People v. Iozzo

• Decision Date: 03 April 1990
• Docket Number: No. 2-89-0678,2-89-0678
• Citation: 195 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.
• Court: United States Appellate Court of Illinois

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, v. Vito M. IOZZO, Defendant-Appellant.

No. 2-89-0678.

Appellate Court of Illinois Second District.

April 3, 1990.

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 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- 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?

* * * * * *

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 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 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.

THE FOREPERSON: No, No.

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 FOREPERSON: Yes.

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 disagreed about the jury's request to hear the testimony of Mike Iozzo again, the defendant favoring a reading of the testimony and the prosecutor opposing it. The trial court, after cautioning the jury not to place undue emphasis on one witness' testimony, had Mike Iozzo's testimony read to the jury.

At approximately midnight, the jury was again brought into the courtroom. The court inquired as to the state of its deliberations:

"THE COURT: Mr. Howell, again, I would like to ask you, I understand that since the last communication, the jury again has been deliberating and has not arrived at a verdict; is that correct?

THE FOREPERSON: Yes.

THE COURT: If the Court were to ask you to continue your deliberations, do you feel that there is a reasonable probability that you might yet be able to * * * arrive at a verdict?

THE FOREPERSON: No, sir, I don't.

THE COURT: Notwithstanding, I wish to give the jury this further instruction at this time."

With the concurrence of both parties, the trial court then proceeded to give the jury the instruction discussed in People v. Prim (1972), 53 Ill.2d 62, 72-76, 289 N.E.2d 601, appropriate when the members of the jury are in disagreement.

At approximately 12:40 a.m., the jury was brought back into the courtroom a final time. The court inquired whether jury deliberations were progressing:

"THE COURT: I understand that the jury again, after the further instruction of the Court, has still not made any further progress.

I would, again, Mr. Howell, like to ask you, if the Court were to ask you to continue your deliberations.

Do you feel there is a reasonable probability that you might yet be able to arrive at a verdict?

THE FOREPERSON: No, sir.

THE COURT: Do you believe that this jury is then hopelessly deadlocked at this time?

THE FOREPERSON: Yes, sir. I feel the sides are opinionated and will not change their view.

THE COURT: I would like to ask you, again, you said earlier that the vote was nine to three. I don't want you to say which way this vote was, but I want to ask you, again,...