People v. Carbona

• Decision Date: 07 April 1975
• Docket Number: No. 59299,59299
• Citation: 327 N.E.2d 546,27 Ill.App.3d 988
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ruthe CARBONA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 546

327 N.E.2d 546

27 Ill.App.3d 988

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ruthe CARBONA, Defendant-Appellant.

No. 59299.

Appellate Court of Illinois, First District, First Division.

April 7, 1975.

Rehearing Denied May 15, 1975.

Julius Lucius Echeles and Carolyn Jaffe, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Cook County, Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Asst. State's Attys., of counsel), for plaintiff-appellee.

BURKE, Presiding Justice:

Defendant Ruthe Carbona was indicted and tried for the murder of her husband, Joseph Carbona. (Ill.Rev.Stat.1969, ch. 38, par. 9--1.) A jury found defendant guilty and she was sentenced to a term of 20 to 60 years imprisonment. Twelve issues are raised by defendant on appeal.

Defendant contends: (1) that her Miranda rights were violated; (2) that it was error to admit improper expert testimony; (3) that it was error to admit ballistics evidence which differed substantially from actual conditions; (4) that the use of an incomplete diagram of the scene was prejudicial; (5) that the presentation of improper rebuttal evidence warrants reversal; (6) that she was entitled to allowance of a motion for acquittal after the State's case in chief; (7) that it was error to allow a former assistant state's attorney to testify to his recommendation that murder charges be lodged against defendant; (8) that it was prejudicial to inform the jury of defendant's unwillingness to give a homicide statement in the exercise of her right to remain silent; that the prosecutor conducted himself improperly during defendant's cross-examination and during closing argument; (10) that the jury was improperly interrogated about publicity concerning the trial; (11) that the jury was improperly instructed; and (12) that the evidence failed to prove defendant guilty beyond a reasonable doubt. We will state the pertinent facts and first consider the question of the sufficiency of evidence.

On December 22, 1971, at approximately 9:25 a.m., Officer Robert Buckley responded to an emergency call over the police radio which directed any patrolling car to proceed to the home of Lieutenant Joseph Carbona, 1206 Euclid, Mount Prospect. Buckley was the first of several police officers to arrive at the scene. Upon the hysterical pleas of the defendant, Buckley entered the front door of the home. The deceased, Lieutenant Carbona, way lying on the foyer floor face up with his feet propped two steps up on the landing of a staircase leading to the second floor of the house. The Lieutenant was fully clothed, wearing a brown corduroy carcoat, a blue nylon windbreaker underneath, a blue undershirt, and blue trousers. Buckley observed blood on the deceased's chest and found a wound in the chest area of the body. The deceased's eyes were half open and the chest wound had apparently stopped bleeding. Buckley asked the defendant what happened, and she replied, 'I don't know. We had a fight.' Buckley could not find any signs of life, but immediately called an ambulance for medical assistance. Buckley observed a .357 magnum revolver on the fourth stair. He did not observe or smell any signs of gun powder, nor did he notice any bruises or marks on the face of the defendant. During cross-examination, Buckley testified that he thought Lieutenant Carbona was dead.

Donald Shaw was the next officer to arrive at the Carbona home. He grabbed his first-aid kit and ran towards the front door. Defendant screamed, 'Hurry Don, hurry; Joe has been hurt.' Shaw checked for vital signs but found none. He observed that the deceased's eyes were open and beginning to dry, and that the wound in the chest had stopped bleeding. The defendant appeared to be in an hysterical state, screaming, 'Help him, Don; help him, Don. He wanted to hurt me, and Joe got hurt. Tell me he is all right.' A black jacket, neckties, and trousers were found scattered on the landing by Lieutenant Carbona's feet. Further investigation revealed a bullet hole in the back of the deceased considerably higher than the wound in the chest. A bullet was recovered from the lining of the brown corduroy carcoat.

Shaw testified that his assignment was to accompany the ambulance which transported Lieutenant Carbona's body to Holy Family Hospital. The deceased was taken to the emergency room at 11:30 a.m. and pronounced dead on arrival. The body was removed to the hospital's morgue facility. Shaw and Investigator William Denaer undressed and processed the body. Photographs were taken and the deceased's clothing was placed in plastic bags. Shaw tagged the body for purposes of identification.

