People v. Cozzi

• Decision Date: 05 February 1981
• Docket Number: No. 78-235,78-235
• Citation: 93 Ill.App.3d 94,48 Ill.Dec. 670,416 N.E.2d 1192
• Parties: , 48 Ill.Dec. 670 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jack Joseph COZZI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1192

416 N.E.2d 1192

93 Ill.App.3d 94, 48 Ill.Dec. 670

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jack Joseph COZZI, Defendant-Appellant.

No. 78-235.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 5, 1981.

Laurence J. Bolon, Frank, Melamed & Bolon, Chicago, for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Marcia B. Orr, Iris E. Sholder, Armand L. Andry, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

JOHNSON, Justice:

Defendant, Jack Joseph Cozzi, was charged with the offense of murder (Ill.Rev.Stat.1975, ch. 38, par. 9-1(a)(1)). Following a bench trial, defendant was convicted and sentenced to serve 20 to 30 years with the Illinois Department of Corrections.

Defendant appeals from the judgment and sentence, presenting the following issues for review: (1) whether the trial court erred in putting the burden of proof on the defendant to establish that he did not waive his privilege against self-incrimination under the fifth amendment to the Federal Constitution; (2) whether the evidence established a waiver of the defendant's fifth amendment rights; (3) whether the court erred in not suppressing an alleged statement made by the defendant, where the defendant's attorney expressly prohibited police interrogation without the attorney's presence or notification; (4) whether the defendant was proved guilty beyond a reasonable doubt; and (5) whether the sentence should be reduced. We affirm.

Decedent's father, Stanley Garrison, testified that he saw his son, Patrick, on February 23, 1976 at 7 p. m., alive and well. The witness stated that on the following day he identified his dead son's body at the coroner's office. At trial, it was stipulated that Patrick Garrison died as a result of fractures of the skull, caused by a blunt instrument. Death occurred about 7:30 p. m. on February 24, 1976.

Andrew Dobis, a bartender at Bambi's Restaurant and Lounge, located at 2809 74th Avenue, Elmwood Park, testified he worked at the bar the night of February 23, 1976. Cozzi, Daniel Duarte, and Ronald Deland were at the lounge for 10 minutes, leaving shortly after 10 p. m.

Thomas Capotosto testified that on February 23, 1976, at approximately 11 p. m., while driving with his cousin passed Bambi's, he saw an automobile stopped in the middle of the street; its motor was running, its lights were on, broken glass was on the street in front of it, the windows were knocked out, and a person was slumped over in the front seat, unconscious, but still breathing. The witness stated he instructed his cousin to call for an ambulance.

Ronald Deland testified that he was at Bambi's with Dan Consentino and Carol Romanelli around 11 o'clock on the night in question. He was not sure whether Jack Cozzi was present. He heard a noise outside and asked Cosentino whether he wanted to leave. Cosentino indicated he did and then noticed his money was not on the bar. Deland stated he questioned Duarte regarding the money, but Duarte denied taking it. The witness further stated that while he was putting on his jacket a short time later, he looked through the window of the lounge and noticed someone who resembled Duarte striking the window of a car.

Patrick Elliot, the eyewitness, testified that he lived across the street from Bambi's. At 11:07 on the evening in question while preparing for bed, he heard tires "squealing." Looking through his bedroom window, he observed two people walking toward a car and carrying baseball bats. A third person came from the direction of the lounge and walked away from the back of the car. According to the witness, defendant Cozzi struck the bat on the hood of the car with a sharp blow and on the top of the windshield. He hit the windshield again, shattering it; then, he swung the bat at the door on the driver's side and struck another blow through the car window on the driver's side. The witness identified co-defendant Duarte as the person who put his right hand on the hood and catapulted his body over the front of the car. Further testifying, the witness stated that when Duarte reached the passenger's side, he opened the door and crawled into the front seat, staying there for 10 to 15 seconds before coming out. Elliot stated he could not see inside the car, and the entire occurrence took approximately 2 minutes.

