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04/13/88 the People of the State of v. Anthony Nightengale

April 13, 1988





523 N.E.2d 136, 168 Ill. App. 3d 968, 119 Ill. Dec. 668 1988.IL.517

Appeal from the Circuit Court of Cook County; the Hon. Arthur Cieslik, Judge, presiding.


JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.


Following a jury trial, defendant Anthony Nightengale was convicted of attempted murder, aggravated battery and attempted armed robbery. Defendant was sentenced to 40 years in the Illinois Department of Corrections. On appeal, defendant argues that: (1) evidence of defendant's flight and possession of bullets when arrested was unfairly prejudicial; (2) the identification testimony of one witness was vague and did not establish guilt beyond a reasonable doubt; (3) the trial court erred in not granting defendant's motion to suppress identification testimony because defendant's lineup was blatantly suggestive in that defendant was forced to wear jail clothing in that lineup; (4) the prosecutor used inflammatory language and made racial statements which prejudiced defendant's right to a fair trial; (5) the prosecutor used peremptory challenges to systematically exclude blacks from the jury; (6) the trial Judge erred in informing the venire panel of defendant's custodial status and in allowing the deputy sheriff to sit close to the defense table; and (7) the trial Judge's threats of contempt sanctions against defense counsel deprived defendant of effective assistance of counsel. We reverse and remand for a new trial.

On October 18, 1978, Marko Hainovic was working in the toolroom of his place of employment at 222 E. Pearson Street, Chicago. Hainovic was the maintenance man for the 222 E. Pearson Street building. While at work, Hainovic saw Ted Flammer, the doorman for the building, come down the stairs followed by another man. The man behind Flammer had a gun pointed towards Flammer's back. This man pushed Flammer into the toolroom, placed the gun to the back of Hainovic's head and asked him for money. When Hainovic informed the man that he had no money, the man shot Hainovic in the back. Hainovic then ran to the stairs but the man shot him again in the buttocks and in the hand. Hainovic made it out of the building, ran to the corner of DeWitt and Pearson and collapsed. Hainovic was found lying at that corner by Chicago police officer Tim Brophy, who responded to a disturbance call.

Approximately 12 days later, on October 30, 1978, defendant was walking down South Calumet Street when he was stopped by Officer Darryl White and his partner. Officer White told defendant to get into the car and come to the police station with them for a "name check." Defendant refused to get into the car, drew a pistol from his pants, pointed it at the officers and ran. Defendant was subsequently arrested a few blocks away. While searching defendant, the police recovered the pistol he had drawn on the officers and a brown leather pouch which contained 23 bullets. Defendant was then taken to the police station and charged with unlawful use of weapons.

On the morning of January 3, 1979, while still in custody on the unlawful use of weapons charge, defendant was removed from his cell at the Cook County jail and placed in a lineup at the 2452 West Belmont Avenue police station. Defendant was dressed in the standard prison uniform shirt and pants, which were marked "DOC" (Department of Corrections). Before leaving the jail, defendant requested street clothes, but prison personnel could not locate defendant's civilian clothes. When defendant arrived at the station, he requested that his attorney be contacted. Defendant also asked to speak with a public defender. Defendant was then placed in a lineup with four other men for Hainovic's viewing. Defendant was the only person in the lineup wearing prison clothes, and the "DOC" letters were visible to Hainovic. Defendant was also the only individual wearing a bracelet on his right wrist which inmates at the Cook County jail are required to wear. Upon viewing the lineup, Hainovic identified defendant as the man who shot him on October 18, 1978.

At trial, defendant was represented by private counsel. On January 22, 1980, defendant's attorney appeared on behalf of his partner and informed the Judge that his partner was otherwise engaged. Defense counsel then stated that he would try the case if the court would grant him a continuance of a couple of days for preparation. The court granted counsel a continuance of one day. Defense counsel filed his appearance and additional pretrial motions, including a motion to suppress identification testimony, on January 23, 1980. The trial Judge granted counsel leave to file the suppression motion, but stated that he felt the motion was without merit and "in the nature of a dilatory tactic."

