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People v. Modrowski

May 19, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PAUL MODROWSKI, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cousins delivered the opinion of the court:

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 93-CR-12080

THE HONORABLE SAM AMIRANTE, JUDGE PRESIDING.

Defendant, Paul Modrowski, and co-defendant, Robert Faraci, were charged with first-degree murder for the shooting death of Dean Fawcett. Following simultaneous dual jury trials, co-defendant was acquitted while defendant was convicted. On appeal, defendant argues that reversible error occurred where: (1) the trial court refused to give curative jury instructions following the prosecution's misstatement of accountability law; (2) the State introduced improper prior inconsistent statements as substantive evidence and for impeachment purposes; (3) the trial Judge abused his discretion in refusing the jury's request for transcripts of a key witness' testimony; (4) defendant received ineffective assistance when counsel failed to request that the jury be given counsel's copy of a key witness' testimony and failed to offer a written prior inconsistent statement as substantive evidence; (5) prosecutorial misconduct deprived defendant of a fair trial; and (6) the sentence imposed, life imprisonment, was unfairly disparate and excessive.

BACKGROUND

On January 18, 1993, a woman and her daughter were walking along railroad tracks near their home in Barrington, Illinois, when they discovered a human body in the snow near the tracks. The woman immediately called law enforcement authorities to the scene, where Barrington Police and Illinois State Police found the body in a frozen state with its head, left arm, and right hand missing. No identification was found on the body, but the police found two phone numbers on a note in clothing on the body. The phone numbers led the police to Nadine Lenarczak (Lenarczak), who provided information that led police to determine that the body was that of 22-year-old Dean Fawcett (Fawcett). A missing persons report, DNA testing, and records showing that Fawcett purchased the shoes and eyeglasses found near the body confirmed that the victim was Fawcett.

The evidence in the instant case established that, on December 1, 1992, Fawcett had opened a checking account with a $100 deposit at a bank in Berwyn, Illinois. From December 22 through December 27, 1992, Fawcett wrote over 40 bad checks against that account. During that period, he was frequently accompanied by his friends, Briente Palazaeno (known as Brian Palasz), Mr. and Mrs. Robert and Rose Faraci, Paul Modrowski (Modrowski), and Lenarczak. Each person in this group enjoyed benefits from the proceeds of Fawcett's check-writing spree.

At trial, Lenarczak testified that, on December 27, 1992, after purchasing goods with bad checks along with Robert Faraci (Faraci), Modrowski, Fawcett, and Palasz, the group returned to Lenarczak's motel room and ordered food. Faraci and Fawcett left to pick up the food, while Palasz and Modrowski remained at the motel room, speaking in low voices away from Lenarczak. After Faraci and Fawcett returned with the food, Lenarczak spoke with Fawcett privately. She warned him that he would likely get caught for writing the bad checks. Fawcett replied that he intended to move to California and that, if he was apprehended by authorities, he would tell the police everything about the check- writing scheme. Faraci then interrupted the conversation between Lenarczak and Fawcett and took Fawcett aside. Lenarczak subsequently warned Faraci that he should arrange for Fawcett to go to California to help ensure that Fawcett would not implicate everyone else in the check- writing scheme.

Lenarczak also testified that, the following morning, Fawcett telephoned her from a hotel where he had been staying and complained that his wallet, identification, and checks were missing. Fawcett stated to her that Faraci and Modrowski were supposed to pick him up from his hotel and that he suspected the two men of stealing the aforementioned items. Lenarczak then went to pick up Fawcett and drove him back to her motel, where he tried to telephone Faraci. When Fawcett and Lenarczak prepared to leave the motel soon thereafter, Faraci and Modrowski arrived in Faraci's car. According to Lenarczak, Modrowski jumped out of the car, opened the passenger door of Lenarczak's car, and told Fawcett to get out. Modrowski and Fawcett argued for a short time about the missing wallet and checks, and then Modrowski pushed Fawcett into the back seat of Faraci's car as Fawcett demanded to be taken home. Lenarczak stated that that was the last time she saw Fawcett.

Palasz also testified at trial, stating that he, Modrowski, Faraci, and Fawcett were friends. Palasz' testimony largely corroborated that of Lenarczak, with some exceptions. He denied, for instance, that Lenarczak told him that Fawcett might inform the police of the group's illegal activities. He also denied that there was any Discussion about killing Fawcett on December 27, 1992. Palasz did admit, however, that on December 23, he was present during a conversation with Faraci and Modrowski in which the killing of Fawcett was proposed. Palasz testified at trial that, while he could not recall certain details, Modrowski did not state during that conversation that he wanted Fawcett killed. The State then confronted Palasz with his prior testimony given before a grand jury in which he gave a detailed account of statements made by Modrowski that evinced his intent to kill Fawcett. Palasz acknowledged his grand jury testimony, but argued that the incriminating statements of the conversation were made by Faraci and that Modrowski was merely relating Faraci's statements to Palasz at a point in the conversation when Faraci left Palasz and Modrowski alone. However, Palasz did admit that, upon Faraci's return to the conversation, there was a mention of killing Fawcett. Once again, Palasz was confronted with additional prior grand jury testimony in which he described that Modrowski desired to kill Fawcett.

