Appeal from the Circuit Court of Cook County No. 08 CR 11919 Honorable Vincent Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice Karnezis
JUSTICE KARNEZIS delivered the judgment of the court, with opinion. Justices Hall and Rochford concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Michael Cosmano was convicted of the 1981 murder of Milton Rodriguez. On appeal, defendant argues: (1) the State made numerous improper comments during closing argument, the cumulative effect of which warrants a new trial; (2) the State elicited improper evidence regarding a gun defendant possessed at the time of his arrest; (3) the State used false testimony and violated discovery rules; and (4) the trial court erred when it denied defendant's request to dismiss a juror. For the following reasons, we affirm the judgment of the trial court.
¶ 3 On June 12, 1981, Milton Rodriguez, a delivery driver for Bella's Pizza, was shot in the alley behind Bella's Pizza. The murder went unsolved. The case was reopened by "cold case" investigators 26 years later. The investigators reinterviewed the same persons who had been interviewed at the time of the shooting in 1981. This time, defendant, the owner of Bella's Pizza, was implicated. He was indicted for first degree murder and was subsequently convicted.
¶ 4 At trial, Ivan Kevo testified that on June 12, 1981, he lived across the alley from Bella's Pizza. As he was setting the table for dinner, he heard a shot. He looked out the window and saw a man lying in the alley. Kevo saw about 10 people running in different directions. He assumed that the people were Bella's Pizza delivery drivers. Kevo called 911.
¶ 5 Frank Mildenberger testified that on June 12, 1981, he and his girlfriend Helen Berthorolmey ate at Bella's Pizza. After they ate, they got their bicycles and walked to the alley to go toward his mother's house. While they were walking their bikes through the alley, Mildenberger saw two men; one was sitting on the wall and the other was standing in front of him. Mildenberger and Berthorolmey walked past the men, but when they got a short distance past, Mildenberger turned around and looked back at the men. Mildenberger saw the man who was standing pull out a gun and shoot the man sitting on the wall. Mildenberger told Berthorolmey what he saw. Mildenberger did not see where the man with the gun went after he fired the shot.
¶ 6 Mildenberger talked to the police later that day. He described the man who shot the gun as being between 5 feet 7 inches and 5 feet 9 inches, with black hair, wearing dress slacks, a "whitish tanish" shirt and black shoes. Mildenberger did not recall if he told police that he saw the shooter get into a car after the shooting. Mildenberger viewed a lineup on June 22, 1981. He was shown a photograph of the lineup in court and was asked if the photograph accurately depicted the lineup he viewed on June 22, 1981. Mildenberger responded yes. He was then asked if he picked out anyone in the lineup. Mildenberger used the photograph to point out the person he selected as the shooter in the lineup. Mildenberger added that when he selected the "shooter" in the lineup, he was told that the person he selected was a Chicago police officer.
¶ 7 Mildenberger testified that on June 22, 1981, he told police officers that he thought the shooter was the owner of Bella's Pizza. Mildenberger testified that he had never been introduced to the owner of Bella's Pizza and did not know the owner's name. Mildenberger assumed "he was the owner of the pizza place because the way he was dressed and the car that I had seen him supposebly [sic] if he was the shooter or not that it was parked there in the alley right where the deceased had gotten shot at."
¶ 8 In August 2007, Chicago police detectives interviewed Mildenberger about the June 21, 1981, shooting. During that interview, Mildenberger reiterated that he believed the shooter was the owner of Bella's Pizza.
¶ 9 In September 2008, a private investigator named Jack Byrne spoke with Mildenberger. Mildenberger gave the same description of the shooter to Investigator Byrne as he had given to the police in 1981. Mildenberger could not remember if he told the police in 2007 or the investigator in 2008 that the shooter had slick, combed-back black hair. Mildenberger could not recall whether he had told the investigator that the shooter was the owner of Bella' s Pizza, because he was nervous that day. Mildenberger told Investigator Byrne he did not think the shooter and the owner of Bella's pizza were the same person. Mildenberger spoke with the investigator about the gun he had observed. Mildenberger told the investigator that he owned a BB gun that looked similar to the gun he observed the shooter use. The investigator was shown the gun. The State then showed Mildenberger a photograph of a "similar gun."
