People v. Gacho

• Decision Date: 11 February 1988
• Docket Number: No. 61294,61294
• Citation: 119 Ill.Dec. 287,522 N.E.2d 1146,122 Ill.2d 221
• Court: Illinois Supreme Court
• Parties: , 119 Ill.Dec. 287 The PEOPLE of the State of Illinois, Appellee, v. Robert GACHO, Appellant.

Page 1146

522 N.E.2d 1146

122 Ill.2d 221, 119 Ill.Dec. 287

The PEOPLE of the State of Illinois, Appellee, v. Robert GACHO, Appellant.

No. 61294.

Supreme Court of Illinois.

Feb. 11, 1988.

Rehearing Denied May 31, 1988.

Neil F. Hartigan, Atty. Gen., Mark L. Rotert, Asst. Atty. Gen., Chicago, for appellee; Richard M. Daley, State's Atty., Chicago, Thomas V. Gainer, Jr., Asst. State's Atty., Renee G. Goldfarb, Sp. Asst. State's Atty., of counsel.

Paul P. Biebel, Jr., Public Defender of Cook County, Chicago, for appellant James H. Reddy, Asst. Public Defender, of counsel.

Justice WARD delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, Robert Gacho, was convicted of the murder, aggravated kidnapping and armed robbery of Aldo Fratto and Tuillio Infelise. (Ill.Rev.Stat.1981, ch. 38, pars. 9-1(a)(1), 10-2(a)(3), 18-2(a).) The trial court had granted a pretrial motion to sever the defendant's trial from that of his codefendants, Joseph Sorrentino and Dino Titone. After the jury found the defendant guilty of the above charges, he elected to have the same jury sit in judgment at the death penalty hearing. The jury, finding no mitigating factors sufficient to preclude imposition of the death penalty, imposed the sentence of death. As this is an appeal of a death penalty sentence, this cause comes before this court on direct appeal. Ill. Const.1970, art. VI, § 4(b); 107 Ill.2d R. 603.

Katherine De Wulf, the defendant's girlfriend, was the principal witness for the State. She testified that Gacho called her between 10:30 and 11 p.m. on December 11, 1982, and told her that she should drive to his house because he needed her to drive "a back-up car." He said he would call her later, which he did about 1:45 a.m., December 12, directing her to wait five minutes and then to drive to his house. She drove to Gacho's house and parked in the alley behind the residence and waited. She said she saw Joe Sorrentino come out the back door of Gacho's house with Infelise and Fratto walking behind him. She recognized Infelise and Fratto because she had previously seen them at Gacho's auto body shop. She testified that Fratto and Infelise had their hands tied behind their backs as they walked from Gacho's house with Sorrentino. Fratto and Infelise were seated in the back seat of a blue car, which Sorrentino then drove with Titone seated in the front passenger's side. Gacho came from the house and came to De Wulf's car, seating himself on the front passenger side. De Wulf testified that she asked Gacho what was going on, and that he responded, "they would have to take them [victims] somewhere. He didn't know where, but they were going to have to waste 'em." De Wulf said she believed that "waste 'em" meant to kill them.

Gacho had a gun when he entered De Wulf's car, which he asked De Wulf to put in her purse, but she said the weapon was too large to fit into her purse. De Wulf then drove her car, following the vehicle driven by Sorrentino. After proceeding about a block or two, Gacho said he wanted to drive the car, and he switched positions with De Wulf. The two automobiles headed south on the Stevenson Expressway (I-55) for about one-half hour and left the expressway at either Cass or Kingery Road. The cars then traveled down a gravel or dirt road for about 10 minutes, and Gacho stopped the car. Gacho, according to De Wulf's testimony, told her they were waiting to hear gunshots, and she said she heard "several" shots within a few minutes. After hearing the shots, Titone and Sorrentino came to De Wulf's car and Titone reported that they had shot Fratto and Infelise and that they were dead. She said Titone also said that Fratto and Infelise had begged them not to kill them, but that Titone and Sorrentino had "just laughed" at the pleas. She said all four then drove back to Gacho's house and enroute the three men discussed cocaine, which Fratto and Infelise had brought to Gacho's home, but she could not recall what specifically was said.

A Du Page County forest ranger, Robert Stanton, was on patrol at about 9:15 a.m. on December 12, 1982, when he stopped by a parked automobile in the area of the Des Plaines River near Lemont Road. He heard someone pounding inside the trunk and calling for help. Stanton called the Lemont police and paramedics, who arrived shortly thereafter and opened the car's trunk. Two men, both bloodied and with their hands tied behind their backs, were inside the trunk. One man, Tullio Infelise, was alive, and the other, Aldo Fratto, was dead when the trunk was opened.

