Appeal from the Circuit Court of Cook County. No. 02 CR 5763. Honorable Frank Zelezinski, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Following a jury trial, defendant Timothy Gallano was convicted of first-degree murder and concealment of a homicidal death and sentenced to concurrent prison terms of 60 years and 5 years, respectively. He contends on appeal that (1) he was denied his right to a unanimous jury verdict when the trial court dismissed a juror during deliberations after the juror had expressed to the court his reasonable doubt as to defendant's guilt; (2) the trial court erred in allowing a witness to invoke his fifth amendment right against self-incrimination without conducting a hearing to determine whether he had a valid basis for invoking that right; and (3) his 60-year sentence for first-degree murder was excessive. For the following reasons, we reverse defendant's convictions and remand for a new trial.
The following facts were adduced at defendant's trial. Arlene Bravo testified that on September 20, 1999, her daughter, Stacy Bravo, left their home at 9:30 p.m. to work at a local bar, and that was the last time Arlene saw Stacy alive. Stacy's brother, John Bravo II, testified that he was introduced to defendant in early September 1999 as Stacy's boyfriend. On September 25, 1999, John became alarmed when Stacy did not appear at her cousin's wedding. The following Tuesday, John saw defendant in the parking lot of a local bar in Blue Island getting out of Stacy's car. When John asked defendant about Stacy's whereabouts, defendant told John that he had seen Stacy the Friday before the wedding, that she had gone to a party with a girlfriend and never came back, and Stacy lent him the car to run errands before she went to the party with her girlfriend.
The next day, John went with his father to Jack Moretti's house, where defendant was living at the time, to pick up Stacy's car. John asked defendant again if he had heard anything from Stacy and defendant replied that he had not heard anything, and had not seen her since the Thursday before the wedding. John confronted defendant with the discrepancy because defendant had previously told John that the last time he saw Stacy was the Friday before the wedding. Defendant responded that he could not remember if it was Thursday or Friday, and could not remember the girlfriend's name that she went out with that night. John further testified on cross-examination that he was aware of Stacy's drug problem, and that he knew she had received treatment through a drug rehabilitation program. He denied that she ever acted aggressively or violently when he observed her using drugs.
Hope Bravo, Stacy's former sister-in-law, testified that the Wednesday before the wedding, on September 22, 1999, she was working at a local bar in Blue Island. At about midnight, she saw someone driving by the bar in Stacy's car. Hope thought it was unusual because Stacy should have been working at that hour. Shortly thereafter, defendant came into the bar, flailing his arms around, asking "where is Stacy," in an animated voice. Hope thought it was odd that defendant did not know where Stacy was because he and Stacy were inseparable. When Hope said to defendant, "what did you do to her," he was extremely nervous and sweating. Defendant looked her in the eye and began to cry. He kept repeating, "I am sorry. I am so sorry." Defendant kissed Hope on the forehead and immediately left the bar, got into Stacy's car, and drove off. On cross-examination, Hope testified that she did not contact police after defendant left the bar. She also testified that she was familiar with Jack Moretti. He was known around town because of his appearance which she likened to Jerry Garcia. On occasion, she saw Moretti and defendant at the bar where Stacy worked. Hope saw Moretti driving Stacy's car the week after defendant spoke to Hope.
Arlene Bonta testified that she lived on a farm in Mokena, Illinois. She had known defendant for about 25 years, and he had lived with her from 1993 to 1994. In the fall of 1999, Bonta received a telephone call from defendant, asking her if he could store a motorcycle frame and some parts in her barn. Two weeks after the phone call, defendant arrived at Bonta's farm with a motorcycle frame and a blue barrel. The barrel was too heavy for defendant to carry and Bonta's son helped defendant move the barrel into the barn. After the barrel was unloaded from defendant's trailer, Bonta's dog was sniffing the barrel. Bonta's son also testified that the barrel had an odor. Defendant told them that the dog was probably sniffing the barrel because a dead possum was thrown in there by his girlfriend who was not happy with him. Bonta further testified that defendant returned to her farm in the summer of 2000 with Moretti, whom she described as "scary looking." At that time, they picked up the motorcycle frame, but left the barrel behind.
