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04/29/88 the People of the State of v. Mark Anthony Morando

April 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MARK ANTHONY MORANDO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

523 N.E.2d 1061, 169 Ill. App. 3d 716, 120 Ill. Dec. 150 1988.IL.636

Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Defendant appeals from his conviction at a capital jury trial and sentence by the trial Judge to natural-life imprisonment without parole for the murder and armed robbery of a 57-year-old woman.

The issues on appeal are:

(1) Whether the trial court properly refused a defense request to recall a prosecution witness for cross-examination as to bias, interest, or motive to testify.

(2) Whether the State failed to establish the corpus delicti necessary to prove defendant guilty of armed robbery beyond a reasonable doubt.

(3) Whether the trial court properly instructed the jury regarding circumstantial evidence.

(4) Whether defendant's sentence was excessive and whether the trial court properly considered the question of lack of remorse in sentencing defendant.

(5) Whether the trial court properly permitted cross-examination of defendant as to his prior stealing.

(6) Whether the trial court properly permitted photographs of the victim, which had been admitted into evidence, to be taken to the jury room.

(7) Whether the State's closing argument contained improper remarks that had a material effect on the jury's verdict.

For the reasons that follow, we affirm.

Facts

Irene Dominick, the victim in this case, was shot once and killed at the rear entrance of her house at 5300 South Merrimac Avenue in Chicago between 7:30 and 8 p.m. on May 10, 1984. At trial, which began on October 28, 1985, her son testified that she had been wearing her rectangular, four-carat, yellowish diamond ring earlier on the day of her slaying, but it was not found on her body.

According to three prosecution witnesses, including one who knew neither defendant nor the other witnesses, defendant was seen crossing the street in the direction of the victim's house prior to the killing. In addition, one of defendant's acquaintances and one 11-year-old prosecution witness who was not acquainted with the other witnesses testified that they saw defendant running from the direction of the victim's house carrying a handgun just after the killing, although the juvenile witness had some initial difficulty in identifying defendant in the courtroom, where an exhibit blocked the view of defendant.

Two friends of defendant's testified that at about the time of the killing he had hurriedly entered their red Oldsmobile car while carrying a pistol and a large, rectangular ring, told them to drive away quickly, and informed them that he had had to shoot the lady on the corner because she would not give him her ring. They testified that he had left the car a short while earlier with the announced intent of collecting his sunglasses from the house of one of these friends; later, a pair of sunglasses identified as defendant's was recovered from that house. One of these friends testified that some five years earlier, defendant had expressed a desire to have the victim's ring.

Another witness from Tampa, Florida, testified to defendant's having made statements about contemplating stealing and about wishing to sell a ring that he claimed to have received from his grandmother. This witness and another from Tampa also testified that, soon after the killing, defendant produced a large, rectangular ring in Tampa and offered to sell it. Other witnesses testified that defendant had threatened one of them with an automatic pistol on the afternoon of the killing and that he had had the gun throughout the day and acted nervous, impatient, and intent on some mission.

The two friends of defendant's testified that, at his request after the killing, they drove him to an address in Lyons Township, where they left him.

One witness testified that in the early afternoon of the killing, he received a telephone call from defendant, who claimed that he had just been at the witness' house but no one was there; the witness testified that defendant then appeared two minutes later. The witness also stated that he, his stepfather, and another man were sitting in the living room with the front door open at the time defendant claimed to have found no one at home. Telephone company records showed that a call from the victim's house to the witness' house had been placed at 1:42 p.m. that afternoon.

When defendant took the stand, he testified that he was 19 years old at the time of the killing, that he had lived in Tampa for four months, and that he had returned to Chicago a few days before the killing because his friend Frank Jones (one of the witnesses against him) had asked his help in selling a ring. Defendant testified that when he first arrived at Jones' house, Jones said he did not have the ring there but that they could discuss it later. Defendant acknowledged having called Jones' house early on the afternoon of the killing but claimed that he had called from a doughnut shop a considerable distance away, then traveled to the Jones house, where he talked with Jones, his stepfather, and the same friend that had been identified earlier.

Defendant denied having had or seen a gun that day, and he denied threatening anyone with a gun. According to defendant, Jones and Jones' girlfriend had dropped him off at his house between 6 and 7 p.m. and had returned to his house about an hour later but said that they could not take him back to Jones' house because of trouble there. Defendant said that as they drove, Jones produced a ring and gave it to him to sell. Defendant testified that they then went to a house in Lyons, found no one at home, and then drove to a motel in Cicero, where he was dropped off and registered under a false name because of outstanding traffic warrants in Cicero.

Defendant testified further to having called his father from the motel and having been informed that the police were looking for him. He said he then called the police at the number his father gave him but that the policeman who answered told him, "You little bastard, we are going to kill you if we catch you." Defendant said that he then left for Florida, where he sold the ring. He said he later decided to return to Chicago to clear his name and turned himself in to police in the company of Russ Ewing, a television reporter.