¶ 10 Detective Griffin testified that he was assigned to investigate the shooting death of Milton Rodriguez in the alley behind Bella's Pizza. He viewed the scene of the crime and interviewed the police officers who were on the scene when he arrived. Based on his conversation with the officers, Detective Griffin learned that they were looking for a possible Hispanic offender and a 1972 to 1974 blue Chevrolet Nova. He also learned that Frank Mildenberger and Helen Berthorolmey had been in the alley at the time of the shooting and had heard part of a conversation between the shooter and the victim.
¶ 11 Detective Griffin interviewed Frank Mildenberger and Helen Berthorolmey at the scene and at the police station. They described the shooter as male, Hispanic, with a medium complexion, about 40 years old, 5 feet, 9 inches, 195 pounds with black, straight hair, combed back. The offender was wearing a light blue, short-sleeved shirt with jeans and black shoes and was driving a light blue four-door Chevrolet Nova.
¶ 12 After interviewing several other people, including Wilson Maldonado, Juan Torres, Ivan Kevo, Herman Rivera, Enrique Maldonado, James Bufka and John Chavez, Detective Griffin noted that he needed to speak with a man named Vega who was with Milton Rodriguez when Milton was shot. Detective Griffin learned that Enrique Maldonado had a blue two-door Chevy Nova. After learning this, Detective Griffin was no longer interested in finding the Nova.
¶ 13 Detective Griffin was called to the station when Vega arrived. When he got to the station, Clemente Valencia was there. Valencia was a manager at Bella's Pizza. After having a conversation with Valencia, Detective Griffin began looking for defendant so that he could question him about the murder. Arrangements were made with defendant's attorney, Anthony Onesto, for defendant to participate in a lineup.
¶ 14 Five people participated in the lineup including defendant, defendant's brother, another Bella's employee, a police detective and an unknown person. Both Mildenberger and Berthorolmey viewed the lineup and neither identified defendant as the shooter. Both said that the shooter's hair was straighter and darker than defendant's hair.
¶ 15 The shooting death of Milton Rodriguez went unsolved and became a "cold case." In August 2007, 26 years after the shooting, Guillermo "Willie" Navas, also known as Clemente Valencia, came forward and spoke with Detective Robert Rodriguez. Willie told Detective Rodriguez where he could find Wilson Maldonado and Enrique Maldonado. Detective Rodriguez and other detectives located and interviewed Wilson Maldonado, Enrique Maldonado, James Bufka, Frank Mildenberger, Helen Berthorolmey, Juan Torres, Herman Rivera and Ron Kepco.
¶ 16 Defendant was arrested on May 5, 2008, near his home. After the story of defendant's arrest ran in the newspaper, Detective Rodriguez received a call from Carmen Murillo, who had not been listed as a witness in any of the police reports from 1981. After speaking with Murillo, Detective Rodriguez met with Murillo's sister, Florence Balsitis. Balsitis had not been listed in any reports either.
¶ 17 Yolanda Tribett testified that she worked in the gun registration department of the Chicago police department. A search revealed that defendant registered a .45 Cold Commander with a 4.5-inch barrel on May 3, 1976.
¶ 18 William Demuth testified that he worked in the Illinois State Police and was an expert in the field of firearms and firearm identification. In September, 2007, he received a single fired cartridge case recovered in 1981. He examined it and determined that it was a .45-caliber automatic cartridge case that was consistent with being fired from a Colt Commander but could have been fired from millions of weapons.
¶ 19 Hemenegilo "Herman" Rivera testified that he worked at Bella's Pizza on June 12, 1981, as a delivery driver. Rivera identified defendant as the owner of Bella's Pizza but called him "Mike Romano."