On January 24, 1980, during jury selection, the trial Judge informed the venire panel that defendant did not appear in court because there were some problems at the jail and defendant was in custody. Defense counsel objected to the trial court's statement and on January 25, 1980, counsel moved to have the venire panel dismissed. The Judge denied counsel's motion to suppress and again advised counsel that, in the court's opinion, the motion was made merely for purposes of delay. Defense counsel requested a one-day continuance to research the issue, but the Judge granted him only 30 minutes. According to the record, the assistant State's Attorneys openly laughed at defense counsel's argument and request for continuance. Following the 30-minute recess, counsel presented his authority in support of his argument. After a heated Discussion between defense counsel and the trial court, counsel's motion to dismiss the jury venire was denied. The Judge then threatened to hold counsel in contempt.

Thereafter, on January 28, 1980, during jury selection, defense counsel moved to prevent the State from using its peremptory challenges to systematically exclude blacks from the jury. This motion was denied. After the State had excluded five of the six prospective blacks from the jury, defense counsel renewed his motion. After denying counsel's motion, the trial court accused counsel of lying and threatened to cite him for contempt. Due to the conflicts between defense counsel and the Judge, defense counsel then requested leave to withdraw from the case. This request was denied and trial began the following day.

At trial, the Judge admonished defense counsel several times with a contempt citation. After approximately three contempt warnings, the trial court found defense counsel in contempt of court in a sidebar conference. This contempt citation followed the denial of defense counsel's objection to a State's question. Although defense counsel made repeated requests to withdraw as defendant's counsel because he believed the impending contempt sanctions interfered with his ability to vigorously represent his client, the court informed defense counsel that he would be subject to substantial sanctions if defense counsel persisted in his request for leave to withdraw as counsel. Defense counsel then moved for a mistrial, which was denied.

During the repeated disagreements between defense counsel and the Judge, the record reflects open mockery by the assistant State's Attorneys of defense counsels attempts to adequately and vigorously represent his client. In closing argument, an assistant State's Attorney alluded to the fact that fingerprints may have been taken when none were introduced. Defendant was then characterized as "a debased animal" and "scum" who committed a crime in "our streets" and not in "some ghetto." After deliberation, the jury returned with a verdict of guilty on all charges. This appeal followed., Defendant first argues that the admission of evidence of defendant's flight and possession of bullets when arrested was unfairly prejudicial. We disagree.

Evidence of flight is admissible as a fact from which the jury may infer consciousness of guilt. (People v. Miscichowski (1986), 143 Ill. App. 3d 646, 656, 493 N.E.2d 135, 139; People v. Griffiths (1983), 112 Ill. App. 3d 322, 328, 445 N.E.2d 521, 527.) Moreover, as a general rule, physical evidence is admissible provided there is proof to connect it with a defendant and with the crime charged. (People v. Free (1983), 94 Ill. 2d 378, 415-16, 447 N.E.2d 218, 236.) It is not necessary that the object actually be used in committing the offense, just that the object is at least suitable for the commission of the offense. (People v. Givens (1985), 135 Ill. App. 3d 810, 819, 482 N.E.2d 211, 217.) The mere fact that evidence may tend to prejudice a defendant does not render that evidence per se inadmissible. The issue is whether the prejudice to the defendant is outweighed by the probative value of the evidence.

In this case, the record indicates that defendant was walking down the street when he was stopped by the police and asked to come to the police station for a "name check." Defendant refused, pulled a gun on the police officers and then ran. The probative value of evidence of defendant's flight is that the jury could infer that defendant had something to hide from the police officers because he fled when they simply asked to speak with him and take defendant to the station for a "name check" identification. The probative value of the bullets lies in the fact that the ballistics test run on the gun defendant possessed indicated that it was the gun used to shoot Hainovic, and the bullets defendant possessed when arrested were for that caliber of weapon. Therefore, defendant's argument that this evidence was far more prejudicial than probative must fail.

Next, defendant argues that the identification testimony of one witness, Hainovic, was vague and did not establish defendant's guilt ...

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