APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
530 N.E.2d 1026, 176 Ill. App. 3d 35, 125 Ill. Dec. 617 1988.IL.1535
Appeal from the Circuit Court of Cook County; the Hon. William Prendergast, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
Following a trial by jury, defendant, Louis Rainone, was convicted of murder and was sentenced to a term of 40 years. Defendant appeals, contending that he was denied a fair trial due to improper reference to the victim's family; improper limitation of cross-examination; and improper prosecutorial comment during its closing statement. Defendant further contends that the sentence imposed was excessive.
On June 8, 1984, Roman Rys was standing on a street corner with his girlfriend when defendant and codefendant, Gustavo Bujdud, approached the corner, each carrying a weapon. Defendant and Bujdud pointed their weapons at a group of teenagers gathered in a nearby parking lot and then proceeded further, toward the corner. They next encountered John Odle, who was standing in an alley near the corner. They pointed their weapons at Odle and defendant told him to move. The pair then crossed the street and stopped approximately 15 feet from Rys and his girlfriend. Defendant and Bujdud shot and killed Rys.
Defendant and Bujdud were apprehended by police officers responding to a radio broadcast regarding the shooting. The officers found a rifle and a shotgun in the vehicle in which the two men were traveling. Defendant and Bujdud were arrested and were taken to the police station. A lineup was conducted approximately 1 1/2 hours after the shooting. Three eyewitnesses, John Odle, Kelly Quinn, and Michelle Angelilli, identified defendant as a gunman who had shot Rys.
Defendant was charged with murder and armed violence and was tried separately from Bujdud in a jury trial. At trial, the three eyewitnesses again identified defendant as the man who fired the shotgun at Rys. Further testimony linked the deceased, as well as some of the witnesses, with various local gangs. (Bujdud has filed a separate appeal which is pending in this court.)
The State called the deceased's father to testify as a life and death witness concerning his son. During the course of his testimony, Miroslav Rys indicated that he and his family had emigrated to the United States from Czechoslovakia in 1968 after the Russian invasion. He gave the names of his wife and two children and the ages of his children when the family came to the United States. He further testified as to the deceased's educational and employment background, as to his intention to join the Army, and as to the deceased's possible gang affiliation.
Defendant testified in his own behalf. He stated that he had belonged to a gang and that his gang and that of the deceased were rivals at the time of the trial. Defendant denied shooting the deceased, stating that he was with Bujdud that evening but was intoxicated and had fallen asleep in Bujdud's car.
Defendant first contends that he was denied a fair trial by the introduction of evidence and comment by the prosecution regarding the deceased's family. He claims that the comments and the evidence which preceded them were a calculated attempt to prejudice defendant. The evidence and comments complained of were as follows. In his opening statement, the prosecutor made reference to the fact that the deceased's family had emigrated to the United States in 1968. The trial court overruled an objection to the comment. The prosecutor made a similar comment in his rebuttal closing argument. There he stated that defendant's father had emigrated to the United States "because of the freedoms." The trial court again overruled objections to these comments.
In addition, the deceased's father testified that he, his wife and his two children had settled in Cicero after leaving Czechoslovakia in 1968. He recited background information about the deceased including the fact that the deceased had a brother who was killed in Germany and the fact that the deceased recently had enlisted in the Army. Defendant made a continuing objection and later moved for a mistrial. The trial court overruled defendant's objection as to the family background and noted for the record that a certain amount of historical background was appropriate. The trial court then sustained the objection as to the witness' comments regarding the deceased's brother. The motion for mistrial was denied.
Although our courts continue to proscribe the use of evidence and remarks of this character, every mention of a victim's family does not necessarily entitle the defendant to a new trial. In many cases, particularly in those in which the death penalty is not imposed, such evidence and argument can be harmless. (People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626; People v. Jordan (1967), 38 Ill. 2d 83, 230 N.E.2d 161.) When the testimony regarding the victim's family is elicited as background information, is not unduly emphasized, and is not presented in a manner which would lead the jury to believe it material to the issue of defendant's guilt, the error, if any, in its admission is harmless. (People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218; People v. Smith (1987), 154 Ill. App. 3d 837, 507 N.E.2d 543.) Conversely, there is error when testimony and evidence are presented in a manner which permits the jury to believe them to be material to the verdict. (People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436.) Such improper presentation includes ...