People v. Cisewski

• Decision Date: 15 May 1986
• Docket Number: No. 84-1168,84-1168
• Citation: 144 Ill.App.3d 597,494 N.E.2d 576,98 Ill.Dec. 454
• Parties: , 98 Ill.Dec. 454 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mary O. CISEWSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 576

494 N.E.2d 576

144 Ill.App.3d 597, 98 Ill.Dec. 454

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mary O. CISEWSKI, Defendant-Appellant.

No. 84-1168.

Appellate Court of Illinois,

First District, Fourth Division.

May 15, 1986.

Rehearing Denied June 9, 1986.

[144 Ill.App.3d 598] [98 Ill.Dec. 455] James J. Doherty, Public Defender of Cook County (Georgeen M. Carson, Chicago, of counsel) for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County (Joan S. Cherry, Richard A. Stevens and Maureen O'Brien, Chicago, of counsel), for plaintiff-appellee.

Justice McMORROW delivered the opinion of the court:

Following a jury trial, Mary O. Cisewski (defendant) was convicted of the voluntary manslaughter of her husband, Donald, and sentenced to five years' imprisonment. (Ill.Rev.Stat. 1983, ch. 38, pars. 9-2(b), 1005-8-1(a)(4).) Defendant appeals from her conviction, raising the following questions for our review: 1) whether the State's failure to disclose prior to trial a supposed inculpatory statement allegedly made by the defendant constituted reversible error; 2) whether the prosecution's statements during rebuttal closing argument deprived defendant of a fair trial under the sixth and fourteenth amendments to the United States Constitution (U.S.Const., amends. VI, XIV) and article one, section two of the Illinois Constitution. (Ill.Const.1970, art. I, sec. 2.) We affirm.

BACKGROUND

Evidence produced at trial established that commencing in the early 1970's, defendant began to suffer from paranoid beliefs that she was being harassed by police, tenants, lawyers and others whom she believed were part of a conspiracy against her. In 1979 or 1980, she purchased and registered a firearm in order to protect herself.

Defendant and Donald were married in 1981. Donald was aware of defendant's "harassment" beliefs at the time of the marriage. Sometime thereafter, defendant began to suspect that her husband was part of the conspiracy against her. In early 1982, her fears had magnified to the point where she believed that there was a plot to have her killed and she suspected that Donald would attempt to kill her.

On February 9, 1982, defendant came home from work and discovered that the gun was missing from the location in the house where she had previously placed it. Her husband claimed he did not know where she had put the weapon.

The following evening Donald produced the box of bullets to the gun. Defendant became frightened and believed that if he had taken the bullets he also must have taken the firearm. She found the loaded weapon upon a search of Donald's automobile later that day.

Within the next few days, defendant's mental condition deteriorated and her fears of Donald's plan to kill her intensified. By Friday night she was hysterical. When Donald came home from work late that evening, he and defendant began to argue. Donald went into the dining room of the Defendant's defense at trial was that she either had an unreasonable belief in self-defense (voluntary manslaughter) or that she acted with reckless disregard for Donald's safety (involuntary manslaughter). She testified at trial on her own behalf. A psychiatrist called by the defense testified that defendant suffered from paranoia.

                [98 Ill.Dec. 456] house and sat down.  Mary took the loaded gun from a drawer in the living room where she had hidden it a few days earlier, and went into the dining room with the gun in her hand.  She testified at trial that she intended only to scare her husband and that she did not intend to harm him.  Defendant showed the weapon to Donald and asked him if he thought this was funny.  She said to him, "Your problem is you think everything is funny."   Defendant then shot her husband in the head and abdomen.  She had no memory of having fired any shots.  She testified that she apparently fainted and that when she came to, she realized that the gun had been fired.  She walked into the kitchen, put the gun down, and called the police
                

The jury found defendant guilty of voluntary manslaughter. The trial court entered a finding of guilty as to that charge and sentenced defendant to five years' incarceration. Defendant's timely appeal followed.

OPINION

I

Defendant argues that the trial court erred in its denial of defendant's motion for a mistrial based upon the State's failure to disclose prior to trial a statement allegedly made by defendant. Defendant claims that the State should have disclosed an alleged telephone call by defendant to her deceased husband's employer requesting the proceeds of his life insurance policy and his pay check.

