People v. Muzard

• Decision Date: 05 February 1991
• Docket Number: No. 1-88-1234,1-88-1234
• Citation: 210 Ill.App.3d 200,569 N.E.2d 26
• Parties: , 155 Ill.Dec. 26 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig MUZARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 26

569 N.E.2d 26

210 Ill.App.3d 200, 155 Ill.Dec. 26

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig MUZARD, Defendant-Appellant.

No. 1-88-1234.

Appellate Court of Illinois,

First District, Second Division.

Feb. 5, 1991.

Rehearing Denied March 27, 1991.

Genson, Steinback & Gillespie, Chicago (Edward M. Genson and Geena D. Cohen, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty., County of Cook, Chicago (Renee Goldfarb, Paul Gliatta and John deGrasse, of counsel), for plaintiff-appellee.

Justice DiVITO delivered the opinion of the court:

A jury found defendant Craig Muzard guilty of murder (Ill.Rev.Stat.1985, ch. 38, par. 9-1(a)(1), (2)), and he was sentenced to 20 years in the Illinois Department of Corrections. On appeal, defendant contends that his conviction must be reversed because (1) the State violated the trial court's in limine order, engaged in conduct designed to prejudice defendant and his counsel, and misled the jury in closing arguments; (2) conversations protected by marital privilege were improperly admitted into evidence against him; and (3) the State failed to prove that he was guilty of murder beyond a reasonable doubt.

Evidence at trial established that in February 1986, defendant and his wife, Sandra Muzard, had been married 10 years and were the parents of two daughters, ages eight and four. Defendant was employed as an engineer for WLS Radio.

In December 1985, Brian Tosch was a carpenter who was hired by defendant to panel the hot tub room which had been recently added to the Muzard residence. Since Tosch resided in Wisconsin, defendant invited him to live in the Muzard home until he completed the job. During the 10 to 12 days of his stay, or shortly thereafter, Tosch and Sandra began an intimate sexual relationship. Suspecting that relationship, defendant ordered Tosch to leave his house just before the panelling work was completed.

On February 19, 1986, Sandra received two phone calls from Tosch. On three prior occasions before that date, she had met Tosch to have sexual relations with him. Unbeknownst to Sandra and Tosch, defendant had placed a device which was capable of starting a tape recorder and recording both sides of a conversation whenever a telephone was picked up anywhere in the house. During their phone conversations, Tosch and Sandra talked about some of their prior sexual activity and Tosch encouraged Sandra to meet him that night at a motel. When Sandra expressed reluctance to do so, Tosch said that if she did not meet him, he would begin shooting at cars on Interstate 90 and, if they were lucky, defendant would be in one of the cars and they could take his insurance money and the children and move into his house in Wisconsin.

Defendant listened to the tape recording of these conversations after Sandra had gone out on the evening of February 19. He immediately woke up his two daughters and drove with them to the motel identified on the tape. In the parking lot he saw his wife's car. He learned the room in which Tosch was registered from the desk clerk, and went to the room with both of his daughters. When he was admitted by Tosch, Sandra, who had been alerted by the clerk, was not there. When he went to the window, he saw that Sandra's car was no longer in the parking lot. Defendant took his daughters to the home of Joseph Hecker, left them there, and returned to the motel with Hecker. They knocked on Tosch's door, but he was gone. Tosch had gone to meet Sandra at another motel, where they stayed the night together.

On the morning of the next day, February 20, 1986, before Sandra returned home, defendant talked to Christopher Bates, a neighbor. According to Bates, defendant said that his wife was having an affair with another man. Defendant asked Bates if he would kill the man or knew of someone who would do so. Defendant's version of that conversation was that Bates initiated the topic of having the man killed and that Bates knew someone who would do the job. Defendant denied pursuing the matter.

Later on February 20, according to defendant, he contacted Tosch and arranged a meeting at a restaurant to try to resolve matters. Defendant took a .22 caliber pistol with him. In the restaurant, according to defendant, Tosch put his keys and a knife on the table, told defendant that he had to let Sandra go, told him that Sandra enjoyed having sex with him more than with defendant, and told him of having sex with Sandra the night before and that very morning. After that meeting, defendant contacted Linda Brown, a WLS psychologist who had been counseling him. She referred him to Dr. Irving Tracer, a psychiatrist, who telephonically prescribed sleeping pills and arranged an appointment for noon the next day.

