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05/16/88 the People of the State of v. Frank Consago

May 16, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FRANK CONSAGO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

524 N.E.2d 989, 170 Ill. App. 3d 982, 120 Ill. Dec. 807 1988.IL.750

Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

On December 10, 1985, the Cook County grand jury indicted the defendant, Frank Consago, on charges of murder, armed violence and unlawful use of a weapon, in connection with the killing of Bonnie McDonald on November 17, 1985. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(2), 33A-2, 24-1(a)(7).) The case proceeded to trial and the jury found Consago guilty of murder and unlawful use of a weapon. Judgment was entered on the verdict and Consago was sentenced to 25 years in the Illinois Department of Corrections.

The defendant, Frank Consago, owned and operated the Upper Deck Lounge, located at 5441 N. River Road in Chicago, Illinois. On November 17, 1985, Consago called the bartender, Bonnie McDonald, into his office to have her count the money in the cash drawer because it was short and Consago suspected that McDonald had taken the money. There was one other employee present in Consago's office at this time, David (a/k/a Chris) Humberg. Consago and McDonald began to argue over the money as McDonald sat at Consago's desk counting the money.

As the argument became more heated, either McDonald or Consago began opening the desk drawers. Consago then opened the desk drawer where he kept a sawed-off shotgun. Consago pulled the gun out and McDonald apparently grabbed at the gun also. The gun fired, and the shot hit McDonald in the chin, killing her instantaneously. Consago then panicked and wiped all fingerprints off the gun. The police were then called.

When evidence was presented to the grand jury resulting in Consago's indictment, the eyewitness, Chris Humberg, was not called. Prior to trial, the defendant made a motion to dismiss the indictment for failure to call Humberg based on the fact that prejudice resulted because Humberg's testimony might have resulted in an indictment for voluntary or involuntary manslaughter instead of murder. In denying that motion, the court stated that the indictment was only a charge and that trial of the case could result in a finding on a lesser included offense. Consago's motion to suppress his confession was also denied after a hearing in which Consago and the two police officers testified. Subsequently, Consago's defense counsel, at the beginning of the trial, additionally requested that the court admonish Consago that the defense counsel was going to concede the unlawful use of weapons charge. The court refused, stating that it was not within the province of the court to admonish a defendant about the trial strategy adopted by his attorneys.

The testimony at trial established that the gun which had been in the desk drawer had a hair trigger, much lighter than the normal pull required for that type of gun, and that before the gun could be fired, the hammer had to be cocked. Further, the evidence established that there was gunshot residue on the victim's hands, and that the gun had been fired at extremely close range. Humberg was not called to testify at trial.

At the close of the trial, the court refused to tender jury instructions on recklessness and involuntary manslaughter. Thereafter, the jury found Consago guilty of murder and unlawful use of a weapon. Judgment was entered on the verdict and Consago received a 25-year sentence. Defendant now appeals.

Defendant presents four issues for review: (1) whether the trial court erred when it refused to tender a jury instruction on involuntary manslaughter; (2) whether Consago was denied effective assistance of counsel when counsel failed to call the eyewitness, Humberg, to testify; (3) whether Consago was denied effective assistance of counsel when counsel conceded Consago's guilt on the charge of unlawful use of a weapon; and (4) whether Consago was denied due process when the prosecutor failed to inform the grand jury of the eyewitness testimony of Humberg.

The first issue defendant raises for review is whether the trial court erred when it refused to tender a jury instruction on involuntary manslaughter. The crux of the offense of involuntary manslaughter is recklessness (People v. Simpson (1978), 74 Ill. 2d 497, 504, 384 N.E.2d 373, 376), and a defendant is entitled to a jury instruction on manslaughter if the record sets forth a basis for it. (See People v. Healy (1988), 168 Ill. App. 3d 349; People v. Brady (1985), 138 Ill. App. 3d 238, 485 N.E.2d 1159.) A person acts recklessly when he or she "consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Ill. Rev. Stat. 1985, ch. 38, par. 4-6.

While recklessness is generally viewed as not synonymous with accidental, that distinction is one which is generally made by the trier of fact. (See People v. Andersch (1982), 107 Ill. App. 3d 810, 818, 438 N.E.2d 482, 488.) One act that courts have found can constitute recklessness and, therefore, prompt an instruction on involuntary manslaughter, is the pointing of a loaded weapon at another and then the discharge of that weapon after a struggle, since such an act is a gross deviation from the standard of care exercised by a reasonable person. (Andersch, 107 Ill. App. 3d at 818, 438 N.E.2d at 488; see People v. Sibley (1981), 101 Ill. App. 3d 953, 428 N.E.2d 1143.) Thus, if some evidence is presented which shows accidental discharge of a loaded weapon, that amounts ...


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