People v. Morando

• Decision Date: 29 April 1988
• Docket Number: No. 86-0065,86-0065
• Citation: 120 Ill.Dec. 150,523 N.E.2d 1061,169 Ill.App.3d 716
• Parties: , 120 Ill.Dec. 150 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark Anthony MORANDO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1061

523 N.E.2d 1061 169 Ill.App.3d 716, 120 Ill.Dec. 150 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Mark Anthony MORANDO, Defendant-Appellant. No. 86-0065. Appellate Court of Illinois,
First District, Second Division. April 29, 1988.

Page 1064

[120 Ill.Dec. 153] [169 Ill.App.3d 718] Paul P. Biebel, Jr., Public Defender of Cook County Chicago (Kendall Hill, Asst. Public Defender, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Kenneth T. McCurry, James E. Fitzgerald, Charles E. Antonietti, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice STAMOS delivered the opinion of the court:

Defendant appeals from his conviction at a capital jury trial and sentence by the trial judge to natural-life imprisonment without parole for the murder and armed robbery of a 57-year-old woman.

The issues on appeal are:

(1) Whether the trial court properly refused a defense request to recall a prosecution witness for cross-examination as to bias, interest, or motive to testify.

(2) Whether the State failed to establish the corpus delicti necessary to prove defendant guilty of armed robbery beyond a reasonable doubt.

(3) Whether the trial court properly instructed the jury regarding circumstantial evidence.

(4) Whether defendant's sentence was excessive and whether the trial court properly considered the question of lack of remorse in sentencing defendant.

(5) Whether the trial court properly permitted cross-examination of defendant as to his prior stealing.

(6) Whether the trial court properly permitted photographs of the victim, which had been admitted into evidence, to be taken to the jury room.

(7) Whether the State's closing argument contained improper remarks that had a material effect on the jury's verdict.

For the reasons that follow, we affirm.

[169 Ill.App.3d 719] FACTS

Irene Dominick, the victim in this case, was shot once and killed at the rear entrance of her house at 5300 South Merrimac Avenue in Chicago between 7:30 and 8 p.m. on May 10, 1984. At trial, which began on October 28, 1985, her son testified that she had been wearing her rectangular, four-carat, yellowish diamond ring earlier on the day of her slaying, but it was not found on her body.

According to three prosecution witnesses, including one who knew neither defendant nor the other witnesses, defendant was seen crossing the street in the direction of the victim's house prior to the killing. In addition, one of defendant's acquaintances and one 11-year-old prosecution witness who was not acquainted with the other witnesses testified that they saw defendant running from the direction of the victim's house carrying a handgun just after the killing, although the juvenile witness had some initial difficulty in identifying defendant in the courtroom, where an exhibit blocked the view of defendant.

Two friends of defendant testified that at about the time of the killing he had hurriedly entered their red Oldsmobile car while carrying a pistol and a large, rectangular ring, told them to drive away quickly, and informed them that he had had to shoot the lady on the corner because she would not give him her ring. They testified that he had left the car a short while earlier with the announced intent of collecting his sunglasses from the house of one of these friends; later, a pair of sunglasses identified as defendant's was recovered from that house. One of these friends testified that some five years earlier, defendant had expressed a desire to have the victim's ring.

Another witness from Tampa, Florida, testified to defendant's having made statements about contemplating stealing and about wishing to sell a ring that he claimed

Page 1065

[120 Ill.Dec. 154] to have received from his grandmother. This witness and another from Tampa also testified that, soon after the killing, defendant produced a large, rectangular ring in Tampa and offered to sell it. Other witnesses testified that defendant had threatened one of them with an automatic pistol on the afternoon of the killing and that he had had the gun throughout the day and acted nervous, impatient, and intent on some mission.

The two friends of defendant testified that, at his request after the killing, they drove him to an address in Lyons Township, where they left him.

One witness testified that in the early afternoon of the killing, he received a telephone call from defendant, who claimed that he had just been at the witness's house but no one was there; the witness testified that defendant then appeared two minutes later. The witness [169 Ill.App.3d 720] also stated that he, his stepfather, and another man were sitting in the living room with the front door open at the time defendant claimed to have found no one at home. Telephone company records showed that a call from the victim's house to the witness's house had been placed at 1:42 p.m. that afternoon.

