Court of Appeals of Illinois, First District, Third Division
Modified Opinion upon Denial of Rehearing December 3, 2014.
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 05 CR 28283. The Honorable Angela Munari Petrone, Judge, presiding.
Affirmed; mittimus corrected.
Defendant's conviction for the first-degree murder of a man he accused of having a relationship with his estranged wife was affirmed where the evidence, including his threat two months prior to the murder to kill his wife and the victim, another incident in which he abused his wife based on his suspicions, and his strange actions after the murder, was sufficient to allow a rational trier of fact to find defendant guilty beyond a reasonable doubt; furthermore, the evidence supported the finding that defendant shot a firearm in committing the offense, thereby making him subject to the 40-year firearm enhancement, and the sentence imposed was proportionate to the seriousness of the offense and consistent with defendant's rehabilitative potential, but the mittimus was corrected to reflect a single conviction for first-degree murder.
FOR PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, Cook County, Alan J. Spellberg, Peter D. Fischer, Chicago, Illinois.
FOR DEFENDANT-APPELLANT: Michael J. Pelletier, State Appellate Defender, Jennifer L. Bontrager, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
[¶1] Defendant, Joseph Trzeciak, was convicted of first-degree murder for killing Donald Kasavich. Trzeciak was sentenced to 90 years' imprisonment, 50 years for first-degree murder, with a 40-year enhancement for the use of a firearm during the commission of the murder. This court, with one justice dissenting, reversed Trzeciak's conviction, holding that a threat Trzeciak made to his estranged wife that he would kill her and Kasavich was inadmissible under Illinois's marital communication privilege and the statement's introduction at trial was prejudicial to Trzeciak. People v. Trzeciak, 2012 IL App. (1st) 100259, 972 N.E.2d 205, 361 Ill.Dec. 720.
Justice Murphy dissented, reasoning that Trzeciak did not intend for his conduct and threat to remain confidential and, therefore, the marital privilege did not extend to its use. The supreme court granted the State's petition for leave to appeal.
[¶2] The sole issue before the supreme court was whether the marital privilege applied to the April 2004 conversation between Trzeciak and his wife. The supreme court held the threat did not constitute a confidential communication, reversed the judgment, and remanded the case for us to address the other issues raised by Trzeciak's appeal. People v. Trzeciak, 2013 IL 114491, ¶ 53, 378 Ill.Dec. 761, 5 N.E.3d 141.
[¶3] On remand, we have carefully considered all of Trzeciak's challenges and find no reversible error. The evidence at trial proved Trzeciak guilty beyond a reasonable doubt. The trial court properly admitted evidence of his flight to show consciousness of guilt and proof of his spousal abuse on the issue of his motive. While we disapprove of the manner of the exchange between the trial court and the prospective juror who claimed bias during voir dire, we reject Trzeciak's contention that the trial court's conduct affected his right to a fair trial. Further, we find no error in the trial court's limit of the defense witness's testimony where the court's ruling did not frustrate defense counsel's ability to rebut the State's evidence. The trial court did not abuse its discretion in sentencing Trzeciak. His sentence is within the statutory range and is proportionate to the nature of the offense. Lastly, Trezeciak is correct that the mittimus must be amended to reflect a single conviction of murder. Accordingly, we uphold the judgment of the trial court and correct the mittimus to reflect only one murder conviction.
[¶5] On June 29, 2004, Donald Kasavich was found dead in his trailer in the Hegewisch area of Chicago. He suffered three gunshot wounds to the head. His trailer was found in disarray and a window had been broken. (We will provide greater detail of the facts as they become relevant to each of Trzeciak's claims of error.)
[¶6] The defense moved to dismiss the charges as based on evidence from Daniel Barnas, who was dead at the time of trial and, thus, unavailable to testify. Defense counsel's motion, after noting that both the murder weapon and a prescription belonging to Kasavich were found at Barnas's house, argued that Barnas tried to pin the murder on Trzeciak. The trial court denied the motion to dismiss because the sufficiency of the evidence was an issue to be determined by the jury.
[¶7] Trzeciak also filed several motions in limine to exclude various physical evidence and testimony. Defense counsel sought to prevent the State from introducing: (1) the testimony of his estranged wife, Laura Nilsen, about threats Trzeciak made toward both her and Kasavich based on marital privilege (subject of the 2012 opinion); (2) Nilsen's testimony about domestic violence as prior bad acts; (3) photographs Hammond police took of Nilsen showing extensive bruising as too prejudicial; (4) evidence from Trzeciak's truck on the grounds the consent to search lacked authority; (5) the circumstances of Trzeciak's arrest by Hammond police and other evidence of flight as prejudicial and irrelevant; and (6) the small bloody piece of glass and evidence related to it on the basis that the chain of custody was inadequate.
[¶8] Following extensive hearings on the motion in limine, the court denied all of the defense motions. (We note the record
on appeal only includes the motions and memoranda filed by the defense, not those filed by the prosecution.) The court ruled there was no chain of custody problem and denied that motion (point (6) above). The court also denied Trzeciak's motion about prior arrests and flight, finding evidence of flight was admissible as consciousness of guilt (point (5) above). No ruling was made on the motion to suppress evidence obtained from the search of Trzeciak's truck because the State informed the court it did not intend to use the evidence (point (4) above). The court denied Trzeciak's request to exclude photographs Hammond police took of Nilsen finding them more probative than prejudicial on the issue of motive (point (3) above).