Sergeant Tom Wetherald of the Illinois State Police testified that on January 31, 2002, he was assigned to assist with the missing persons case of Stacy Bravo. He accompanied Moretti, who was in custody at that time for passing bad checks, to Moretti's residence in Blue Island. When Wetherald entered the basement, he saw what he believed to be dried blood on the walls and the floor boards. The material on the floor boards was later determined to be human blood. On February 4, 2002, Wetherald and other officers took defendant into custody, and accompanied him to the Bonta farm where Wetherald observed a blue plastic 55 gallon drum. The drum was then taken to the coroner's office.
Illinois State Police biologist, Dan Gandor, testified that he took DNA samples from the floor boards in the basement of Moretti's residence, as well as swabs from Arlene and John Bravo. The parties stipulated that the blood on the floorboards belonged to the biological daughter of Arlene and John to a degree of 99.99% certainty.
Doug Hoglund, Deputy Chief of the Blue Island Police Department, testified that he had information that Moretti and defendant were involved in Stacy's disappearance, and that Moretti's arrest for possession of stolen checks lead police to defendant. Moretti consented to a search of his home where the police recovered explosives, drug paraphanalia, marijuana, shotguns, ammunition, mercury, and a passport. Defendant did not reside there at the time these items were discovered. Hoglund further testified that he interviewed defendant following his arrest. After advising defendant of his rights, defendant agreed to speak with him. Defendant was informed that the police were investigating Stacy's disappearance. According to Hogland, defendant initially told him that he and Stacy were no longer dating and that he did not know of her whereabouts. When Hoglund told defendant that police had information that defendant did know what happened to Stacy, defendant "hung his head" and began to cry.
Defendant then told Hoglund that he was living with Stacy in September 1999. When she arrived home from work one morning, they had an argument and Stacy pointed a gun at him. He took the gun away from her and shot her in the head more than once. After he shot Stacy, Moretti came out of a bedroom where he had been sleeping. He and Moretti put Stacy's body into a large plastic bag and left it in the trunk of Stacy's car for a few days. They then put the body into a blue 55 gallon plastic drum, filled it with cement and put motorcycle parts on top of it. A few days later, defendant took the barrel to the Bonta's farm. Defendant then accompanied the officers to the Bonta farm where the barrel was discovered.
Assistant State's Attorney Terry Reilly testified that on February 5, 2002, he interviewed defendant in the presence of Officer Hoglund. Defendant gave a videotaped statement after being advised of and waiving his rights. ASA Reilly testified that there was a difference in the oral statement that defendant gave to Hoglund and the videotaped statement he later made. Reilly stated that in the oral statement to Hoglund, defendant said that he took the gun away from Stacy and shot her several times. When he spoke with Reilly in the videotaped statement, Defendant said that Stacy had the gun, there was a struggle for it, and the gun went off. Reilly also testified that defendant told him that he did not mean for the incident to happen.
Forensic Pathologist Bryan Mitchell testified that on February 5, 2002, he conducted an autopsy of Stacy Bravo's body. Stacy died as a result of multiple gunshot wounds to the head, causing laceration of the brain and fracturing of the skull. His examination revealed a gunshot entrance wound on "the right side of the head just above and behind the right ear." The path of the bullet was from back to front. There were no exit wounds. He observed a keyhole shaped wound suggesting that there had been more than one bullet that entered the area. Mitchell removed what appeared to be five pieces of bullet jacketing and two pieces of lead from the skull. He explained that when multiple bullets are fired into the same area, the bullets will collide into each other causing the bullets to fragment inside the skull. According to Mitchell, the gun was fired right up against her head. He had no opinion as to whether the wounds were as a result of a struggle or an execution. With the exception of the skull, he found no evidence of injury to any other part of her body.
Wetherland testified for the defense regarding a report that he generated during the investigation. Therein, he stated that `"[defendant's] initial statements indicated that Bravo was shot during a struggle with [defendant]."' The parties also stipulated that Stacy received out-patient drug treatment and counseling between April 1997 and October 1997, and that during that time, she attended 30 counseling sessions.
Defendant testified that he met Stacy and Moretti through mutual friends. While defendant lived in Bourbonnais, he would often stay with Moretti at his apartment. According to defendant, he "looked up" to Moretti, but soon realized he was a drug dealer who was "not on the level." Defendant did not do drugs because he had a commercial driver's license and was required to participate in drug screening. Defendant had known Stacy for six months before the shooting. She would often stay overnight at Moretti's place. They very seldom had disputes, and when they did, they talked very easily and openly about them. Defendant stated that he found out that Stacy was taking drugs. They discussed the problem, and she agreed that she would not do them anymore. According to defendant, Moretti made Stacy sell cocaine at her workplace and Stacy was not happy with that arrangement. Defendant testified that he confronted Moretti about the situation, and Moretti told him it was none of his business. According to defendant, Moretti was always asking Stacy about money, and at the time of her death, she owed Moretti $4,000.