On cross-examination Shaw testified that he did not observe any marks or bruises on the defendant. However, he did notice bruises on the knuckles and wrists of the deceased. Shaw stated that it was his opinion, based upon his training and experience as a police officer, that the back wound exhibited characteristics of an entrance wound. He observed a halo surrounding the perimeter of the back wound which generally indicates a bruising effect caused by the bullet entering the body at that point.

Investigator William Denaer corroborated the testimony of Officer Shaw. Denaer identified in court every item of clothing removed from Lieutenant Carbona at the morgue, explaining the manner in which each item was identified and bagged. He also stated that he photographed the scene with color and black and white film. The trial court excluded the color prints from evidence because of their possible inflammatory effect; however, a few black and white photographs were later admitted as instructional aids for the jury.

Gary Nelson, a mortician from the Oehler Funeral Home, arrived at the Carbona home with an assistant at approximately 10:30 a.m. Pursuant to the instructions of police officers, Nelson and his assistant lifted the deceased's body inside a basket type canvas cot. Nelson testified that at no time was the body dragged. After Nelson transported the deceased to the hospital, the body was not removed from the cot until it was lifted onto the autopsy table in the hospital morgue. Nelson assisted Officers Shaw and Denaer in undressing the body.

Sergeant Ernest Marinelli arrived on the scene at approximately 9:30 a.m. Officer Buckley informed Marinelli that the defendant had been arguing with her husband, Lieutenant Carbona, and that the Lieutenant had been shot. Defendant was taken to a neighbor's home accompanied by her mother, brother and sister. Marinelli, who was known by the defendant through her previous associations with the Sheriff's Police Department, approached the defendant in the neighbor's home and asked, 'What happened?' Defendant told Marinelli that the deceased had the gun in his hand while he was descending the stairs. In an attempt to dissuade the deceased from leaving her, defendant pulled at the arm of the deceased which held the gun. The deceased tripped, discharging the gun, and he fell to the landing of the staircase. The record is clear that Marinelli's police report of December 22, 1971, accurately recounted his interview with the defendant at the neighbor's home. The record is also clear that defense counsel had knowledge of defendant's statement.

The court heard Marinelli's testimony regarding defendant's initial statement in voir dire outside the presence of the jury. The court excluded the statement holding than Miranda warnings should have been given since defendant was the focus of interrogation.

Marinelli further testified that he collected evidence in the Carbona home. A bullet was recovered from the inner lining of the Lieutenant's brown corduroy carcoat. A .38 snub nose revolver loaded with six unspent shells was found in one of the pockets of the carcoat. The .357 magnum, which was found on the fourth step, contained three live cartridges and one spent cartridge. The Lieutenant's dark Lincoln Continental automobile was parked in the driveway and contained items of clothing and books. The deceased's eyes were drying. Marinelli believed that Lieutenant Carbona was dead. Marinelli did not smell any alcohol around the deceased's body. When Marinelli returned to the police station at approximately 11:00 a.m., he found the defendant in the Commander's office with a policewoman on the third floor of the station.

Marinelli testified that he advised defendant of her constitutional rights with the proper warnings. Defendant indicated that she understood those warnings by shaking her head yes. She was crying, but not hysterical. Defendant told Marinelli that she met her husband at her place of employment on the previous evening. He followed the defendant home in his own car. Defendant said that once they were at home, the Lieutenant attempted to run her over with his car. The defendant's leg had been struck, but she told Marinelli that a doctor was not needed.

Defendant related to Marinelli that an argument ensued which awoke the defendant's two children. The deceased left the home at about 3:00 a.m. but later returned at about 6:00 a.m. The deceased intended to remove his personal belongings and leave. After much argument, the Lieutenant struck the defendant on the head and threatened to kill her. Once he started to walk downstairs, the defendant grabbed his arm. After a struggle, the deceased tripped, discharging the gun. Defendant told Marinelli that she couldn't recall if it was he or she who fired the weapon, or if it was in her hand or his hand when the gun discharged. Defendant claimed that she immediately called the police.

Marinelli offered his testimony concerning the defendant's statement at the police station before trial began. After hearing the testimony, the trial court denied defendant's preliminary motion to suppress finding that there was no evidence of pressure or coercion placed upon the defendant. Defendant's statement to Marinelli at the police station was allowed to go...