[¶9] Concerning Trzeciak's prior domestic violence (point (2) above), the trial court agreed to allow the State to introduce some testimony about domestic violence, specifically any evidence tending to show motive for the murder. But, after viewing Nilsen's videotaped statement to the police, the trial court held the jury would not be allowed to see it.
[¶10] While the original opinion of this court did not address evidence of Trzeciak's prior domestic violence, the supreme court, after recognizing that Trzeciak's motion to exclude evidence of the prior domestic violence was not based on the marital privilege, nevertheless held that Trzeciak's conduct (which took place in April 2004) " need not have been barred by the marital privilege." People v. Trzeciak, 2013 IL 114491, ¶ 48.
[¶11] Later, the State moved to bar the defense from presenting testimony from John Riggio, a gun shop manager, from using photographic evidence of other guns from his shop. Defense counsel explained that to impeach witnesses' identification of Trzeciak's gun as the murder weapon, he wished to show a " gun array" to them to demonstrate how similar the murder weapon, which would only be shown in photographs, was to other gun models. The court deferred ruling on this issue until the relevant witnesses testified and instructed defense counsel to ask for a sidebar at that time.
[¶12] During jury selection, one potential juror stated that his wife's cousin had been accused of shooting at an off-duty officer and this could " possibly" make him unable to be fair. After further questioning, the potential juror stated he might not be fair to the prosecution. The judge responded:
" You are not excused. You will sit here and come back every day of the trial and watch how a fair jury operates. You can sit back there and come back every day of the trial under my direct order. Sit in the back."
Following the parties' in-chambers challenges to the panel, the trial judge excused the rejected jurors, but not the potential juror who claimed a possible bias. That juror was told to " sit here and come back every day of the trial and watch how a fair jury operates."
[¶13] At the conclusion of the trial, the jury found Trzeciak guilty on all counts. Defense counsel filed a posttrial motion, which the court denied after a hearing.
[¶14] At sentencing, the State presented testimony, over defense objection, from Hammond police officer Todd Larson, who testified about the ammunition found in Trzeciak's trailer after his arrest, as well as its general condition. Kasavich's sister read a victim impact statement. The State introduced Trzeciak's prior convictions: aggravated battery to a peace officer, delivery of cocaine, and unlawful use of a weapon by a felon. In mitigation, the defense offered a transcript of federal court testimony from an investigator who
looked into Trzeciak's alleged abuse by his fourth-grade teacher, as well as a sentencing recommendation from a federal conviction advising aggressive psychiatric treatment.
[¶15] The sentencing court summarized the evidence and found Trzeciak to be an increasingly violent offender from whom the public needed protection. The court found no mitigation present and sentenced Trzeciak to 50 years for murder, with a 40-year firearm enhancement, to run consecutively to his federal sentence.
[¶17] Sufficiency of the Evidence
[¶18] Trzeciak contends the evidence, all circumstantial, fails to sustain his conviction of first-degree murder for the shooting death of Donald Kasavich. Trzeciak attaches significance to the absence of physical evidence such as fingerprints, hairs, or fibers identifying anyone other than the victim despite a serious conflict having occurred at Kasavich's home, resulting in broken windows, torn blinds, and general disarray. And, the DNA recovered from under Kasavich's fingernails specifically excluded Trzeciak as the source. In addition, the shell casings at the scene matched a weapon recovered from Daniel Barnas's house. As for Trzeciak's DNA on a shard of glass found outside the trailer, the DNA cannot be linked to a specific time or date and does not place him inside the trailer or otherwise implicate him in Kasavich's murder. No one witnessed the shooting and Trzeciak never confessed.
[¶19] Trzeciak argues the State's attempt to link the gun recovered from Barnas's house to him fails because the witnesses who looked at the photograph of the murder weapon could not distinguish it from other similar makes and models. Trzeciak further argues the State's own evidence rebuts the State's theory that he was injured and left DNA after breaking the trailer's rear bedroom window and crawling out of it. No blood was found in the rear bedroom, which appeared undisturbed, including the dust on the windowsill. To Trzeciak, the single, small puncture wound on his wrist belies the kind of violence necessary to cause the extensive bruising to Kasavich, break multiple windows, tear blinds from the wall, and upend furniture. Therefore, contends Trzeciak, nothing links him to the crime scene or murder weapon, leaving reasonable doubt of his guilt for Kasavich's murder.
[¶20] The State contends " all the evidence in this case pointed directly to [Trzeciak] and to no one else." Trzeciak counters that " the State makes this claim only by ignoring and misstating evidence and by urging inferences unsupported and contradicted by the record." We disagree.