Defendant testified on cross-examination that, though such statements were contained in a written document prepared by an assistant State's Attorney and signed by him, he had never told the assistant State's Attorney that he owned a certain pair of sunglasses or that he had ever made a telephone call from the victim's house on the day of the killing. He said that the assistant State's Attorney had tricked him into signing such statements.

A defense witness also testified to having seen two young men lurking behind the victim's garage at about 7:15 p.m. on the evening of the killing and that they then entered a red car that was probably a Pontiac and drove away. The witness testified that 20 minutes later he was approached to help the victim, whom he found lying in her backyard trying to get up.

Opinion I. RECALLING WITNESS

Defendant contends that the trial court committed reversible error by refusing to allow his counsel to recall a prosecution witness, Frank Jones, for cross-examination as to bias, interest, or motive to testify that might be based on pendency of an alleged aggravated-battery police investigation involving him. Defendant contends that his counsel were unaware of the allegedly pending investigation until after the witness had left the stand.

A defendant may impeach a witness with prior arrests or convictions to show that the witness' testimony might be influenced by interest, bias, or a motive to testify falsely. (People v. Mason (1963), 28 Ill. 2d 396, 400-01, 192 N.E.2d 835, 837.) Such cross-examination is a matter of right (People v. Triplett (1985), 108 Ill. 2d 463, 475, 485 N.E.2d 9, 15), subject to the trial court's sound discretion to prevent repetitive or unduly harassing questioning (Triplett, 108 Ill. 2d at 475, 485 N.E.2d at 15; People v. Reese (1984), 121 Ill. App. 3d 977, 987, 460 N.E.2d 446, 453), and impeachment may include charges that have been stricken but that still may be reinstated (Triplett, 108 Ill. 2d at 482, 485 N.E.2d at 18). A jury is entitled to know the nature of such charges in order to have complete information that will better enable it to resolve the bias question. (Reese, 121 Ill. App. 3d at 988, 460 N.E.2d at 453.) However, reversal of a trial court's decision as to such impeachment cross-examination, including a decision on requested recall for cross-examination after close of the adversary's case, is warranted only where there is an abuse of discretion resulting in manifest prejudice to a defendant. People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605, 610; Reese, 121 Ill. App. 3d at 988, 460 N.E.2d at 453.

In the present case, defendant contends that his trial counsel were informed by the prosecutors on the first day of trial as to a three-week-old arrest of Jones but were then told by the prosecutors that the case had been dismissed. However, the record discloses that the prosecutors told defense counsel, and that defense counsel so acknowledged, merely that, according to the prosecutors' computer, Jones had been arrested but not charged. When defense counsel summarized by saying that "[the] net result is that the charges then were dismissed or there were no charges placed," the prosecutor replied that "[we're] not going to even attempt to ask him those questions as to a pending case or if they were dismissed or how they were dismissed." The prosecutors told the court in defense counsel's presence that "[we] certainly understand that he was [arrested but not charged]. He [defense counsel] can ask about that, never brought to the felony review unit, just not charged. I'm not going to ask him."

When cross-examining Jones, defense counsel quite perfunctorily asked Jones about being arrested for aggravated battery. Defendant contends that not until his counsel had interviewed the alleged battery victim, who could not be reached before Jones' cross-examination, did counsel receive information that the police were actually holding the investigation open against Jones and that a police detective involved in the arrest of defendant was also involved in arresting and releasing Jones. Defendant contends that, had his counsel had such information at the time of cross-examination, they would have inquired further while Jones was on the stand.

After hearing argument, the trial Judge stated that the only evidence of a pending case against Jones was hearsay and speculation and that he was denying defendant's motion for a mistrial. However, the Judge permitted an evidentiary hearing at which the detective was questioned as to the allegedly pending investigation of Jones. The detective testified that he had not realized Jones would be a witness against defendant until after Jones was arrested and that he had subsequently released Jones because Jones had been hospitalized, he felt Jones would not leave the jurisdiction, the battery case did not seem substantial, and a police officer who was on furlough was in charge of any battery investigation involving Jones. The detective denied that anyone had discussed with or given Jones preferential treatment regarding the battery case in connection with Jones' testifying against defendant in the instant case. The detective stated that the battery case was still open.

After the evidentiary hearing, the trial Judge told defense counsel that they had had ample opportunity to cross-examine Jones, and the Judge stated that "[we] do know [Jones] was arrested. The jury knows he was arrested. You brought all of that out. The hanky panky of the police department has been adequately explained. So, let's proceed with the case." In prefacing his denial of the request to recall Jones for further cross-examination, the Judge asked:

"What difference would it make?

I think the question is, did the police do something wrong and I feel it's adequately explained. I think the jury is aware of everything that they could become aware of. At this point it is some kind of witch hunt basically bringing out that Frank Jones was arrested on October 5th for aggravated battery. And that is all in the record already.