When defendant took the stand, he testified that he was 19 years old at the time of the killing, that he had lived in Tampa for four months, and that he had returned to Chicago a few days before the killing because his friend Frank Jones (one of the witnesses against him) had asked his help in selling a ring. Defendant testified that when he first arrived at Jones's house, Jones said he did not have the ring there but that they could discuss it later. Defendant acknowledged having called Jones's house early on the afternoon of the killing but claimed that he had called from a doughnut shop a considerable distance away, then traveled to the Jones house, where he talked with Jones, his stepfather, and the same friend that had been identified earlier.

Defendant denied having had or seen a gun that day, and he denied threatening anyone with a gun. According to defendant, Jones and Jones's girlfriend had dropped him off at his house between 6 and 7 p.m. and had returned to his house about an hour later but said that they could not take him back to Jones's house because of trouble there. Defendant said that as they drove, Jones produced a ring and gave it to him to sell. Defendant testified that they then went to a house in Lyons, found no one at home, and then drove to a motel in Cicero, where he was dropped off and registered under a false name because of outstanding traffic warrants in Cicero.

Defendant testified further to having called his father from the motel and having been informed that the police were looking for him. He said he then called the police at the number his father gave him but that the policeman who answered told him, "You little bastard, we are going to kill you if we catch you." Defendant said that he then left for Florida, where he sold the ring. He said he later decided to return to Chicago to clear his name and turned himself in to police in the company of Russ Ewing, a television reporter.

Defendant testified on cross-examination that, though such statements were contained in a written document prepared by an assistant State's Attorney and signed by him, he had never told the assistant State's Attorney that he owned a certain pair of sunglasses or that he had ever made a telephone call from the victim's house on the day of the killing. He said that the assistant State's Attorney had tricked him into signing such statements.

[169 Ill.App.3d 721] A defense witness also testified to having seen two young men lurking behind the victim's garage at about 7:15 p.m. on the evening of the killing and that they then entered a red car that was probably a Pontiac and drove away. The witness testified that 20 minutes later he was approached to help the victim, whom he found lying in her back yard trying to get up.

Defendant was convicted by the jury on charges of murder and armed robbery, and at a sentencing hearing the judge found him eligible for the death penalty but sentenced him to natural-life imprisonment without parole.

Page 1066

[120 Ill.Dec. 155] OPINION

I. Recalling Witness

Defendant contends that the trial court committed reversible error by refusing to allow his counsel to recall a prosecution witness, Frank Jones, for cross-examination as to bias, interest, or motive to testify that might be based on pendency of an alleged aggravated-battery police investigation involving him. Defendant contends that his counsel were unaware of the allegedly pending investigation until after the witness had left the stand.

A defendant may impeach a witness with prior arrests or convictions to show that the witness's testimony might be influenced by interest, bias, or a motive to testify falsely. (People v. Mason (1963), 28 Ill.2d 396, 400-01, 192 N.E.2d 835, 837.) Such cross-examination is a matter of right (People v. Triplett (1985), 108 Ill.2d 463, 475, 92 Ill.Dec. 454, 460, 485 N.E.2d 9, 15), subject to the trial court's sound discretion to prevent repetitive or unduly harassing questioning ( Triplett, 108 Ill.2d at 475, 92 Ill.Dec. at 460, 485, N.E.2d at 15; People v. Reese (1984), 121 Ill.App.3d 977, 987, 77 Ill.Dec. 390, 397, 460 N.E.2d 446, 453), and impeachment may include charges that have been stricken but that still may be reinstated ( Triplett, 108 Ill.2d at 482, 92 Ill.Dec. at 463, 485 N.E.2d at 18). A jury is entitled to know the nature of such charges in order to have complete information that will better enable it to resolve the bias question. ( Reese, 121 Ill.App.3d at 988, 77 Ill.Dec. at 397, 460 N.E.2d at 453.) However, reversal of a trial court's decision as to such impeachment cross-examination, including a decision on requested recall for cross-examination after close of the adversary's case, is warranted only where there is an abuse of discretion resulting in manifest prejudice to a defendant. People v. Smith (1986), 149 Ill.App.3d 145, 152, 102 Ill.Dec. 712, 717, 500 N.E.2d 605, 610; Reese, 121 Ill.App.3d at 988, 77 Ill.Dec. at 397, 460 N.E.2d at 453.

In the present case, defendant contends that his trial counsel were...