[¶21] In reviewing a sufficiency of the evidence claim, the question is whether, after viewing the evidence presented in a light most favorable to the State, any rational trier of fact could find all the essential elements of the crime proven beyond a reasonable doubt. People v. Jackson, 358 Ill.App.3d 927, 941, 832 N.E.2d 418, 295 Ill.Dec. 267 (2005). We will not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory that it raises reasonable doubt of the defendant's guilt. Jackson, 358 Ill.App.3d at 941. The trier of fact sits in a superior position to assess the credibility of the witnesses, resolve inconsistencies and determine the weight to be given the testimony, as well as construe any reasonable inferences that fairly may be drawn. Jackson, 358 Ill.App.3d at 941.
[¶22] The evidence established that Kelle O'Nions found Kasavich dead in his trailer at 10 p.m. on June 29, 2004. At the time, O'Nions lived with Kasavich. O'Nions admitted in her testimony that she had been a cocaine addict for 20 years, but claimed not to be under the influence of cocaine at the time of trial.
[¶23] O'Nions testified that she accompanied Kasavich on June 25, 2004, when he purchased a car from Richard Roethler in Hammond, Indiana, using a combination of cocaine and money. The following day, O'Nions and Kasavich went to Pennsylvania. When they returned on June 28, the car, which had been left at Kasavich's trailer, had vanished. The following morning, O'Nions and Kasavich went to Roethler's house, where they learned he had taken the car back. O'Nions testified she overheard Roethler and Kasavich argue about the car and cocaine. Kasavich left and O'Nions followed a short time later. She returned to Kasavich's trailer around 1 p.m. on June 29, the two argued. She left at his request, and when she did so, both Kasavich and his trailer were fine.
[¶24] O'Nions went to a motel with a man before returning to Kasavich's trailer around 10 p.m. She testified she tried to enter the trailer from the front door, but a coffee table barred the door. After forcing her way in, she found Kasavich face up on the floor with blood over his face. O'Nions called the police from a neighbor's house.
[¶25] O'Nions testified she knew Trzeciak and knew that Kasavich had bought crack cocaine from him in the past. She acknowledged that Kasavich bought cocaine from other people and she did not know how many people, if any, he owed for cocaine at the time of his murder.
[¶26] Detective Kevin Eberle of the Chicago police department testified that when he spoke with O'Nions at the station, she was sobbing and upset. She had no blood on her clothing, no cuts on her hands, and no injuries to her face. Detective Eberle also interviewed Richard Roethler and concluded he was not a suspect in Kasavich's murder because he had no motive. Before the murder, Roethler had gotten the payment for the car (cash and cocaine) as well as his car back from Kasavich. Eberle testified the area of Chicago where the murder occurred, Hegewisch, it not an area with a high murder rate.
[¶27] Patricia Madigan testified she became acquainted with Trzeciak through Barnas and did not know Kasavich. Madigan testified that in 2004 she was a crack addict, using it on a daily basis, but she claimed to have been clean for three to four years before trial. Madigan testified she called Trzeciak on the afternoon of June 29, 2004, for drugs. They arranged to meet at the intersection of 129th and Commercial around 1:30 or 2 that afternoon, but Trzeciak never showed. Madigan left and later arranged to meet Trzeciak at the same place at 4 p.m. Madigan arrived using Michael Lesko's car and saw Trzeciak walking down the street; Trzeciak got into the car with Madigan. Madigan testified Trzeciak's left arm was bandaged with a cloth that was full of blood. He told Madigan he had been in a police chase in Hammond and had cut himself on the glass in his truck. At trial, Chicago police detective Kevin Eberle testified Trzeciak's blue Ford pickup truck had no exterior damage and that none of the truck's glass was broken.
[¶28] Madigan testified Trzeciak asked her if she had heard about a murder in the trailer court; she replied she had not. They made a drug delivery, then Trzeciak took over as the driver and they picked up Trzeciak's adult daughter. Trzeciak asked his daughter if she had heard anything about a murder in the trailer court; she
replied she had not. The three of them went to Trzeciak's house and ate dinner. Trzeciak packed an overnight bag, but did not say why.
[¶29] Madigan and Trzeciak drove to Lesko's house. Madigan testified she knew Lesko because she had done drugs at his house. Once there, Trzeciak asked Madigan to wash his clothes, cut his hair, and rebandage his arm. Madigan testified she had never cut Trzeciak's hair before. She observed the cut on Trzeciak's arm and described it as a puncture wound in the wrist area, which was fairly deep. As she used the drugs she got from Trzeciak, he got dressed in the clothes she had washed. They left Lesko's home and drove back to Trzeciak's house through the alley. Trzeciak entered his house by jumping over a fence.
[¶30] Madigan waited in the car for 5 to 10 minutes for Trzeciak to return. When Trzeciak returned it was dark. He threw something over the fence that was wrapped in a blanket. Madigan testified " it looked to be like rifles or guns of some sort. *** You could see the butt of the one gun and the tip of where the bullet comes out." Trzeciak put the bundle in the trunk, and as he drove, he threw bullets out the window and had a pistol on his lap. They arrived at a landfill and Trzeciak gave Madigan crack cocaine. He told her to wait in the car and not to watch what he was doing. Trzeciak walked to the Calumet River and then Madigan heard a splash. When Trzeciak returned, he did not have the gun ...