Defendant further testified that on September 20, 1999, he was at Stacy's parents' house earlier in the day. Stacy went to her pool league and a friend of his picked him up. At about 10 p.m., he was sitting in the basement watching television. Moretti was in the next room asleep. Stacy came home with another woman and went into Moretti's room. They had a conversation, but he could not hear what they were discussing. Then Stacy came out and had a conversation with the woman. The two women were smoking marijuana. At some point, the other woman left. Stacy was upset and was acting out of character. He had only seen her behave that way once before when she and Moretti got into a verbal confrontation and she threw some bottles around the bar.
According to defendant, Stacy then walked up to him with a notebook in one hand and a gun in the other hand. She pointed the gun at defendant about two feet away from him. Defendant reached up and grabbed the hand holding the gun. He pushed Stacy back into some chairs in front of a workbench. "It seemed like when she hit the chairs, the gun went off." He did not know how many times it went off. His hand was never on the trigger. After the gun discharged, Moretti came in and told defendant they had to get rid of the body because Moretti had drugs in the house and did not want the police there. Defendant did not want to have anything to do with hiding the body. He reluctantly agreed to help Moretti put Stacy's body into a plastic bag and they placed her in the trunk of her car. According to defendant, Moretti cleaned the blood off the basement floor and was upset because defendant did not help him.
Defendant drove to see his friend who was a training officer for the Mokena police department. He was not at home. Defendant attempted to contact him four or five times over a period of time to no avail. The body remained in the trunk of the car for a few days. He and Moretti then placed the body into a 55 gallon plastic drum belonging to Moretti. They filled it with cement and motorcycle parts and left on the side of the house for a few days. It was defendant's idea to bring the drum to the Bonta farm. Defendant further testified that he did not intend to shoot Stacy and did not have the gun in his hand until after she had been shot. He believed the gun was the same one that he had seen Moretti with in the past for protection.
Following deliberations, the jury found defendant guilty of first-degree murder and concealment of a homicidal death. He was subsequently sentenced to a concurrent prison term of 60 years and 5 years, respectively. His motions for a new trial and for resentencing were denied.
A. Discharge of Juror Litke
Defendant contends that he was denied his right to a fair trial when the trial court dismissed a juror during deliberations who had expressed reasonable doubt. The following facts are relevant to a disposition of this issue. Prior to trial, the court conducted voir dire by questioning potential jurors, and by giving the State and defense an opportunity to submit questions and exercise challenges. Each juror was asked, "were you ever arrested, charged with, or convicted of a crime other than a minor traffic offense?"
During the process, the State made challenges for cause as to potential jurors who were untruthful with respect to their criminal backgrounds. The trial court granted the State's motion to dismiss two potential jurors for cause. Thereafter, the State also made a motion to dismiss prospective juror Todd Atkins because, although he admitted that he had an arrest for mob action in 1986, in March of 1996, he was also charged with battery, and in January 1997, he was charged with delivery of cannabis. The trial court denied the motion for cause stating, "[h]e did indicate sufficiently he has been in fact arrested. The fact that he has many, many more is, well, just icing on the cake." He was then dismissed by the State on a peremptory challenge.
After 12 jurors were empaneled, the court sought three alternate jurors. The prospective alternates were asked, "were any of you or anyone close to you ever a victim of a crime before?" Prospective alternate Frank Litke was questioned individually by the court as follows:
"A: [Mr. Litke] My son's mother was murdered. My two sons. Twelve years ago.
Q: Was anyone arrested as a result of that?
Q: Were you in any part of the court proceedings in any way, sir, such as a witness?
Q: Now the fact that someone who was related closely was the victim of a homicide in the past, would that have any bearing or impact upon you whether or not you could be a fair and impartial juror in this case, sir?
Q: If you were selected as a juror in this case, Mr. Litke, could you rule only according to the evidence you hear, the law that I would give you, be able to give both sides here a fair trial?
The court next asked the panel: "were any of you or anyone close to you ever arrested for, charged with, or convicted of a crime other than a minor traffic offense?" Mr. Litke ...