People v. Iozzo, 2-89-0678

CourtUnited States Appellate Court of Illinois
Writing for the CourtMcLAREN
Citation195 Ill.App.3d 1078,552 N.E.2d 1308,142 Ill.Dec. 567
Parties, 142 Ill.Dec. 567 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vito M. IOZZO, Defendant-Appellant.
Docket NumberNo. 2-89-0678,2-89-0678
Decision Date03 April 1990

Page 1308

552 N.E.2d 1308
195 Ill.App.3d 1078, 142 Ill.Dec. 567
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
Vito M. IOZZO, Defendant-Appellant.
No. 2-89-0678.
Appellate Court of Illinois,
Second District.
April 3, 1990.

Page 1309

[195 Ill.App.3d 1079] [142 Ill.Dec. 568] Patrick J. O'Shea, Law Offices of Patrick J. O'Shea, Lombard, for Vito M. Iozzo.

James E. Ryan, DuPage County State's Atty., Barbara A. Preiner, Supervisor of Appeals, DuPage Co. S.A.'s Office, Wheaton, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice McLAREN delivered the opinion of the court:

The defendant, Vito M. Iozzo, was charged by a complaint with the offense of theft in violation of section 16-1(a) of the Criminal Code of 1961 (Ill.Rev.Stat.1987, ch. 38, par. 16-1(a)). The cause proceeded to a jury trial, but the trial court eventually declared a mistrial when the jury could not reach a verdict. After the cause was set for retrial on the same charge, the defendant filed a motion to dismiss the charge on the basis of former jeopardy. The trial court denied this motion, and the defendant now takes an interlocutory appeal from that order pursuant to Supreme Court Rule 604(f) (107 Ill.2d R. 604(f)). On appeal, the defendant argues that his retrial is barred by the constitutional prohibition against double jeopardy. Two issues are [195 Ill.App.3d 1080] presented on appeal: (1) whether the evidence presented at the first trial was sufficient to sustain a conviction against the defendant; and (2) whether the trial court abused its discretion when it declared a mistrial in the first trial.

The charge against the defendant arises from events which occurred on the afternoon of Sunday, January 8, 1989. The defendant admits that he was on the premises of the Packey-Webb automobile dealership on this date and that he removed a custom wheel cover from the back of one of Packey-Webb's vans. At trial, the defendant claimed that, although he took the wheel cover when the dealership was not open, he did so in the belief that his cousin, Michael Iozzo, had arranged for the purchase of such an item from Packey-Webb.

Testifying at trial on behalf of the defendant, Michael Iozzo stated that he was the general sales manager for Ogden Avenue Motors. Iozzo testified that Ogden Avenue Motors conducted approximately $500,000 worth of business each year with Packey-

Page 1310

[142 Ill.Dec. 569] Webb and that this commercial relationship continued after the incident on January 8, 1989. Iozzo stated that his cousin, the defendant, called him a few days after the January 1, 1989, holiday to ask if Iozzo could help him obtain a spare tire cover for the defendant's jeep. Iozzo said that he could order such a cover from Packey-Webb, with which he frequently does business, in time for the defendant's planned trip to New Orleans on Monday, January 9. Iozzo stated that he never told the defendant that he should go directly to Packey-Webb's lot and remove a wheel cover from one of the vehicles there. No order was ever placed with Packey-Webb. According to Iozzo, he mistakenly forgot to order a wheel cover from Packey-Webb because of his preoccupation with his mother's terminal illness at about that time.

After the close of the evidence, the jury listened to the prosecutor's closing argument. During his discussion of what the State needed to prove to sustain a conviction, the prosecutor stated:

"MR. CRONIN [Assistant State's Attorney]: the fourth issue is that defendant intended to permanently deprive the owner of the property. Now, ladies and gentlemen, in order to prove that element, that he intended to permanently deprive the owner of the property, to prove that element absolutely, the People would have to open up [the defendant's] mind and get some sort of a printout and show it to you.

Now, ladies and gentlemen, obviously, we cannot do that, but what we can do is urge you to look at his actions and what did his action tell you about his intent?

* * * * * *

[195 Ill.App.3d 1081] I'm asking you to look at his actions and use your common sense."

The jury retired to deliberate at approximately 4 p.m. on Friday, May 5, 1989. Immediately after the jury retired, defense counsel made a motion for a directed verdict based on the prosecutor's alleged "admission" during closing argument that the State could not prove the necessary element of intent. The State denied making such an admission. In response to the motion, the trial court stated:

"THE COURT: I think, as I understand, as I understood the comments, he was speaking graphically. You cannot physically see into a person's head, comparing a head or brain to a computer which would give a printout.