¶ 20 At about 4:30 p.m. on June 12, 1981, Rivera heard several other drivers in the alley having a conversation with "Mike" and Willie, a manager, about a .25 raise. Defendant refused to give the $0.25 raise and he and Willie went back inside Bella's Pizza. Later, defendant and Willie came back outside and went to speak to Milton Rodriguez, who was sitting on a short wall drinking beer. Rivera could not hear what was being said. Rivera heard a shot. He "thought" defendant had a gun and fired the shot. Rodriguez fell to the ground. Defendant and Willie went back inside. Rivera also went back inside to get some pizzas and saw defendant.
¶ 21 Rivera testified that when the police arrived at the scene, they did not speak with him. The police reports from 1981 show, however, that police did speak with Rivera and that Rivera told police that Rodriguez had been with Vega. Rivera testified that he did not say anything to anyone about the shooting because he was told by other Bella's drivers not to. He did not talk to the police because he was afraid of defendant and he feared defendant was in the Mafia, although he did not know for sure if defendant was involved in organized crime. The police came to Rivera's house in January 2008, asking what, if anything, Rivera knew about the shooting. Rivera told police that defendant was having a conversation with Rodriguez and then a shot was fired.
¶ 22 Wilson Maldonado and his brother Enrique worked as pizza delivery persons for Bella's Pizza in June of 1981. On June 12, 1981, defendant and manager Willie were speaking with some of the drivers in the alley about a raise. Defendant indicated that he would not give the drivers a raise until business was better. Milton Rodriguez told defendant that he did not have the brains to increase business. Defendant then walked back inside.
¶ 23 About 10 to 15 minutes later, defendant approached Rodriguez, who was sitting on a low wall in the alley. Other drivers were present in the alley. Wilson heard a shot and saw Rodriguez fall. Wilson ran to Rodriguez and held him until police arrived. Wilson did not see defendant until a few minutes later when defendant walked to his car.
¶ 24 Wilson was interviewed by police following the shooting. He testified that he told the police what had happened. Several days later, a few men came into Bella's and spoke with Wilson about the shooting. They indicated to Wilson that they worked for defendant and asked Wilson some questions about the shooting.
¶ 25 Wilson testified that he had not seen Vega since the shooting but possibly saw him one or two weeks after the shooting. Wilson continued to work at Bella's for nine or 10 years after the shooting. Wilson had been arrested over 30 times between 1981 and his 2010 testimony in court.
¶ 26 Enrique Maldonado had also been arrested over 30 times between 1981 and 2010 and had been convicted of both state and federal drug-related felonies. On June 12, 1981, Enrique was employed as a Bella's delivery driver and drove a blue Chevrolet Nova. Enrique was present for the conversation with defendant and managers Jim and Willie about the raise. Enrique later saw defendant standing in front of Milton Rodriguez, who was sitting on a half-wall in the alley. Enrique heard Rodriguez say that someone should call the police because "they were going to kill him." As he was placing pizzas in his car, he heard a shot and saw Rodriguez fall from the wall. Defendant walked back toward Bella's and the others walked in different directions. Enrique drove away when police arrived because he did not want to get involved because he was on federal parole for a drug charge.
¶ 27 After the shooting, he went to a halfway house where he had to report because he was on parole. Although he saw his parole officer, he did not inform the parole officer that he had just witnessed a shooting. He returned to Bella's later that night and learned that police were looking for him. Enrique stated that he did not tell the police that he was present when Rodriguez was shot, but told police that he was making deliveries at that time. Enrique denied telling police that he was with Juan Torres, Herman Rivera and his brother Wilson, and did not tell them that he had left the area before the shooting. Enrique worked at Bella's for another eight years. He never told anyone that he witnessed the shooting until investigators questioned him in 2008.
¶ 28 Juan Torres was also a delivery driver at Bella's and was present on June 12, 1981, for the discussion between defendant, the managers and the drivers about the raise. Torres testified that Rodriguez told defendant that he needed a brain to make more money. Defendant confronted Rodriguez about the comment and then walked back inside Bella's.
¶ 29 About 20 minutes later defendant, Willie and Jim Bufka came out and walked toward Rodriguez, who was sitting on a wall in the alley drinking a beer. Defendant walked up to Rodriguez, pulled an item that looked like a gun from his back, and shot in the air. Rodriguez fell off of the wall. Torres did not see where defendant went.
