People v. Baer

• Decision Date: 09 January 1976
• Docket Number: No. 61590,61590
• Citation: 342 N.E.2d 177,35 Ill.App.3d 391
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas BAER and Michael Wizniuk (Impleaded), Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 177

342 N.E.2d 177

35 Ill.App.3d 391

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas BAER and Michael Wizniuk (Impleaded), Defendants-Appellants.

No. 61590.

Appellate Court of Illinois, First District, Fifth Division.

Jan. 9, 1976.

Rehearing Denied Feb. 19, 1976.

Robert E. Cronin, MacDonald, Hanley, Cronin & Supena, Chicago, for defendants-appellants.

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Laurence J. Bolon and William J. Stacy, Asst. State's Attys., of counsel.

SULLIVAN, Justice:

Defendants were indicted for murder and armed robbery. In the first trial, the State chose to proceed against Baer separately and he was convicted of armed robbery. However, the jury was unable to reach a verdict on the murder count, and a mistrial was declared as to that charge only. Subsequently, both defendants were tried together, and each was convicted of murder. Wizniuk was also convicted of robbery. Baer received a sentence of 20 to 40 years for murder and 5 to 15 years for armed robbery. Wizniuk was sentenced to 20 to 40 years for murder and 3 to 9 years for robbery.

In this single appeal from both trials, each defendant has filed briefs in which both contend that the State failed to prove beyond a reasonable doubt that they were guilty of murder. In addition, Baer contends that (1) the court improperly restricted inquiry into the quarrelsome nature of the deceased and gave a misleading instruction on self-defense; and (2) his conviction of armed robbery was based upon a written statement taken in violation of his constitutional right against self-incrimination. Wizniuk separately asserts that (1) reversible error was committed when the testimony of an accomplice was admitted which linked him with the plot to rob the deceased; and (2) his right to a fair trial was impaired by the prosecutor's improper comments concerning the testimony of this accomplice and by the failure of the trial judge to order separate trials.

From the testimony received in Baer's first trial, it appears that Robert Rothwell was found unconscious behind a restaurant, the apparent victim of a robbery. He never regained consciousness and died four and one-half months later. When the investigation began to focus on Baer, he voluntarily appeared for questioning and made two incriminating written statements. In the first, he admitted only that he had been involved in a fight with Rothwell. In the second, made the following morning, he stated (1) that he and Wizniuk had decided to rob Rothwell after observing him in possession of several hundred dollars while playing pool; and (2) that Ralph Arellano was recruited by Wizniuk to assist in the robbery. These statements were admitted into evidence over objection that they were not voluntarily given.

Further, in this first trial of Baer, Arellano testified for the State that he was asked to participate in the robbery by Wizniuk while they were in a car following Baer and Rothwell to a restaurant. After they arrived, he saw Rothwell on the ground with Baer on top of him, and he then observed Baer jump on Rothwell who was lying face upward. He helped Baer rob the unconscious victim of his wallet, and the three of them left in Wizniuk's car. Arellano's cross-examination elicited the fact that in return for his testimony the State had agreed to drop the murder charge against him and to recommend a sentence of two years for robbery. Credit for time he had already served was also to be given, which would leave little time to serve on the recommended sentence.

The only other relevant testimony at this trial was that of the doctor who had performed the autopsy on Rothwell. He stated that the cause of death was secondary pneumonia brought on during Rothwell's convalescence. This doctor also testified that a 3.0 milligram accumulation of morphine in the liver bile of the deceased was of no significance.

After the mistrial was declared on the murder charge, it was agreed that defendants would be tried together in a second trial with the proviso that the statements of Baer which had been introduced in his first trial would not again be offered into evidence.

In that second trial, Denise Netrafa, Baer's former girl friend, testified for the State that Baer had related his part in the incident to her. On cross-examination, she admitted that Baer had jilted her for a mutual friend and that she presently had a paternity suit pending against him. She also admitted that she had used drugs in the past.

Arellano then testified substantially as he had in Baer's first trial and Dr. Shalgos, the supervising physician at the autopsy, testified that Rothwell had been comatose due to traumatic degeneration of the brain and spinal cord cells caused by a blow to the head, and that his enforced convalescence eventually resulted in extensive secondary pneumonia--from which he died.

