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05/10/89 the People of the State of v. Ricky A. Manzo

May 10, 1989





539 N.E.2d 237, 183 Ill. App. 3d 552, 131 Ill. Dec. 884 1989.IL.701

Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.

Rehearing Denied June 21, 1989.


JUSTICE McNAMARA* delivered the opinion of the court. RIZZI and WHITE, JJ., concur.


Following a jury trial, defendant, Ricky Manzo, was convicted of attempted murder and was sentenced to a six-year prison term and fined $3,000. Defendant appeals, alleging that the trial court erred in denying his motion for a mistrial when the State failed to comply with discovery requirements; that the State failed to prove him guilty of attempted murder beyond a reasonable doubt; that the trial court improperly instructed the jury; and that the trial court erred in denying defendant's motion to suppress oral and written statements.

During opening statements at trial, the prosecutor informed the jury regarding the evidence which would be introduced. The prosecutor specifically quoted two oral statements which defendant had made to the complainant, Ricardo Ramirez. Defense counsel asked for a sidebar and moved for a mistrial, alleging that the State violated discovery requirements by not tendering these statements to defense counsel as requested.

The State acknowledged that the statements were not in the materials tendered to defendant during discovery. The State maintained, however, that defense counsel would have been aware of these statements had Ramirez been interviewed. The court ruled that it would not preclude the statements and denied the motion for a mistrial. The court continued the matter until after lunch so defense counsel would have the opportunity to interview defendant regarding these statements. Defendant then presented his opening statement, and the State presented its case in chief.

Ramirez testified for the State that at approximately 2 a.m. on January 3, 1986, he was driving home from work. He stopped in the left turn lane at the traffic light located at the corner of 47th Street and Cicero Avenue. There was little traffic at that hour, but there was a garbage truck also waiting at the light in the far right lane.

Ramirez noticed someone approach his car on the driver's side. Ramirez later identified this individual as codefendant, Jim Kulevich. (Kulevich's trial was severed from that of defendant, and Kulevich is not involved in this appeal.) Kulevich motioned for a ride with his thumb. Ramirez waved his hand back and forth, indicating "no." Ramirez then saw another person, whom he later identified as defendant. Defendant stood approximately four feet from the car.

Kulevich reached for the car door and began to open it. Ramirez grabbed the door and closed it. Defendant then pulled out a gun and said, "[Open] the door, mother fucker." Ramirez estimated that the gun was two feet from the car and was aimed at his head. Kulevich attempted to open the door again but Ramirez locked the door with his elbow. Defendant then said, "[Open] the door son of a bitch," and fired the gun at Ramirez. (It was these two foregoing comments that were not disclosed in discovery.) Ramirez estimated that the bullet hit four inches from the front door jamb and within 14 inches of his head. As he leaned back, a second shot was fired, shattering the window on the driver's door. Both shots landed in the dashboard of the car. Ramirez then heard the gun click, as if misfiring. The gun still was aimed at his head. Ramirez drove off, went to a nearby restaurant, and called the police. His only injuries were scratches and punctures on his hands and face from flying glass.

The police arrived, and Ramirez gave them a statement, including descriptions of both men. The police apprehended defendant and Kulevich. Ramirez identified Kulevich as the man who initially approached the car and identified defendant as the man who shot at him. Ramirez also identified the gun found in defendant's possession as being the same or similar to the one used by defendant. Police examination of the gun revealed a misspent or misfired bullet in the chamber.

Evidence technician Thomas Kelly photographed and processed the Ramirez vehicle. He testified for the State that the driver's window was completely blown out and that the interior front dashboard was damaged in the speaker area. He ...

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