¶ 30 Torres was taken to the police station later than night but did not recall telling police what he had seen. He also denied saying he was inside Bella's with Wilson Maldonado and Herman Rivera when Rodriguez was shot. Torres explained that "everyone" was afraid of defendant because "[p]robably they think it was a mafia guy." About a month after the shooting, some men came to Bella's to talk to him about the shooting. He could not remember what they said but he signed a paper at the end of the conversation. Nevertheless, Torres continued to work at Bella's for nine years after the shooting.
¶ 31 In January 2008, he was contacted by detectives about the shooting. He initially did not want to speak and said that he had "heard" Rodriguez was shot behind Bella's. He later told the detectives that he was present when Rodriguez was shot.
¶ 32 James Bufka testified that on the day of the shooting he was working as the night manager at Bella's Pizza. When he arrived for work, he and defendant learned that Milton Rodriguez had punched a cook. Defendant and Bufka walked outside into the alley and approached Rodriguez, who was sitting on a low wall, drinking a beer. As defendant approached Rodriguez, Rodriguez called defendant a "big shot" and "mister tough guy." Defendant responded that "yeah, I'm a tough guy." Defendant had a gun and Rodriguez did not. Defendant raised the gun and shot Rodriguez, who fell to the ground. Defendant then stated, "self-defense" and walked back into Bella's. The police never spoke with Bufka after the shooting.
¶ 33 Later that evening, two men arrived at Bella's and escorted Bufka to a lawyer's office, where he was introduced to the lawyer and other men who were allegedly ex-federal law enforcement. The men told Bufka what could happen to him if he was picked up for questioning. The lawyer gave Bufka business cards.
¶ 34 Bufka did not make any effort to contact the police after the shooting or after speaking to the lawyer and the men. He did not discuss the shooting until 2008, when he was approached by Detective Rodriguez. Bufka explained that he did not want to get involved because he was concerned for his safety as he had heard rumors that defendant was involved in the mob. Bufka continued to work at Bella's for some time until he quit because of "something about food."
¶¶ 35 Carmen Murillo testified that in June 1981, his father worked as a delivery driver for Bella's Pizza. Carmen, who was 15 at the time, worked in the kitchen and his sister Florence helped their father deliver pizzas. Carmen was present when defendant and Willie argued with the drivers about money and working conditions. Shortly after defendant reentered the restaurant, defendant, along with Willie and Jim Bufka left through the back door into the alley. Defendant had a gun in his hand. Carmen heard a gunshot. Defendant returned to the restaurant with a gun in his hand and gave the gun to Jack, the off-duty police officer who worked security for Bella's. Jack escorted defendant out of Bella's. Carmen did not talk to the police the day of the shooting.
¶ 36 The next day, a private investigator came to Bella's and questioned Carmen about what he knew. Carmen did not tell the investigator what he knew because his father had told him and his sister not to talk to anyone about it. Carmen stated that he was afraid because he had heard that defendant had friends in the Mafia. Carmen spoke with Detective Rodriguez in May 2008 and told Detective Rodriguez what he remembered.
¶ 37 Florence Balsitis was 13 in June, 1981. She helped her father deliver pizzas for Bella's.
On June 12, 1981, she was in Milton Rodriguez's car in the alley behind Bella's, petting his dog, and saw defendant and Rodriguez in a heated discussion. Willie and Jim were also present. Balsitis saw defendant shoot Rodriguez and return to Bella's with the gun in his hand. Florence's father grabbed her and told her, "You didn't see a thing. You don't say a thing. You just come with me. Never talk about this again," and then drove her home.
¶ 38 Balsitis identified defendant in a photo of the lineup done in 1981. She testified that defendant appeared different in the photo than he did on the day of the shooting. Balsitis testified that defendant wore his hair slicked back but in the photo, his hair was curly.