It is my understanding of the comment that he was saying that he cannot physically do that. I do not believe he was saying that he could not prove the requisite elements of the case."

The court denied the motion for a directed verdict.

At approximately 7:10 p.m., the trial court noted for the record that the jury had made two written inquiries approximately one hour earlier. The handwritten note from the jury read, "[p]lease define the term 'reasonable' doubt" and asked, "[i]s it possible to review Mike Iozzo's testimony?" As to the first question, the State and the defendant agreed that the proper response would be for the trial court to refer the jury to its original instructions. On the request to review Michael Iozzo's testimony, defense counsel indicated that, in his view, the jury was entitled to hear the testimony again. The trial court, however, instructed the jury that it must decide the case based on the evidence it had already heard.

Later, the jury issued a second written inquiry stating, "[i]s it possible to review the transcript (except for the opening and closing statements)?" The trial court's answer to the question, which was given to the jury about one-half hour later, stated "[a]gain, you must decide the case based upon the instructions you have received and the evidence you have heard."

At approximately 11 p.m., the trial court brought the jury back into the courtroom. The trial court stated that, although the jury had been deliberating for "several hours," the jury indicated that it was making no progress. The court inquired of the foreman of the jury:

"THE COURT: Mr. Howell, I would like to ask you now, on behalf of the jury, if the Court were to ask you to

Page 1311

[142 Ill.Dec. 570] continue your deliberations, do you believe that there is a reasonable probability that you might yet be able to arrive at a verdict?

THE FOREPERSON: Without further guidance, no. We [195 Ill.App.3d 1082] have been--After the first half hour, there were nine people that voted one way and three people that voted another way.

THE COURT: I don't want you to tell me which way anyone has voted.


Since that point in time there has not been any change, so approximately six hours without any change.

THE COURT: All right. Now, earlier some questions were sent out and responses were made back to the jury. I want to ask you, is there anything further that the Court can do in assisting the jury in arriving at its verdict, such as any other jury instructions or reading of any testimony by the court reporter?


THE COURT: If you cannot answer that question as the foreman, I will allow the jury to go back and make a preliminary vote on that, if you want to decide that amongst yourself."

The jury then retired to consider the trial court's question. At approximately 11:20 p.m., the jury submitted a written inquiry stating that the jury "would like to hear Mike Iozzo's testamony [sic ]" and asking, "if there is not enough testamony [sic ] to prove or disprove one of the propositions does this mean not guilty?"

Both the prosecutor and defense counsel agreed with the trial court's determination that, with regard to the latter inquiry pertaining to the standard of proof, the jury should be referred to its original instructions. The parties...

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7 cases
  • People v. McLaurin, 1-05-1149.
    • United States
    • United States Appellate Court of Illinois
    • 15 Mayo 2008
    ...regarding the numerical division of the jurors, it is not error to order the jury to continue its deliberations. People v. Iozzo, 195 Ill.App.3d 1078, 1086, 142 Ill. Dec. 567, 552 N.E.2d 1308 (1990). Here, the judge's written response to the jury's second note was to continue deliberating w......
  • Palanti v. Dillon Enterprises, Ltd., 1-97-4531
    • United States
    • United States Appellate Court of Illinois
    • 16 Febrero 1999
    ...the numerical division of the jurors. Watkins, 293 Ill.App.3d at 507, 228 Ill.Dec. 100, 688 N.E.2d at 805-6, citing People v. Iozzo, 195 Ill.App.3d 1078, 1086, 142 Ill.Dec. 567, 552 N.E.2d 1308, 1314 (1990), and People v. Farella, 79 Ill.App.3d 440, 445, 34 Ill.Dec. Page 702 [236 Ill.Dec. 5......
  • People v. Hobbs, 4-97-1121
    • United States
    • United States Appellate Court of Illinois
    • 2 Diciembre 1998
    ...jurisdiction to review contentions concerning former jeopardy but not to address due process or other arguments); People v. Iozzo, 195 Ill.App.3d 1078, 1084, 142 Ill.Dec. 567, 552 N.E.2d 1308, 1312 (1990) (finding jurisdiction over appeal); People v. Gathings, 128 Ill.App.3d 475, 479, 83 Il......
  • People v. Watkins, s. 1-95-3829
    • United States
    • United States Appellate Court of Illinois
    • 8 Diciembre 1997
    ...division of the jurors, an order instructing the jury to continue its deliberations does not constitute error. People v. Iozzo, 195 Ill.App.3d 1078, 1086, 142 Ill.Dec. 567, 573, 552 N.E.2d 1308, 1314 (1990); People v. Farella, 79 Ill.App.3d 440, 445, 34 Ill.Dec. 792, 796, 398 N.E.2d 615, 61......
  • Request a trial to view additional results

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