When the police arrived, Elliot gave physical descriptions of the men. He described Duarte as being dressed in a dark coat and black Levi's, weighing 150 pounds, and 5 feet 10 inches in height. Duarte is, in fact 5 feet 4 inches. Elliot said defendant was 5 feet 11 inches in height, weighing 165 pounds, with light brown hair and a light-colored moustache. [93 Ill.App.3d 97] At 7 a. m. on February 24, Elliot went to the Elmwood police station where he viewed a lineup and identified defendant Cozzi. On February 25 at 7 p. m., Elliot viewed photographs at the police station and identified co-defendant Duarte.

Sergeant James Caliendo testified that shortly after 11 p. m. on February 23, he responded to a call to go to 2809 74th Avenue in Elmwood Park. At the scene, he observed a vehicle in the middle of the street. There was broken glass in the car and a large amount of blood. The injured person had been taken to the hospital. Officer Caliendo removed a bat from the back seat of the car; additionally, a blond bat was found in the gangway adjacent to Bambi's Lounge and the Texaco Service Station. The officer stated that after further investigation, he was directed to defendant's home by Dominick Marzovillo. Defendant was arrested and taken to the Elmwood Park police station at 6:30 a. m. on February 24. The witness stated that defendant was advised of his constitutional rights and signed a written acknowledgment that he had been notified of those rights.

Attorney Bernard Mann's testimony revealed that he went to the police station to speak with defendant and instructed defendant not to make any statements without the attorney being present. Leaving his card with a police officer, Mann stated he represented defendant and that no one was to talk to defendant without his being present.

In further testimony, Officer Caliendo stated that on February 24 at 9 p. m., while on follow-up investigation, he was informed that defendant wished to speak with him. The officer advised defendant of his rights. Defendant stated he and Duarte witnessed an altercation in front of Bambi's Lounge. He and Duarte struck the car with the light-colored baseball bat. Defendant asserted that he "was not going to take a murder rap alone." The witness stated he further advised defendant of his rights and suggested the defendant speak to his attorney and set up an official meeting with the State's Attorney.

After all of the evidence was presented, the court heard arguments on the motion to suppress defendant's statement to Officer Caliendo. Defendant argued that no statement should have been taken without his attorney being present. The trial judge denied defendant's motion. Defendant was found guilty of murder and sentenced from 20 to 30 years imprisonment.

Defendant contends the trial judge erred in ruling that the defense failed to meet its burden to suppress his statement to Officer Caliendo. Defendant asserts that it was the prosecution's burden to prove defendant's voluntary relinquishment of his fifth amendment privilege, and that his statement was taken in a legally proper manner outside the presence of defendant's counsel.

Defendant's allegation that the trial court treated him as the party having the burden of proof derives from the following statement made by the trial judge:

"Before I rule on your motion your motion suggests the defendant was not admonished under Miranda.

Now, I will say you made no showing that was not done.

Also, that any proper waiver of rights under Miranda were not made voluntarily, knowingly, and intelligently.

You made no showing that occurred, and that all confessions, or statements, or admissions of the defendant were illicited (by) threat or coercion and that it was involuntary.

You made no showing on that, and for that reason your motion will be denied."

When a motion is made to suppress a confession on ground that it is not voluntary, the burdens of going forward with evidence and of proving voluntariness is on the State, but the dual burdens do not have to be met simultaneously. Where the State makes prima facie showing that a confession was voluntary, the burden of producing evidence to show that confession was involuntary shifts to the defense, and shifts back to the State only when defendant has produced such evidence. (People v. West (1975), 25 Ill.App.3d 827, 829, 322 N.E.2d 587, 588-89.) The State's burden of proof is proof by a preponderance of the evidence, and not proof beyond a reasonable doubt. (People v. Beamer (1978), 59 Ill.App.3d 855, 857, 17...