People v. Lonzo

• Decision Date: 19 April 1977
• Docket Number: Nos. 62187 and 76-137,s. 62187 and 76-137
• Citation: 47 Ill.App.3d 939,365 N.E.2d 528,8 Ill.Dec. 290
• Parties: , 8 Ill.Dec. 290 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Barney LONZO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 528

365 N.E.2d 528

47 Ill.App.3d 939, 8 Ill.Dec. 290

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Barney LONZO, Defendant-Appellant.

Nos. 62187 and 76-137.

Appellate Court of Illinois, First District, Second Division.

April 19, 1977.

David C. Thomas and Clark, Thomas & Piers, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Cook County, Chicago (Laurence J. Bolon and Iris E. Sholder, Asst. State's Attys., of counsel), for plaintiff-appellee.

PERLIN, Justice:

Defendant, Barney Lonzo, appeals from a conviction of attempt murder and a sentence of 15 to 60 years imprisonment. The jury returned verdicts of guilty of attempt murder and aggravated battery, and judgments were entered on the attempt murder verdicts. On appeal defendant raises the following contentions: (1) he was improperly denied his statutory right to a speedy trial; (2) the trial court erred in excluding scientific evidence; (3) the trial court erred in allowing an Assistant State's Attorney to testify that defendant was guilty of the crime charged; (4) the trial court erred in admitting testimony that defendant committed other crimes; (5) the trial court improperly delayed a ruling on the use of an involuntary statement; (6) defendant was neither proved guilty as principal beyond a reasonable doubt nor was he accountable for the crimes of another; and (7) the sentence of 15 to 60 years was excessive.

We affirm.

In the early morning hours of Sunday, April 8, 1973, two Chicago policemen, Ernest Kanzler and John Ferrell, were shot and seriously wounded at an apartment building in Chicago, Illinois.

Curtis Bolton, the attendant at a Clark Oil gasoline station, called the police at 7 a. m. on the Sunday in question when he saw two men "lurking" behind the station. As the police arrived defendant and Daniel Underwood entered the hallway of a building located a short distance from the gas station. Defendant argues that Underwood compelled him at gunpoint to ascend the stairs while Underwood unscrewed a light bulb at the first landing. Two policemen, Kanzler and Albert Drink, then entered the building and told the men to come down. When Kanzler saw one of the men "hanging" over the bannister and pointing a gun at his head, he turned to escape injury. A shot was fired and Kanzler was hit in the leg. Drink then assisted Kanzler and arranged for further police assistance. At trial both Kanzler and Drink identified defendant as the assailant.

Subsequently defendant and Underwood fled through the apartment building. Fifteen-year-old Eugene Melton testified that defendant and Underwood came running through his family's apartment on the morning of April 8, 1973. Melton declined Underwood's request that he take a gun from Underwood.

Three policemen, Ferrell, James Cool and Guido Colonna, pursued a "huge male Negro" wearing a green jacket and carrying a large automatic pistol as he came through the alley and the gangway. Upon arrival at the back of the building, Ferrell was shot in the face from a distance of 20 to 25 feet. At trial Ferrell identified defendant as the man who shot him.

Bertha Young and her daughter, Annette, who also resided in the apartment building, testified that they admitted defendant and Underwood to their apartment when "they said it was police." Underwood gave Annette a gun and two metal pieces which at his command she hid in a closet.

The jury returned verdicts of guilty of aggravated battery and attempt murder, and judgment was only entered on the attempt murder. Defendant was subsequently sentenced to 15 to 60 years imprisonment.

Defendant's first contention is that the trial court erred when it denied his motion for discharge on the ground that he was not tried within 160 days from the date he demanded trial. (Ill.Rev.Stat.1973, ch. 38, par. 103-5(b).) Defendant claims that although he agreed to a continuance of a State motion from August 22, 1974, to August 28, 1974, this continuance in fact was neither sought nor caused by him and thus his motion for discharge should have been granted.

The record reveals that on June 17, 1974, the trial court ruled that certain statements of defendant were to be suppressed at trial because they were obtained as a result of the physical coercion of defendant. On August 1, 1974, the State filed a motion requesting a rehearing on the suppression ruling, which motion was set for hearing on August 22, 1974. The State alleged that an error existed in the transcript of part of the hearing on the motion to suppress. On August 22, 1974, however, while the court reporter who had prepared the transcript was in court prepared to testify, defendant failed to appear. Defense counsel apologized that the testimony could not be taken and suggested: "if the case is to be continued can we continue it for Wednesday, the 28th?" The trial court then continued the hearing on the motion to August 28, 1974.

