People Of The State Of Ill. v. Gutierrez, No. 1-07-2516.

CourtUnited States Appellate Court of Illinois
Writing for the CourtPresiding Justice MURPHY delivered the opinion of the court:
Citation932 N.E.2d 139,402 Ill.App.3d 866,342 Ill.Dec. 248
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nicholas GUTIERREZ, Defendant-Appellant.
Docket NumberNo. 1-07-2516.
Decision Date30 June 2010

402 Ill.App.3d 866
932 N.E.2d 139
342 Ill.Dec.
248

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Nicholas GUTIERREZ, Defendant-Appellant.

No. 1-07-2516.

Appellate Court of Illinois,First District, Third Division.

June 30, 2010.


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Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Christopher Kopacz, Asst. Appellate Defender, Chicago, IL, for Petitioner-Appellant.

Anita Alvarez, State's Attorney of Cook County, Chicago, IL (James E. Fitzgerald, Ashley A. Romito, Jessica R. Ball, Asst. State's Attorneys, of counsel), for Respondent-Appellee.

Presiding Justice MURPHY delivered the opinion of the court:

342 Ill.Dec. 254
402 Ill.App.3d 868

After a jury trial, defendant, Nicholas Gutierrez, was convicted of first-degree murder, aggravated criminal sexual assault, burglary, and concealment of a homicidal death. He was sentenced to natural life in prison. On appeal, defendant argues that: (1) his sentence is excessive; (2) his conviction for aggravated criminal sexual assault should be reversed because the State failed to prove that the victim was alive at the time of the sexual assault; (3) his conviction for burglary should be

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932 N.E.2d 146

reversed because he had unlimited authority to be inside the funeral home; (4) the jury instructions constructively amended the burglary charge of the indictment; (5) the trial court erred in ruling that he failed to establish a prima facie case of racial discrimination during voir dire; and (6) the State made improper comments during closing and rebuttal arguments.

I. BACKGROUND

Defendant, then 19 years old, was charged with first-degree murder, aggravated criminal sexual assault, burglary, concealment of a homicidal death, robbery, and armed robbery after the body of Mary Stachowicz was found under the floorboards of his apartment, which was located above the F.J. Sikorski Funeral Home. Defendant was convicted of all charges except robbery and armed robbery. The trial court found defendant eligible for the death penalty based on the murder during the commission of aggravated criminal sexual assault but sentenced him to natural life in prison for the murder, 30 years' imprisonment for aggravated criminal sexual assault, 7 years' imprisonment for burglary, and 3 years' imprisonment for concealment of a homicidal death, all sentences to be served concurrently. The following evidence was adduced at trial.

A. Trial
1. Francine Sikorski

Francine Sikorski owned the F.J. Sikorski Funeral Home, located at 3630 West George Street in Chicago, and lived in apartment 2 East above the funeral home. Defendant and Ray Scacchitti moved into the other apartment, 2 West, in December 2001. The stairwell to the apartments

402 Ill.App.3d 869

could be accessed through a door in the lobby of the funeral home; through a single door outside of the funeral home, just west of the main entrance on George Street; and through a stairwell in the backyard. Sikorski testified that she allowed them to live in the apartment rent-free in exchange for their services at the funeral home. Defendant and Scacchitti had keys to the front door of the funeral home and keys to their apartment.

In the fall of 2002, defendant and Scacchitti stopped working at the funeral home. Sikorski testified that she asked defendant and Scacchitti to stop working and move out because she and Scacchitti were having personality conflicts. On cross-examination, Sikorski admitted that she “might” have told the police the night of the murder that she had fired defendant. Sikorski testified that she gave defendant the option of continuing to stay there; she further testified that she loved defendant, she talks to him almost daily, and she visits him weekly. Scacchitti and defendant began looking for another place to live and packing their belongings in boxes. After Sikorski told Scacchitti and defendant to move out, she expected that they would use the same two doors to that apartment, and they had the authority to do so.

About a month before her death, Mary Stachowicz began working part-time at the funeral home doing light cleaning and helping with Polish translations.

