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04/19/94 PEOPLE STATE ILLINOIS v. GIOVANNI ALDUINO

April 19, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GIOVANNI ALDUINO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 89-CF-2264. Honorable Edward W. Kowal, Judge, Presiding.

Released for Publication May 27, 1994.

Quetsch, Bowman, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Defendant, Giovanni Alduino, was convicted of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12-4(b)(1) (now codified, as amended, at 720 ILCS 5/12-4(b)(1) (West 1992))) and sentenced to 90 days in the county jail and 24 months' probation. He appeals, contending that he was deprived of a fair trial because the State improperly withheld exculpatory evidence in violation of Supreme Court Rule 412(c) (134 Ill. 2d R. 412(c)), and the State failed to prove him guilty beyond a reasonable doubt. We affirm the trial court's judgment.

At trial, Antonella Pulice testified that on November 20, 1989, the Wood Dale police asked her to come to the police department and translate for them. Pulice agreed to do so, and at the police station she read Miranda rights to defendant in Italian. After defendant indicated that he understood the rights, the police directed her to ask defendant specific questions in Italian. In response to her questions, defendant stated that, "it started in the . . . with the cars, they were driving along, whatever, and then a few words were exchanged." Defendant also stated that he went to a restaurant with a bat.

Luciano Migliaccio, the victim, testified that on November 20, 1989, he was working at a restaurant called Giorgio's Restaurant in Wood Dale. His employer sent him across the street to buy produce for the restaurant. After Migliaccio parked his car, someone blocked him by parking his car behind Migliaccio's car. An argument ensued between Migliaccio and the man driving the other car. Migliaccio then returned to work, which was just a few minutes away. Migliacciowas working in the kitchen when his manager called him and told him that two men wanted to talk to him. Migliaccio saw the man he had argued with and he saw defendant. Defendant had a jacket over a baseball bat, and he took out the baseball bat and hit Migliaccio on the head several times. Migliaccio lost consciousness. Migliaccio required 10 stitches to close the wound on his head, and he suffered pain for about one week. At the time he was struck, he was looking at the defendant face-to-face. The bat was less than two feet long and made of metal.

Curt Shires, an emergency medical technician, received a dispatch message of a fight in progress at Giorgio's. As he entered the parking lot of the restaurant, he saw two individuals hastily getting into a vehicle and he saw the vehicle pull out very quickly, going eastbound. Shires entered the building. He saw Luciano Migliaccio sitting in a chair. There was blood on the floor and on Migliaccio's head.

Anthony Latronica was in the lobby of Giorgio's restaurant on November 20, 1989, talking with John and Jerry DiNunzio. John was the owner of the restaurant and Jerry was the head chef. Two men entered the building and asked who owned a certain car in the parking lot. The two men were small in stature and one, identified by Latronica as defendant, had a coat. One of the DiNunzios went into the kitchen and brought out Luciano Migliaccio, who was dressed in a chef's coat. As the men approached each other the conversation became more heated, and defendant took the bat from under his coat and hit Migliaccio on the head several times. Latronica went to call the police while the DiNunzios restrained the men. Latronica came back, picked up the bat, and placed it in the foyer. Latronica stated that the bat was aluminum and appeared to be less than full-size. According to Latronica, defendant fled, but the DiNunzios detained the other person and turned him over to the police.

Later that day, the police brought defendant to the parking lot and asked Latronica if he was the man who hit Migliaccio. Latronica identified defendant as the man. Latronica stated that defendant and the man with him looked somewhat alike and were approximately the same size, although defendant was taller. Despite the fact that Latronica stated that he would have a hard time naming a distinguishing feature between defendant and his companion, he did state that he thought defendant was slightly bigger than his companion. He added, "But I remember who had the bat; that I do remember." He then identified defendant as that man. He also stated that defendant talked more and defendant's companion seemed more timid. Latronica stated that he immediately recognized defendant incourt as being the man that had the bat and that he (Latronica) had identified on November 20, 1989.

Officer Dean Costopoulos received a dispatch that another officer was following a suspect. Costopoulos effected a traffic stop and asked defendant to exit his vehicle and place his hands on his trunk. Officer Costopoulos noted that there were fresh bloodstains on the trunk and blood on defendant's hands. He placed defendant under arrest and brought him back to Giorgio's.

Defendant called Joseph Palazzolo, defendant's brother-in-law, who testified that a few days after the incident police arrested him and took him to the police station. They showed Palazzolo a photographic array of 10 pictures and told him Migliaccio had identified him as a participant in the fight. Palazzolo's picture was in the array, but Palazzolo did not recognize anyone else pictured in the array, including defendant or defendant's brother. Palazzolo was placed in front of a window and told that someone was being asked to identify him. A police officer later told him that he had not been identified and he was free to go.

The other evidence of identification procedures came through the testimony of Migliaccio who stated that he was shown about 20 pictures, but did not identify anyone. He was also asked to view a lineup at the police station a week or two after the incident, but again he did not identify anyone. Defense counsel stated that he had not received any notice that a photographic or physical lineup had been held. The assistant State's Attorney stated that he had no knowledge of either event, but he would check further. Defendant urged that the trial court find a discovery violation as a result of the State's failure to inform defendant of the photographic array and the lineup.

The court conducted a hearing into the alleged discovery violation. The State brought in several witnesses to testify. They included Officer Dean Costopoulos, who testified that to the best of his knowledge no one in his department of the Wood Dale police ever showed a photographic lineup to Migliaccio. Other than the showup at ...


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