The defendant made a statement to Assistant State's Attorney John Groark while he was in custody December 12, 1982. The defendant proofread his statement, made corrections to it, and signed it. Groark read the defendant's statement into the record at trial. In his statement, the defendant said that Sorrentino, Titone, Fratto, and Infelise had come to his house on the night of the murders. He said Fratto and Infelise came to his home to sell him cocaine. Gacho further said that the two victims came to his home with "three-quarters of a kilo" of cocaine, a balance-type scale (to weigh the cocaine), and guns. He said Titone and he pulled guns on the victims. He said he had carried a .357 magnum that evening and had put it under the front seat of De Wulf's car. When the defendant and De Wulf waited in De Wulf's car at the crime scene, he first heard three shots, then heard five more shots. Sorrentino and Titone had taken between $1,500 and $2,000 from the victims, of which the defendant got $500. Gacho and his two codefendants then divided up the cocaine at his home, with Titone taking about half; the rest of it was left at his house, but he had asked Sorrentino to take it with him.

The defendant testified at trial, denying any involvement in the murders. He said that he and De Wulf had dated for approximately 1 1/2 years prior to the time of the murders. He said that he and De Wulf had broken up in October 1982, but that she continued to call him and come to see him at his auto body shop. He testified that, while he was in custody at the Burbank police station, a detective "kneed [him] in the back" near the right kidney area. He said one officer also slapped him, hit him in the back, and threatened to take his wife and children away. He said the officers kept telling him that he had shot someone. He also testified that he made a statement to Assistant State's Attorney Groark, but it was simply a reiteration of the information that the two officers had provided him concerning the crimes. The defendant further testified that he did not tell Assistant State's Attorney Groark of the police punching him. He said he signed the statement only because he was "pressured" by the police.

Much of the other testimony at trial will be discussed in reference to the numerous issues raised by the defendant concerning the guilt/innocence phase of his trial. The jury returned a general verdict of guilty on all counts. The defendant was found subject to the death penalty and at the second phase of the sentencing hearing, the State offered in aggravation evidence from the trial and a conviction on a battery charge on September 7, 1982, a misdemeanor for which he was sentenced to one-year probation. In mitigation, the defendant emphasized that he had no significant prior criminal history, that he was not present at the commission of the crimes, and that he worked two jobs to support his wife and two children. The jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trials of Gacho and Titone were conducted simultaneously, with Gacho being tried by a jury while the judge heard the evidence against Titone. Titone's death conviction was affirmed by this court in People v. Titone (1986), 115 Ill.2d 413, 105 Ill.Dec. 923, 505 N.E.2d 300. Sorrentino's sentence to life imprisonment was affirmed by the appellate court in a Rule 23 order on November 17, 1986 (107 Ill.2d R. 23), and leave to appeal to this court was denied.

The defendant first argues that the detectives investigating the murders violated his rights under the fourth amendment by arresting him in his home without a warrant and without probable cause to believe that he had committed an offense. The defendant's contention was the subject of a pretrial motion to quash his arrest, which was denied.

Officer Stanton, who had discovered the car with the victims inside the trunk about 9:15 a.m., December 12, 1982, testified that, after the trunk was opened by the police, he had asked Infelise who had done this to him and that Infelise appeared to answer "Robert Gott or Gotch." Stanton, though, said it was hard to understand what Infelise was saying because he was in pain and having difficulty breathing. In response to Stanton's question asking where the man he named was located, Infelise answered "Florida."

Officer Robert Johnstone arrived at the scene about 9:30 a.m. and testified he asked Infelise how the injuries had occurred, and Infelise responded "Robert Gotch." He also learned from Infelise that a man named Dino and another named Joe were involved in the shootings. James Houlihan, an investigator in the homicide section of the Cook County sheriff's police, testified at the suppression hearing that when he arrived about noon at the crime scene, investigators Mark Baldwin and Johnstone had already interviewed Infelise. They told Houlihan the information they had obtained about the possible assailants, including that one was referred to as Bob Gacho. Houlihan and his partner later went to Chicago to meet with investigators James Coakley and Jerry Smith at the Area Three Violent Crimes facility. Coakley told Houlihan that he had had a conversation with Infelise at the hospital emergency room and that Infelise had named Robert Gacho and two other men named Dino and Joe as those involved...