The morning of November 13, 2002, Christopher Stachowicz asked his mother, Mary, if he could borrow $10. When he was taking the money from her wallet, he noticed that there was a $10 bill and a $20 bill, as well as 5 to 10 other bills. He took the $10 bill, left the remaining bills, and returned the wallet to his mother's purse.

Sikorski testified that on November 13, 2002, Mary arrived at the funeral home at 8:30 a.m. There was a funeral at the church across the street at 10 a.m. At 10:50 a.m., Sikorski returned to the funeral

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932 N.E.2d 147

home to pick up her belongings and then left for the cemetery. Mary stayed at the funeral home to answer the phones until Sikorski returned. Mary called her husband, Jerry, at 11 a.m. The caller ID for the funeral home's phone showed that a call came in on November 13, 2002, at 11:32 a.m., from the pay phone at the Chicago Transit Authority (CTA) station at Belmont and Kimball.

Sikorski returned at 12:45 p.m. The front door to the funeral home was locked, and a man was standing outside with clothes for the next visitation. Sikorski looked through the funeral home but could not find Mary. She found Mary's purse and jacket on the chair in the arrangement room and her car was still in the parking lot. In addition, there was a clean dish and a dish towel on the table near Mary's jacket and purse.

402 Ill.App.3d 870

Sikorski went to pick up her daughter in Wilmette at 2:45 p.m. and was gone for 45 minutes. When she returned, she called the church looking for Mary and went through Mary's purse looking for her husband's phone number. Sikorski called the rectory at St. Constance church, where Mary was scheduled to work later that day, and got her husband's number. At 3:50 p.m., Francine Sikorski called Jerry Stachowicz and told him that Mary was missing. Jerry and his son went to the funeral home, arriving at 4:30 p.m. Jerry discovered Mary's jacket, scarf, and purse sitting on a chair. Christopher looked in his mother's wallet and discovered that the billfold area was empty.

Jerry called the police and reported his wife missing. Mary's family and the police searched for her at the funeral home and the church across the street.

2. Ray Scacchitti

Scacchitti testified that he is homosexual and defendant is bisexual. In November 2002, he and defendant were living openly as a couple in an apartment above the funeral home. In January or February of 2002, shortly after Scacchitti and defendant moved into the apartment, they began working at the funeral home. Their wages would be deducted from their rent. In October 2002, Sikorski told Scacchitti and defendant that she did not want them working at the funeral home anymore. She also asked them to move out. After this time, neither Scacchitti nor defendant would “go into different rooms of the funeral home.”

Soon after Sikorski terminated Scacchitti's and defendant's employment, she hired Mary Stachowicz, whom Scacchitti knew from St. Hyacinth, the church across the street. Scacchitti testified that Mary knew he was homosexual and never confronted him or questioned his beliefs. However, defendant and the State stipulated that Angela Ruffolo, Mary's daughter, would testify that her mother did not like defendant and Ray and did not approve of their lifestyle.

The morning of November 13, 2002, defendant went with Scacchitti to Flower Fantasy, the flower shop where Scacchitti worked. When they arrived, Scacchitti gave defendant $4 to buy breakfast; defendant went to buy it and then ate while Scacchitti worked. After 10:30 a.m., defendant went with the flower shop owner's sister to a fruit store half a block away, where they bought fruit for a fruit basket. At 11 a.m., defendant left for the Harlem and Irving Plaza mall, where he was to look for a job, play video games, and eat lunch. Scacchitti gave him between $4 and $7. Scacchitti also gave defendant his cell phone.

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After defendant left the flower shop, Scacchitti tried to reach him between three and five times. Defendant did not respond to any of those calls, which was unusual.

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At 3 p.m. he heard from defendant, who said he was on his way back to the flower shop. When defendant arrived at the flower shop, he was limping and there was blood on his temple. Defendant said he injured himself when he played basketball at the Norridge gym and that he cut his finger. Defendant gave Scacchitti $30, which he claimed that he won from the basketball game. Scacchitti never knew defendant to have that much money.

Defendant changed into his Subway uniform in the bathroom of the flower shop and put the clothes he had been wearing in the van. Scacchitti took him to work some time after 4 p.m. He then returned to the flower shop and drove the owner's sister to Schiller Park. While he was trying to find the phone number for an apartment that was for rent, Sikorski called him and said that Mary was missing. Scacchitti went to the Subway where defendant was working and asked if he had been to the funeral home that day. Defendant responded that he had not. Because defendant was finished working, the two returned home.

