74, cert. denied (1984), 467 U.S. 1260, 82 L. Ed. 2d 856, 104 S. Ct. 3555.) Under Miranda and its progeny, once an individual states that he wants an attorney, all interrogation must cease until an attorney is present. (Miranda v. Arizona (1966), 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627.) The defendant's assertion that his testimony concerning his requests for an attorney was uncontradicted is belied by the extensive record of the hearing on his motion. Not only did three persons testify they had either admonished the defendant or heard someone else admonish him as to his concerned constitutional rights, but the defendant admitted he never told Groark, the assistant State's Attorney who took his statement, that he wanted an attorney, and he signed a statement waiving his rights. The defendant said he wanted to first make a phone call, and by his own admission, he made the phone call, and then did not tell the officers that he could not get through to the party he said he was attempting to reach. The trial court was entitled, after observing the witnesses testify, to disbelieve the defendant's version of what transpired. There was no error in its ruling.

The defendant also contends that the trial court violated his rights under the sixth and fourteenth amendments by excusing prospective juror Thelma Jackson for cause. The defendant's argument is based on the following colloquy between the court and prospective juror Jackson:

"THE COURT: . . . So do you know of any other reason why you couldn't be a fair and impartial juror?

A. No, but I do not think I believe in the death penalty.

Q. You do not believe that you could consider the imposition of it? Under any circumstances?

A. I would rather not.

Q. Wellis it that you couldn't?

A. WellI mean if the circumstances were -- No, I would rather not.

Q. Wellall right. We will excuse you for cause.

A. Okay. Thank you."

The State argues that, firstly, the issue is waived because the defendant did not object to the Judge's excusal for cause, and that, on the merits, the prospective juror had in practical terms responded "no" to the Judge's query of whether she could ...


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