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People v. Aleman

March 31, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
V.
HARRY ALEMAN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable Michael P. Toomin, Judge Presiding.

A jury found defendant Harry Aleman guilty of first-degree murder and he was subsequently sentenced to a term of 100 to 300 years' imprisonment. *fn1

Defendant appeals from his second trial; among errors he identifies are:

(1) errors occurring during voir dire deprived him of a fair trial; (2) the court erred in refusing to question individual jurors as to possible conversations with another juror; (3) the court erred in imposing certain security measures in the courtroom; (4) he was denied a fair trial by the admission of "other crimes" evidence regarding judicial bribery; (5) he was denied a fair trial by the State's alleged references to organized crime; (6) he was denied a fair trial in the admission of impeachment evidence indicating that he had committed a home invasion with an accomplice; (7) he was denied a fair trial where his attorney, in opening statement, referred to the testimony of a possible State witness who did not testify; (8) he was denied a fair trial where a witness testified that the judge in defendant's previous murder trial committed suicide; (9) alleged prosecutorial misconduct at argument denied him a fair trial; (10) the court erred in refusing to grant his defense counsel a two-week continuance; (11) the court abused its discretion in limiting his cross- examination of State witnesses; (12) the court abused its discretion in curtailing the testimony of a defense expert; (13) the court erred in finding that the previous judge's suicide was admissible as rebuttal evidence if defendant chose to seek admission of the previous judge's specific findings; (14) he was denied due process as a result of alleged error occurring at his suppression hearing; and (15) issues relating to re-indictment and re-prosecution (double jeopardy, speedy trial) must be reconsidered in light of "new evidence." Issues (1), (2), (4), (5) and (9) will be considered in this opinion; issues (3), (6) through (8), and (10) through (15) will be determined in a separate Supreme Court Rule 23 order disseminated contemporaneously.

In the case sub judice, the 23-volume record reflects that on retrial, the State presented evidence from several witnesses regarding Logan's murder. Logan lived with his sister, Betty Romo, and another sister. On September 27, 1972, Logan left for work at 11 p.m. Shortly after, Romo heard three loud noises or shots. Running outside, she discovered Logan, bleeding from two fatal shotgun wounds. Logan had been divorced from defendant's second cousin, Phyllis Napoles. They were engaged in a custody battle. Previously, he had been arrested for her assault and battery.

Bobby Lowe, Logan's neighbor, testified that on September 27, while walking his dog, he observed a vehicle parked across the street with its engine running and Logan walking to his parked automobile. As Lowe approached Logan to speak with him, the other vehicle pulled up. Lowe heard two loud noises and saw Logan fly backwards. Defendant exited the passenger side of the vehicle, approached Logan with a gun-like object in his hand, which he pointed at the fallen Logan. Lowe stared at defendant for four or five seconds, standing three or four feet away, then turned and ran. While running, he heard another loud noise and heard the vehicle drive away. In 1972, he picked out defendant's photograph and again, in 1976, he identified defendant as Logan's shooter for police. As a result of witnessing the shooting, Lowe was forced to quit his job and was relocated. He received money from the State during both trials. Lowe had incurred many debts, which he paid in part with money received from the State.

Louis Almeida, a career criminal who had grown up in the same neighborhood as defendant, testified for the State. In March of 1975, while driving through Ohio on their way to "kill somebody" for $10,000 in Pennsylvania, he and Joe Neri were stopped by Ohio police and arrested for possession of weapons and a silencer. Almeida provided police with information about his various criminal activities, including armed robberies, vehicle thefts, and bombings. Later, he reported details of Logan's murder identifying himself as the driver and defendant as the shooter. In exchange, Almeida was given immunity from prosecution for Logan's murder.

According to Almeida, in August of 1972, defendant discussed his plan to kill Logan and gave him two license plate numbers and Logan's home and work addresses, writing "Death to Billy" on the same piece of paper. Almeida then trailed Logan to learn his habits and schedule.

On the evening of September 27, 1972, defendant, armed with a shotgun and a .45 caliber handgun, was driven by Almeida to Logan's block, where he parked. Almeida observed a man walking a dog. At 11:15 p.m., he saw Logan. Almeida drove the automobile near Logan. Defendant called to Logan. Logan walked toward them. Defendant shot him twice with a 12-gauge shotgun. Logan "flew back" and began crawling and yelling for a doctor. Defendant stepped half-way out of the car, but "shut the door on the car and [said], let's go, he's gone."

The State then presented evidence regarding defendant's 1977 trial for Logan's murder, which resulted in acquittal. Robert Cooley, a former Chicago Police Officer and attorney during the late 1970's, testified that while he was a police officer, and also later when he practiced criminal law, he often bribed judges, clerks and sheriffs. While an attorney, Cooley visited the "Counselor's Row" restaurant, which members of Chicago's "First Ward" political organization frequented.

In February 1977, Cooley met with First Ward secretary Pat Marcy and ward committeeman John D'Arco, Sr. Marcy told Cooley of defendant's "murder case" and asked him if he knew of a judge who could "handle it," or fix the case. Cooley described Judge Wilson as a "very close" friend but a "drinker" who might need the money. *fn2 Cooley approached Wilson, who initially informed Cooley that he had been "SOJ'd" *fn3 and was unable to help. Cooley later told Wilson the case against defendant was weak, it could be handled very easily, and that Cooley would pay him $10,000 for an acquittal should the case be reassigned to Wilson. Wilson later agreed to "handle" the case if Tom Maloney, then defendant's attorney, withdrew his SOJ motion and withdrew from the case; he also asked that Cooley not represent defendant, to avoid any appearance of impropriety. Cooley then gave $2,500 to Wilson, the remaining $7,500 to be paid when the trial was over.

