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12/06/89 the People of the State of v. Ezio

December 6, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

VITO SPIEZIO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

548 N.E.2d 561, 191 Ill. App. 3d 1067, 139 Ill. Dec. 176 1989.IL.1887

Appeal from the Circuit Court of Cook County; the Hon. Kenneth Gillis, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Following a jury trial, defendant, Vito Spiezio, was convicted of attempted murder and aggravated assault. Defendant was sentenced to concurrent terms of 12 years for attempted murder and 364 days for aggravated assault. On appeal, defendant argues that (1) his convictions for attempted murder and aggravated assault are legally inconsistent; (2) he was not proven guilty of attempted murder beyond a reasonable doubt; (3) the trial court erred in submitting Illinois Pattern Jury Instructions, Criminal, No. 6.06 (2d ed. 1981) (hereinafter IPI Criminal 2d) on the issue of the impossibility of committing the offense of attempted murder to the jury; (4) he was denied his right to a fair trial when the assistant State's Attorney told the jury that the State's police officer and State's Attorney witnesses were more credible due to their sworn oaths to State office; (5) the trial court erred in submitting the Prim instruction to the jury; and (6) the trial court erred in sentencing defendant based on a biased presentence report. We affirm.

Defendant was initially charged with armed robbery and home invasion. The attempted murder and aggravated assault charges arose out of defendant's arrest on the initial charges. Defendant was tried on all of the charges, and the jury found him not guilty of armed robbery and home invasion and guilty of attempted murder and aggravated assault. Since this appeal concerns only defendant's convictions for attempted murder and aggravated assault, we will only discuss the relevant portions of trial testimony.

On July 23, 1984, at approximately 1:45 a.m., off-duty Chicago police officers Thomas Coughlin, Alfred Thome, Thomas Pack and Gerald Murray went to the Captain's Quarters bar located at 3900 South Western Avenue. All four officers were assigned to the investigation of an armed robbery and home invasion which occurred two days earlier. The officers were aware of the victim's description of the offender and that there was an outstanding warrant for defendant's arrest for the offense.

At approximately 2 a.m., defendant and his girl friend entered the bar. Officer Coughlin observed defendant's girl friend look in his direction, speak to defendant and then walk with defendant towards the door. Officer Coughlin alerted his fellow officers, and they followed defendant out of the bar. Coughlin yelled to defendant and identified himself as a police officer. Defendant pulled a gun from his waistband, pointed it at Coughlin's head and stated, "uck you coppers." Coughlin testified that he was four to five feet away from defendant when he made the statement. Officer Thome was following directly behind Coughlin. Coughlin jumped on defendant, and they fell to the street and began to roll around and struggle for possession of the gun. Coughlin testified that defendant rolled on top of him, pointed the gun at him again and Officer Thome joined the struggle for the gun. Coughlin and Thome banged defendant's hand on the ground until he let go of the gun. Officer Pack retrieved the weapon, while defendant and Coughlin continued to struggle. Officer Pack retrieved the weapon, while defendant and Coughlin continued to struggle. Officer Pack retrieved handcuffs from his car, and the three officers handcuffed defendant. Officer Coughlin examined the gun and determined that it was in working order. The gun contained seven rounds of bullets in the clip and one in the chamber. Coughlin also testified that the gun's safety device was turned on. Coughlin's testimony was corroborated by Officers Thome and Pack. Officer Thome also testified that defendant pointed the gun at him as he struggled to help Coughlin remove the gun from his possession.

Defendant testified on his own behalf and denied that he had a gun in his possession, or that he pulled a gun on the police and yelled "uck you coppers." Defendant further testified that as he held his girl friend's hand and opened the door to the bar with his other hand, someone called him from inside the bar. He stated that as he turned around, he was jerked from behind and hit in the face. Defendant testified that when he regained consciousness, he was lying facedown in the middle of 39th Street surrounded by police officers.

Assistant State's Attorney DeOca testified for the State in rebuttal and stated that following the incident, she gave defendant his Miranda warnings and questioned him about the events of that morning. She further testified that defendant told her that he tossed away his gun while lying on the ground outside of the bar.

During the jury instruction conference, the assistant State's Attorney submitted IPI Criminal 2d No. 6.06 on misapprehension of the circumstances. The court gave the instruction over defendant's objection. After a lunch break, the jury retired to deliberate. At 7:39 p.m. that evening, the jurors sent the Judge a note which stated that they were unable to reach a unanimous decision. Defendant made a motion for a mistrial. The court denied the motion and gave the jury the Prim deadlock instruction. Also, during deliberations several jurors sent out notes asking how long they should stay and requesting that messages be sent to their families and friends. The court, with the consent of defense counsel and the assistant State's Attorney, responded that the jurors should stay as long as they needed. After the jury returned its verdict, defendant made a motion for a mistrial on the basis that the court's failure to respond to the jurors' individual requests for calls to their families coerced the verdict. The court denied defendant's motion.

At the sentencing hearing, the court considered the presentence investigation report prepared by probation Officer Shapiro. Defense counsel made a motion to strike the entire social summary portion of the report. The court struck and allowed amendment of portions of the report, but denied defendant's motion to strike the entire social summary. The court sentenced defendant to concurrent terms of 12 years for the attempted murder of Officer Coughlin and 364 days for the aggravated assault of Officer Thome. This appeal followed.

Defendant first argues that his convictions for the attempted murder of Officer Coughlin and the aggravated assault of Officer Thome are legally inconsistent. It is his position that his conviction for attempted murder should be ...


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