On February 21, 1986, defendant saw Dr. Tracer who recommended that defendant admit himself into Forest Psychiatric Hospital. Because the next day was his wedding anniversary, defendant said he decided to postpone his admission.

According to defendant, he received several telephone calls from Tosch requesting a meeting that day. Though defendant said he declined to meet with Tosch, he called Roy Tosch, Tosch's father, and asked for Tosch. Defendant informed Roy Tosch that his son was having an affair with his wife and sought his help.

Defendant stated that Tosch later contacted him by phone and suggested that they meet in a forest preserve. Because he feared Tosch, defendant suggested that they meet in a public place. A 7-Eleven store about a half mile from defendant's home was selected. Defendant put a loaded .22 caliber handgun in his right coat pocket and a loaded 9 millimeter handgun in the seat behind him. He then drove in his Cherokee Jeep to the 7-Eleven, met Tosch, drove across the street with Tosch following so that Tosch could leave his car in a more public parking lot, and then began driving with Tosch in the passenger seat of his car. Defendant said that he purposely placed his jacket on the console of his vehicle so that Tosch would see the butt of the gun protruding.

According to defendant, Tosch informed defendant that he was in love with Sandra and defendant cried and pleaded with Tosch to leave his family alone. Defendant then informed Tosch that he had a tape recording of the phone conversations he had with Sandra. Tosch said that Sandra thought he was more of a man than defendant and taunted defendant with sexual experiences he had with her. Tosch told defendant that he would have to get used to his children calling Tosch "dad" because they were going to leave defendant.

Defendant then informed Tosch that he had spoken with his father and he threatened to play the tape for Tosch's father. According to defendant, Tosch responded by shouting expletives and by hitting defendant in the right shoulder. As the two men "started pushing back and forth", defendant drove off the road. Both reached for the .22 caliber gun at the same time. Defendant had his right hand on the gun and Tosch had his hand on top of defendant's. As they struggled, "(t)he gun fired." While defendant was watching the road and applying the brake, "it fired two more times." Defendant did not know if those shots hit Tosch, but he thought the gun was touching Tosch. They continued to struggle. The gun then jammed; it would not fire anymore; and defendant released it. When Tosch grabbed for the gun, defendant reached behind him for the other gun. Tosch then lurched toward defendant; when Tosch was on top of him, defendant "fired a couple of shots down at him" while the gun was touching Tosch. Tosch then "backed up toward the door" and defendant continued firing. Tosch then slumped over the seat and the console. By this time, the car was stopped in the middle of the road. Defendant felt Tosch's body for a pulse, but found none.

Sometime after 10 p.m., defendant then went to the home of his half brother, Mike Richardson. He entered the house and called, but no one responded. In the house, he attempted to "unjam" the gun, and it fired. He then began to leave. His sister-in-law, Ellen Richardson, had been awakened by defendant's car in the driveway and heard the gunshot, but did not know at that time what it was. She left her bedroom and talked to defendant, who left shortly thereafter. After Ellen Richardson went back to bed, defendant returned. This time Ellen saw that his hands were covered with blood. Defendant told her that he had killed Tosch and gave her both guns. Defendant said that he killed Tosch after Tosch had tried to shoot him with a gun that jammed. He stated that he had thrown Tosch's gun into a field. Defendant asked her to drive him to two places: to a field to look for the gun and to Tosch's car so that he could move it. She refused both requests. Ellen made numerous phone calls in an unsuccessful attempt to locate her husband. While awaiting her husband's return, she summoned Gordon Muzard, defendant's brother. Defendant rejected both Gordon's and Ellen's requests to call the police. Gordon left after a short period because he was so upset. As dawn approached, defendant put his car in the garage so that no one would see it.

At about 5:30 a.m., Mike Richardson came home. Defendant's requests for help in cleaning the car or burning it were rejected by Richardson. Defendant then took Tosch's body from the front of the car and placed it in the back. Later that morning, defendant drove to Dan Cordingley's house with Tosch's body in the back of his car. Ellen Richardson had called the police and told them of defendant's destination; he was arrested en route. Later, defendant made a statement to police, at first stating that Tosch had pulled his own gun and then admitting that he had lied and that Tosch had no gun. Police observed no marks or bruises on defendant.

Joseph Hecker, Scott Longueil and Dan Cordingley each testified that shortly after he was arrested, defendant requested that they plant a gun in a...