After paying Judge Wilson, Cooley met with defendant and another man, Marco D'Amico, assuring them both that the case had been fixed and that Wilson would acquit defendant. Cooley told them of Wilson's conditions. It was agreed that Frank Whalen, a former Chicago attorney living in Florida, would represent defendant, and Cooley met Whalen at the Bismark Hotel in April 1977. There, Cooley told Whalen that Wilson was going to "throw the case out," but wanted no contact with Whalen. Cooley would act as middleman; Whalen agreed.

Cooley again met with defendant, who told him that Maloney had "come up with an alibi" for the night of Logan's murder, that defendant had been hitting golf balls with three or four friends. Defendant also stated that "somebody" had "gotten to" police investigators and some of the police reports would not "make it" to court. Cooley and defendant met again. Butch Petrocelli was present. Defendant informed Cooley that a female witness to the Logan murder had accepted $10,000 to testify that defendant had not done the shooting. Cooley later informed Judge Wilson about this witness, who thought that was a good idea. Cooley did not, however, inform Wilson of the $10,000 witness payment. Cooley then met Whalen in Florida a week before the trial and again assured him that Wilson would throw the case out.

On the second day of the 1977 trial, Cooley met Judge Wilson, who was very upset because the case was not as weak as represented and Whalen was not doing a good job. Cooley warned Wilson to follow through with the deal. The next day, Cooley told Marcy of this development; Marcy responded that Wilson had better do as agreed.

Cooley again met with Judge Wilson. Wilson had discovered that the female witness was receiving $10,000 for testifying falsely. He complained of receiving $10,000 although he was a "full circuit judge," and requested more bribe money. Cooley told Wilson he would see what he could do, but to fulfil his part of the deal or both would be in a great deal of trouble. Cooley then met with Marcy again, addressing Wilson's demand; Marcy refused additional payment.

On May 24, 1977, Judge Wilson acquitted defendant of Logan's murder. Marcy then gave Cooley two envelopes; one contained $7,500 for Wilson and the other held $3,000 for Cooley. That evening, Cooley met Wilson at a restaurant. In the men's room, Cooley gave Wilson the remaining $7,500 of the bribe. Wilson said he was a "broken man" and that Cooley had "destroyed" and "killed" him.

A few weeks later, defendant, while with Petrocelli, thanked Cooley, telling him that he had done a great job, and asked Cooley for a few of his business cards so that he could send him more clients.

On cross-examination, Cooley testified, among other things, that since 1986 he had been paid $3,400 per month by the government. He admitted having a heavy gambling habit and cheating on his taxes. The State rested.

Defendant presented the testimony of several witnesses, including William Dietrich, Billy Logan's nephew, and Stanley Ryba, Logan's neighbor, to challenge Lowe's account of the shooting. Dietrich, who was living with Logan on September 27, 1972, recalled being asleep on the front porch at 11 p.m. He awoke to hear someone say, "hey, Bill, come here." Immediately hearing two gunshots, he looked outside and saw Logan on his knees, falling backwards. He noticed a large vehicle, but no one else on the street at that time. Ryba, a neighbor of Logan's, testified that he was watching television in his home six houses away. At 11 p.m., he heard a gunshot, looked out his window and saw a car double-parked on the street and a man "down" nearby. No one else was in the area. Guido Calcagno, Almeida's life-long friend, testified for defendant that he had known Almeida since they were both children. Almeida was "not very truthful" with a "tendency to lie about everything." Several police officers who had investigated Logan's murder testified that Lowe initially was "reticent" and fearful who, at first, only identified the occupants of the automobile as two white males.

Logan's son, William Jr., and Phyllis Napoles, defendant's second cousin and Logan's ex-wife, also testified for defendant. They suggested that Petrocelli, not defendant, shot Logan. Napoles described Logan as an abusive drunk and characterized her relationship with Logan as "tumultuous." After her divorce from Logan in 1967, she had a relationship with Petrocelli, a "very violent" man with a "dark side." In March 1972, Logan, in a drunken state, kicked the door of her home and threatened her. Petrocelli, who was present, began arguing with Logan and a violent physical confrontation ensued, during which Petrocelli threatened to kill Logan. Logan's son, William Jr., present during this fight, testified that he heard Petrocelli tell Logan that "he'll take him out."

The defense also presented the testimony of Ed Whalen, Jr., Frank Whalen's nephew, in questioning Cooley's account of Judge Wilson's bribe. Whalen, Jr. often helped his uncle with cases, including defendant's 1977 murder trial. His uncle, who had partially retired to Florida, stayed in a condominium in the Hancock Building, not the Bismark Hotel, whenever he came to Chicago. Whalen, Jr. never came into contact with Cooley during the 1977 trial. The trial was legitimate and not fixed. Neither Frank Whalen nor defendant ever indicated to Whalen, Jr. that the case had been predetermined.

The jury found defendant guilty and he was sentenced to a prison term of not less than 100 and not more than 300 years.

I.

Defendant initially raises several issues concerning the selection of the jury, claiming he ...


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