Mary's family asked to search defendant and Ray's apartment. After sending defendant first to check on their pets, Scacchitti took Mary's son upstairs to their apartment.

On November 13 or 14, defendant burned incense while playing video games. On the 14th, when a story about Mary was on the television news, defendant said, “God doesn't let bad things happen to good people.” Scacchitti testified that defendant's...

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82 practice notes
  • People v. Himber, No. 1-16-2182
    • United States
    • United States Appellate Court of Illinois
    • March 17, 2020
    ...variance with the purpose and spirit of the law or is manifestly disproportionate to the nature of the offense. People v. Gutierrez , 402 Ill. App. 3d 866, 900, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010) ; Ramos , 353 Ill. App. 3d at 137, 288 Ill.Dec. 460, 817 N.E.2d 1110.¶ 60 Defendant was co......
  • People v. Gomez, No. 1–09–2185.
    • United States
    • United States Appellate Court of Illinois
    • September 30, 2011
    ...assault statute does not require a living victim. See 720 ILCS 5/12–12(f), 12–13(a)(1), 12–14 (West 2000). ¶ 69 In People v. Gutierrez, 402 Ill.App.3d 866, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010), the third division of this court considered and rejected the same argument that defendant rais......
  • People v. Brisco, No. 1–10–1612.
    • United States
    • United States Appellate Court of Illinois
    • March 29, 2012
    ...to future prosecution. People v. DiLorenzo, 169 Ill.2d 318, 322, 214 Ill.Dec. 846, 662 N.E.2d 412 (1996); see also People v. Gutierrez, 402 Ill.App.3d 866, 890, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010). “Thus, the question is whether, in light of the facts of record, the indictment was so im......
  • People v. Williams, No. 1–13–1103.
    • United States
    • United States Appellate Court of Illinois
    • November 24, 2015
    ...Looking at only the first round does not represent the totality of relevant facts and circumstances. See People v. Gutierrez, 402 Ill.App.3d 866, 894, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010) (improper to consider only prosecutor's final four peremptory challenges; proper for trial court to ......
  • Request a trial to view additional results
83 cases
  • People v. Himber, No. 1-16-2182
    • United States
    • United States Appellate Court of Illinois
    • March 17, 2020
    ...variance with the purpose and spirit of the law or is manifestly disproportionate to the nature of the offense. People v. Gutierrez , 402 Ill. App. 3d 866, 900, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010) ; Ramos , 353 Ill. App. 3d at 137, 288 Ill.Dec. 460, 817 N.E.2d 1110.¶ 60 Defendant was co......
  • People v. Gomez, No. 1–09–2185.
    • United States
    • United States Appellate Court of Illinois
    • September 30, 2011
    ...assault statute does not require a living victim. See 720 ILCS 5/12–12(f), 12–13(a)(1), 12–14 (West 2000). ¶ 69 In People v. Gutierrez, 402 Ill.App.3d 866, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010), the third division of this court considered and rejected the same argument that defendant rais......
  • People v. Brisco, No. 1–10–1612.
    • United States
    • United States Appellate Court of Illinois
    • March 29, 2012
    ...to future prosecution. People v. DiLorenzo, 169 Ill.2d 318, 322, 214 Ill.Dec. 846, 662 N.E.2d 412 (1996); see also People v. Gutierrez, 402 Ill.App.3d 866, 890, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010). “Thus, the question is whether, in light of the facts of record, the indictment was so im......
  • People v. Little, 1-19-1108
    • United States
    • United States Appellate Court of Illinois
    • June 8, 2021
    ...were removed for cause. See People v. Evans , 125 Ill. 2d 50, 65, 125 Ill.Dec. 790, 530 N.E.2d 1360 (1988) ; People v. Gutierrez , 402 Ill. App. 3d 866, 893, 342 Ill.Dec. 248, 932 N.E.2d 139 (2010). The State then contends that because 11 of the 35 venirepersons (Barnes, Walter, Collins, Br......
  • Request a trial to view additional results

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