What more you could bring out, I don't know except put him on the stand and almost get into a question of how, what the victim said and what they didn't say and so forth. It really has nothing to do with this case."

In denying the request to recall Jones, the Judge then said: "I am planning on proceeding with the trial. This is the fifth day of trial. I have given you every opportunity and it has been adequately explained to the Court. I don't think there is any hanky panky at all."

Defendant now cites People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9, and People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708, to support his contention that he should have been allowed to recall Jones. However, Triplett involved a complete preclusion from questioning a witness about his juvenile record, and Barr involved a prohibition on questioning a witness about criminal charges that might have been dropped in exchange for testimony. (Triplett, 108 Ill. 2d at 473, 485 N.E.2d at 14; Barr, 51 Ill. 2d at 51-52, 280 N.E.2d at 710.) In the present case, defendant was not prohibited but was afforded full opportunity to cross-examine Jones as to the aggravated-battery arrest while Jones was on the stand. The only prohibition was on defendant's recalling Jones to question him further at a point when the State was about to rest its case in chief, and the trial court has the discretion to prevent repetitive or unduly harassing impeachment cross-examination, under the authority of Triplett -- the very case cited by defendant. Triplett, 108 Ill. 2d at 475, 485 N.E.2d at 15.

In any event, even if refusal to allow a witness to be recalled for impeachment is error, it is harmless error where there is proof beyond reasonable doubt of a defendant's guilt. (Smith, 149 Ill. App. 3d at 153, 500 N.E.2d at 611; People v. Dorsey (1982), 109 Ill. App. 3d 218, 229, 440 N.E.2d 394, 401-02, appeal denied (1982), 92 Ill. 2d 569, cert. denied (1983), 460 U.S. 1053, 75 L. Ed. 2d 933, 103 S. Ct. 1503.) Because of the overwhelming evidence of defendant's guilt in the present case, we decline to disturb the trial court's ruling as to recalling Jones for further cross-examination. II. PROOF OF ARMED ROBBERY

Defendant contends that there was no evidence of armed robbery except uncorroborated evidence of his statement and that therefore the corpus delicti was not established and his armed-robbery conviction should be reversed. Defendant also asks that his murder sentence be vacated and the cause remanded for resentencing, since his murder sentence was based partly on the armed-robbery conviction.

The corpus delicti cannot be proved by a defendant's confession alone; there must be either some independent evidence or corroborating evidence outside of the confession that tends to establish that a crime occurred. (People v. Lambert (1984), 104 Ill. 2d 375, 378-79, 472 N.E.2d 427, 428, citing People v. Willingham (1982), 89 Ill. 2d 352, 360, 432 N.E.2d 861, 864.) If the independent or corroborating evidence itself tends to prove that the offense occurred, then if it corroborates the confession it may be considered with the confession to establish the corpus delicti. (Lambert, 104 Ill. 2d at 379, 472 N.E.2d at 429.) It has been stated that the independent evidence itself need not establish beyond a reasonable doubt that an offense did occur but may merely tend to prove that an offense occurred. (Lambert, 104 Ill. 2d at 381-82, 472 N.E.2d at 430, citing Willingham, 89 Ill. 2d at 361, 432 N.E.2d at 864 (Simon, J., specially Concurring).) It is the jury's function to assess credibility of witnesses and the weight to give their testimony (People v. Brisbon (1985), 106 Ill. 2d 342, 360, 478 N.E.2d 402, 410), and a reviewing court will not set aside a criminal conviction unless the evidence is so unsatisfactory as to create a reasonable doubt of guilt (People v. Adams (1985), 109 Ill. 2d 102, 115, 485 N.E.2d 339, 342).

In the present case, corroborating evidence of defendant's alleged confession to robbery is found in several eyewitnesses' testimony that defendant displayed and offered to sell a ring that resembled what another eyewitness testified was the ring owned by the victim. In addition, the victim's loss of her ring is corroborated by eyewitness testimony that immediately after her death it was missing although she had worn it earlier in the day.

Defendant cites two cases in support of his contention. (People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705, cert. denied (1984), 469 U.S. 866, 83 L. Ed. 2d 140, 105 S. Ct. 209; People v. Lee (1986), 151 Ill. App. 3d 510, 502 N.E.2d 399, appeal denied (1986), 112 Ill. 2d 564.) However, in Taylor, the slain victim's intoxication was a reason to be uncertain as to whether he had already parted with his money, watch, and wallet prior to the alleged robbery attempt; in addition, the defendant made no confession. Accordingly, an attempted robbery was not proved. (Taylor, 101 Ill. 2d at 514-15, 463 N.E.2d at 709.) In Lee, though the victim was shot and the defendant confessed to shooting him, the victim did not complain of an armed-robbery attempt, and proof of shooting alone did not corroborate the defendant's confession to attempted armed ...


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