¶ 39 Balsitis did not talk to the police in June 1981. She first spoke to police in 2008, but did not identify defendant. She was afraid for herself and her family because she had heard rumors that defendant was related to organized crime. In December 2009, Balsitis met with an assistant State's Attorney. She testified the first time she ever told anyone that defendant had changed his hair was during that meeting. The parties stipulated that the first time Balsitis mentioned anything about defendant's hair appearing different in the photo lineup from 1981 was on January 10, 2010, the Sunday before the trial began.
¶ 40 The parties stipulated that the Chicago police department did a background check of defendant in an effort to determine whether or not defendant was associated with organized crime. The background check did not reveal any evidence that defendant was connected with organized crime or the Mafia at any time.
¶ 41 Detective Griffin testified for the defense. Detective Griffin testified that his reports from 1981 indicated that he interviewed Frank Mildenberger, Ivan Kevo, Wilson Maldonado, Herman Rivera, Enrique Maldonado, Juan Torres, James Bufka and John Chavez. The summary of the interview with Rivera indicated that Rivera told police he was at Bella's, corroborated what Torres told the police and substantiated where Torres and Wilson Maldonado were at the time of the shooting. The summary of what Juan Torres told police was that he was with Wilson Maldonado and Herman Rivera during the shooting. They were directly behind Bella's and out of eyesight of Rodriguez. The summary also indicated that Torres told police that he left the victim about five minutes before the shooting and the victim was talking to someone named Vega. The summary of the interview with Enrique Maldonado stated that Maldonado told police that he was with Torres, Rivera and his brother Wilson and left before any shot was fired. The police also interviewed Wilson Maldonado. The summary of the interview with Wilson does not indicate that Wilson witnessed the shooting. There were two witnesses who said that Wilson Maldonado and Juan Torres were involved in the shooting. The reports indicate that the witnesses stated they would cooperate in the investigation and could identify the offender. The police obtained the witnesses' identifying information.
¶ 42 Detective Rodriguez was also called by the defense. Detective Rodriguez interviewed Enrique Maldonado on February 29, 2008. During that interview, Enrique did not state that he had gone to meet with his parole officer on the day of the shooting.
¶ 43 Detective Rodriguez interviewed Carmen Murillo in May 2008. Detective Rodriguez's report does not include that Murillo told Detective Rodriguez that after he shot the victim, defendant handed the gun to Jack, the off-duty Chicago police officer. In addition, Carmen told Detective Rodriguez that after the shooting, his father made him and his sister get in the car and leave. Balsitis corroborated this in her interview.
¶ 44 The parties stipulated that assistant state's attorney Matthew Thrun would testify that he interviewed Enrique Maldonado on March 4, 2008, prior to his appearance before the grand jury. Enrique never stated that he met with a federal parole officer on June 12, 1981, after the shooting.
¶ 45 Cook County State's Attorney's Office Investigator John Duffy testified that he interviewed John "Jack" Howell. Howell stood in the initial lineup in 1981. Investigator Duffy spoke with Frank Mildenberger in July 2009. Before that however, Mildenberger received a copy of a report prepared by private investigator John Byrne regarding Mildenberger's interview with Investigator Byrne. That report contained Mildenberger's description of the shooter: skinny with combed-back hair. Investigator Byrne's report indicated that he asked Mildenberger whether or not he thought the shooter was the owner of Bella's pizza and that Mildenberger replied that he did not. Investigator Duffy testified that Mildenberger told him that even though he was 15 years old at the time of the shooting, he would still recognize the shooter if he saw him.
¶ 46 Investigator Duffy also testified that Mildenberger had told the original detectives that he believed the shooter was the owner of Bella's Pizza based on the way he was dressed and his car. Mildenberger did not identify defendant in the lineup in 1981.
¶ 47 The parties stipulated that assistant State's Attorney Tina Morris would testify that when she presented Carmen Murillo to the grand jury, Murillo testified that defendant held the gun by his side with his left hand, stopped by the door and placed the revolver in the back of his pants.
¶ 48 After hearing all of the evidence, the jury found defendant guilty of murder. Defendant was sentenced to 29 years' imprisonment. It is from ...