OPINION

Defendants joinly contend that the requisite proof of murder was lacking because the State failed to prove beyond a reasonable doubt that Rothwell's death was not the result of intervening causes.

As a part of the Corpus delecti, the prosecution must establish that death resulted from a criminal agency. (People v. Wilson,400 Ill. 461, 81 N.E.2d 211.) However, once the State has shown 'the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it appears that death was caused by a supervening act disconnected from any act of the defendant.' (People v. Meyers, 392 Ill. 355, 359, 64 N.E.2d 531, 533; see also, People v. Brown, 9 Ill.App.3d 730, 293 N.E.2d 1.) Thus, in People v. Stamps, 8 Ill.App.3d 896, 291 N.E.2d 274, where it was indicated that the deceased strangled on his own blood during emergency surgery and it was contended that the sole cause of death was lack of proper treatment, the court held that the cause of death was the gunshot wound that had compelled the surgery. Similarly, in People v. Paulson, 80 Ill.App.2d 44, 225 N.E.2d 424, where the cause of death was meningitis resulting from an infection which developed during an operation necessitated by a head injury allegedly inflicted by defendant, it was held that the meningitis was not disconnected from the act of defendant.

In this case, it is apparent that the acute secondary pneumonia resulted directly from paralysis induced by the blow to the head. It was not a separate intervening act disconnected from the injury inflicted, and therefore will not relieve defendants from liability for the death of Rothwell. Meyers.

Defendants correlatively urge that the unexplained presence of morphine in Rothwell's body raises a reasonable doubt as to the cause of death. However, there was no evidence presented that the quantity of morphine found was the cause or even a contributing cause of death. To the contrary, the pathologist testified that the presence of morphine was unrelated to the cause of death. In view thereof, we see no merit in this contention.

Baer separately contends that the trial judge improperly restricted his self-defense plea by excluding inquiry into the quarrelsome nature of the deceased. The record reflects that at Baer's separate trial, objections were sustained to certain questions intended to elicit such information. Counsel first asked the stepmother of the deceased, 'On May 4, 1971 was your son Robert in a matter with the Police Department?' An objection was sustained, and he then inquired of Officer DePayola concerning a previous arrest incident involving the deceased, by which he expected to establish that Rothwell had been arrested for assault and battery. ¹ Again, an objection was sustained.

It appears to be the rule that where the general reputation of the deceased is in issue, specific acts of prior aggression are not admissible. This is true because general reputation, while probative of character, is an aggregate of facts which create a general impression. Because only the general impression may be testified to, a specific prior instance would be irrelevant to the issue of general reputation. See generally, Wigmore on Evidence §§ 52, 920, 1608 (3d ed.1940).

It is apparent here that the defense was attempting to show that Rothwell was the aggressor and that defense counsel's questions were intended to establish a character trait of the deceased and not his reputation. As such, we believe the better reasoned authorities permit an inquiry into the propensity of the victim for violent aggression where the plea is self-defense. (See 1 Wigmore on Evidence § 63 and authorities therein cited.) Further, specific prior incidents of violent aggression by the victim may be admissible as tending to show that he was the aggressor in the incident. Id. § 198.

However, we do not believe that the interrogation in question here is relevant to the issue of Rothwell's allegedly violent nature. The questions sought to establish that deceased had been arrested in 1971 for disorderly conduct, which would not in itself establish a tendency towards violence. There is nothing in the record to indicate that this arrest resulted from an act of violence or, if it did, that the deceased was the aggressor. Further, a mere arrest is not sufficient to establish that Rothwell actually performed any of the acts charged. See Ruffalo's Trucking Service, Inc. v. National Ben-Franklin Ins. Co., 243 F.2d 949 (2d Cir. 1957); People v. Halkens, 386 Ill. 167, 53 N.E.2d 923; People v. Schultz-Knighten, 277 Ill. 238, 115 N.E. 140; 3 Wigmore on Evidence § 980a (3d ed.1940).

Moreover, assuming arguendo that the questions were proper, there could have been no harm in their exclusion. A mistrial was declared on the murder charge in Baer's first trial in which the questions were propounded, and self-defense is obviously not available as a defense to his armed robbery conviction. No attempt was made during Baer's second trial on the murder charge alone to inquire...