Rose Faraci (Mrs. Faraci) testified that she married Robert Faraci in April 1992. She stated that Palasz lived with the couple until she ejected him. Sometime later, Modrowski moved in to live with the Faracis. Mrs. Faraci stated that she never knew Modrowski by his true name, but only by the name Viktor Himmler. Mrs. Faraci acknowledged being a party to the fraudulent check-writing scheme and admitted that she knew that Fawcett was already dead when she forged one of his checks on January 6, 1993. Soon thereafter, the Faracis moved to Florida, followed immediately by defendant. Mrs. Faraci testified that she and Modrowski rented an apartment there as husband and wife under the names Rosalie Rugo and Viktor Himmler. All three lived in the apartment, but Robert Faraci did not sign the lease. Mrs. Faraci testified that the three stayed in Florida for approximately three months and that the Faracis subsequently returned to Chicago after Modrowski had returned.

Deputy Chief Investigator John Robertson was one of over 40 witnesses who testified in the case. Robertson testified that defendant admitted in a statement while in police custody that he offered Faraci the use of his car to effectuate the killing of Fawcett and that, before and after the shooting, he had concealed the 9-millimeter gun that Faraci used to kill Fawcett. At the close of the proceedings, the jury found Modrowski guilty of first-degree murder under a theory of accountability. The trial court found that defendant was eligible for the death penalty, but sentenced him to life imprisonment without the possibility of parole due to the trial Judge's belief that Modrowski may not have been present during Fawcett's murder. Defendant brings the present appeal from that judgment.

We affirm.

ANALYSIS

Defendant first contends that the trial court erred by refusing to declare a mistrial or give a curative instruction after the prosecution misstated the law of accountability to the jury during rebuttal argument. We note that defendant failed to make a timely objection following the remarks in question and waited until rebuttal argument was complete and the jury was instructed on the law and excused to deliberate before making its motion for a mistrial. Consequently, defendant waived this issue on appeal, and this court, therefore, may only review the issue under the standard of plain error. People v. Hayes, 139 Ill. 2d 89, 143 (1990). The plain error rule is not a blanket savings provision, however, and is invoked only in exceptional cases where the evidence is closely balanced or where the alleged error was so prejudicial that it denied the defendant a fair trial. Hayes, 139 Ill. 2d at 143.

One is accountable for the conduct of another when "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." 720 ILCS 5/5-2(c) (West 1992). Although accountability requires that the assistance of an accused occur prior to or during the commission of the unlawful act, such assistance may be inferred from activities occurring after the offense. People v. Ruiz, 94 Ill. 2d 245, 257 (1982); People v. Foster, 198 Ill. App. 3d 986, 993, 556 N.E.2d 1214, 1219 (1990). For instance, the subsequent concealment or destruction of evidence is a factor that may be considered by the fact finder in determining whether the accused aided in the commission of the offense. People v. Johnson, 220 Ill. App. 3d 550, 555, 581 N.E.2d 118, 122 (1991).

In the case sub judice, the prosecutor summarized the evidence supporting a guilty verdict under the theory of accountability. This evidence essentially consisted of defendant's Discussions of killing Fawcett, defendant's offering Faraci the use of a gun and his car to facilitate the murder, and defendant's subsequent concealment of the gun. The prosecution followed this summation with a verbatim recitation of Illinois Pattern Jury Instructions, Criminal, No. 5.03 (3d ed. 1992) regarding accountability.

Defense counsel's subsequent closing argument at one point focused upon the language of the accountability statute requiring that defendant's assistance must have been "before or during" the commission of the offense. Defense counsel then argued that defendant's concealment of the gun occurred after the offense and implied that defendant, therefore, should not be found guilty under the charge of accountability, since his involvement at most implicated him as an accessory after the fact.

In rebuttal closing argument, the prosecution responded as follows: "Now, counsel says, 'Well, wait a second. Accountability happens if its [sic] before or during the commission of the crime. Hiding the gun after Dean is killed is after.' Wrong. Folks, the crime is still happening until they get caught. Hiding the gun in Florida and taking it with them wherever he went is part and partial [sic] of the commission of the crime. It's still happening. *** So the concealment of evidence of the murder weapon is part of the commission of the offense."

Defendant claims that the State's remarks prejudiced defendant by leading jurors to believe that one could be found guilty under the theory of accountability under facts showing that defendant was only an accessory after the fact. Defendant argues that the prejudice was compounded by the fact that the prosecution's misstatement occurred during rebuttal closing argument without a subsequent curative instruction by the trial court or an opportunity for the defense to respond to the jury. Initially, we agree with defendant that the above rebuttal remarks concerning accountability and the completion of the crime ...


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