The record shows that the State first inquired of this phone call during its cross-examination of defendant at trial. The defendant objected to this line of questioning and made a motion for a mistrial. The objection was overruled and the trial court denied defendant's motion for a mistrial. Thereafter, during the State's presentation of rebuttal evidence, the trial court permitted the State to introduce the testimony of an employee where Donald had worked. This witness stated that following Donald's death, a person who identified herself as defendant called and asked about Donald's pay check and life insurance proceeds. The trial court also allowed defendant to present surrebuttal evidence showing that the defendant was incarcerated at the time of the phone call, that she could only make collect telephone calls, and that Donald's employer did not accept collect calls.

In pertinent part Illinois Supreme Court Rule 412 requires the disclosure of "any oral statements made by the accused * * * and a list of witnesses to the making and acknowledgement of such statements." (87 Ill.2d R. 412(a)(ii).) The rule is intended to encompass statements made to anyone which might have a bearing on the defendant's guilt or innocence. (People v. Weaver, (1982), 92 Ill.2d 545, 558, 65 Ill.Dec. 944, 442 N.E.2d 255.) Several factors are relevant to the determination of whether the State's failure to disclose amounted to reversible error, including the closeness of the evidence against the defendant and the strength of the undisclosed evidence. (People v. Weaver 92 Ill.2d 545, 560-61, 65 Ill.Dec. 944, 442 N.E.2d 255.) In order to constitute ground for reversal of a conviction, the nondisclosure must have prejudiced the defendant's presentation of his or her defense. People v. Stewart (1984), 105 Ill.2d 22, 64-65, 85 Ill.Dec. 241, 473 N.E.2d 840, cert. denied (1985), 471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 283.

In our view the State's introduction without prior disclosure of defendant's inquiry regarding her husband's pay check and life insurance proceeds was clearly error. We are unpersuaded by the State's claim before this court that the prosecutor's conduct was acceptable because the evidence was offered to prove that defendant had a motive to kill her husband and therefore was guilty of his murder. The State's contention misses the mark, in our opinion since the evidence had the additional and rather obviously deleterious effects of calling into question both the credibility of the defendant's testimony at trial as well as the validity of her theories of defense (i.e., voluntary or involuntary manslaughter). We observe that although the evidence of defendant's having shot her husband was not itself close in the case at bar, the issue was a closer one with regard to whether the defendant had an unreasonable belief in self-defense when she shot her husband (see Ill.Rev.Stat.1983, ch. 38, par. 9-2(b); People v. O'Neal (1984), 104 Ill.2d 399, 404-05, 84 Ill.Dec. 481, 472 N.E.2d 441), or whether she acted with reckless disregard when she shot him. (See Ill.Rev.Stat.1983, ch. 38, par. 9-3; People v. Frazier (1984), 129 Ill.App.3d 704, 708, 84 Ill.Dec. 787, 472 N.E.2d 1183.) Because the defendant testified at trial that she had not intended to shoot her husband, the evidence of the telephone conversation certainly had some bearing on which defense the jury found more acceptable. As a result we cannot agree with the State's argument that the evidence's relevance was limited to the question of whether defendant was guilty of murder.

Although we conclude that the evidence regarding the telephone conversation should not have been admitted at trial, our review of the record constrains us to determine that there is insufficient showing of prejudice to the defendant which would warrant reversal. The State urged the jury to find defendant guilty of murder. The closing argument of the defense was devoted almost exclusively to the theory that defendant was guilty of voluntary manslaughter. In fact the defense attorney posited to the jury that "the voluntary manslaughter instruction * * * is the most pertinent one for you to consider * * *," and subsequently stated, after going through each of the elements of voluntary manslaughter in light of the evidence produced at trial, that "if that's not Mary Cisewski in a nutshell, I don't know what is." Based upon this record, it is apparent that the defendant argued that she was guilty of voluntary manslaughter, not murder; this is precisely the verdict which the jury returned. As a result we cannot conclude that the introduction of testimony regarding the telephone conversation prejudiced defendant in the presentation of her defense. Nevertheless we parenthetically emphasize our agreement with the argument of the defendant on appeal that the prosecutor's conduct here amounted to an attempt to procure a "trial by ambush," which we unequivocally condemn. See Ill.S.Ct.R. 415(g), 87 Ill.2d R. 415(g); People v. Weaver, 92 Ill.2d 545, 558-59, 65 Ill.Dec. 944, 442 N.E.2d 255.

II

Defendant also contends that certain statements made by the prosecution during rebuttal closing argument deprived her of a fair trial.

It is well settled that a defendant is entitled to a fair trial free from prejudicial comments by the prosecution. (People v....