In support of his contention that the delay on August 22 was not caused by him, defendant alludes to People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242; People v. Nunnery (1973), 54 Ill.2d 372, 297 N.E.2d 129, and People v. Shields (1974), 58 Ill.2d 202, 317 N.E.2d 529. In each case there was an analysis of the criteria for determining whether a defendant's acts in fact caused or contributed to a delay. The facts in each instance were carefully examined by the court "to prevent a 'mockery of justice' either by technical evasion of the right to speedy trial by the state, or by a discharge of a defendant by a delay in fact caused by him." Fosdick, 36 Ill.2d at 529, 224 N.E.2d at 246.

Defendant in the case at bar while on bond made his first demand for trial on July 15, 1974. Subsequently he filed his petition for discharge on January 6, 1975, 176 days from the date of his first demand for trial. During the intervening period, however, a hearing was set for August 22, 1974, because of a court reporter's typographical error. When defendant failed to appear for that hearing, defense counsel's offer to waive defendant's presence was declined by the trial court. Defense counsel then suggested August 28, 1974, as the continuance date of the case, and the court so continued the motion. No suggestion was made concerning any stipulation to the testimony of the court reporter.

We conclude that defendant has failed to overcome the onus of having caused the delay. Defense counsel himself suggested a continuance of the case rather than the motion and made no demand for trial at the time of the agreed continuance. Defendant's absence together with the actions of his attorney indicate a delay occasioned by defendant. We are thus of the opinion that the trial court properly denied defendant's motion to discharge.

Defendant further asserts that the trial court abused its discretion when it excluded scientific evidence offered to corroborate defendant's testimony that he did not fire any weapon. Defendant relies upon People v. Carbona (1st Dist. 1975), 27 Ill.App.3d 988, 327 N.E.2d 546, in stating that:

"Experiments may be received into evidence if probative of facts in issue and were conducted under substantially similar conditions and circumstances as those which surrounded the original transaction or occurrence. (State v. Atwood (1959), 250 N.C. 141, 108 S.E.2d 219; People v. Willson, 401 Ill. 68, 81 N.E.2d 485; see also Annot. (1962), 86 A.L.R.2d 611.) The admissibility of experimental evidence is a matter within the discretion of the trial court. A reversal is not warranted unless the clear abuse of discretion is demonstrated. Hardman v. Helene Curtis Industries, Inc., 48 Ill.App.2d 42, 198 N.E.2d 681." Carbona at 1003, 1004, 327 N.E.2d at 561.

Tests were conducted in the case at bar in an effort to demonstrate that defendant could not have fired the gun. The jacket worn by Underwood was found to contain more lead ions than the jacket worn by defendant. A similar gun and two jackets containing the same amount of cotton as those of Underwood and defendant were used on a gun range in a simulated reenactment of the shootings. However, these tests were performed 13 months after the occurrence with no explanation for the delay. Moreover, disputes exist concerning the type of material comprising the jackets worn at the time of the shootings and the material used in the manufacture of the control jackets. There is no indication as to what materials other than cotton constituted the remainder of the respective garments. Also the experiment was performed on a gun range while the actual shootings occurred in a stairwell and in an outdoor gangway. In the experiment the "spectator" stood six feet from the shooter, but defendant testified that he stood two to three feet from Underwood at the time of the stairwell shooting. We believe the experiments did not accurately represent conditions and circumstances which surrounded the original occurrence. The trial court properly excluded these tests.

Defendant maintains that the admission of the testimony of an Assistant State's Attorney to rehabilitate an impeached witness was reversible error. It is improper and prejudicial for the State to offer a prosecutor's testimony that he had recommended a charge of murder be placed against a defendant. (People v. Blissitt (1st Dist. 1973), 12 Ill.App.3d 551, 299 N.E.2d 562.) A defendant, however, may not complain about lines of inquiry which he has invited. People v. Carbona (1st Dist. 1975), 27 Ill.App.3d 988, 1006, 1007, 327 N.E.2d 546, 563.

Defense counsel in the instant case sought to introduce the preliminary complaint signed by Kanzler against Daniel Underwood in which Underwood was charged with shooting Kanzler. Such strategy was apparently an attempt to impeach Kanzler's testimony that defendant shot him. Assistant State's Attorney Neville, however, was allowed to explain the legal meaning of a "complaint." He testified that a complaint states the charge, not the theory of the case,...