People v. Pace

• Citation: 225 Ill.App.3d 415,587 N.E.2d 1257
• Decision Date: 21 February 1992
• Docket Number: No. 2-90-0626,2-90-0626
• Parties: , 167 Ill.Dec. 642 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph PACE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1257

587 N.E.2d 1257

225 Ill.App.3d 415, 167 Ill.Dec. 642

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph PACE, Defendant-Appellant.

No. 2-90-0626.

Appellate Court of Illinois,

Second District.

Feb. 21, 1992.

[167 Ill.Dec. 645] [225 Ill.App.3d 417] George P. Lynch (argued), George Patrick Lynch, Ltd., M. Jacqueline Walther, Kielian & Walther, Chicago, for Joseph Pace.

James E. Ryan, Du Page County State's Atty., Wheaton, William L. Browers, Deputy Director, Cynthia N. Schneider (argued), State's Attys. Appellate Prosecutors, Elgin, for the People.

Presiding JUSTICE INGLIS delivered the opinion of the court:

Defendant, Joseph Pace, appeals his conviction after a jury trial for first-degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1) and armed robbery (Ill.Rev.Stat.1987, ch. 38, par. 18-2). Concurrent sentences of natural-life imprisonment for first-degree murder and 30 years' imprisonment for armed robbery were imposed. On appeal, defendant raises 10 issues. For the reasons expressed below, we reverse and remand for a new trial.

The 10 issues on appeal are whether: (1) the trial court erred in denying defendant's motion for automatic substitution of judges; (2) the trial court erred in refusing to give a tendered instruction on accomplice testimony; (3) reversible error occurred when photographs of decedent and containers of human blood were sent back to the jury; (4) defendant's statements to police should have been suppressed because the police failed to allow defendant's mother into the interview room; (5) statements of a coconspirator should have been excluded as hearsay; (6) evidence that defendant was accused of prior thefts from the theater was improperly admitted; (7) prejudicial error resulted from admitting into evidence knives found in defendant's car; (8) a venireman's comments that he could not be impartial were prejudicial; (9) the prosecutor's rebuttal argument was improper; and (10) the sentence imposed was excessive.

Defendant's convictions stem from his participation in the murder of Ronald Roberts. Roberts was a manager at the Cineplex Odeon Theater in the Fox Valley Mall in Aurora, Illinois. On December 23, 1988, defendant, Thomas Olds and Steven Schoppe met at the Musicland store in Joliet, Schoppe's place of employment, to discuss their plans for that evening. Defendant, 16 years old at the time of the incident, suggested that they go to the movies because they could get in for free. Defendant had been employed at the theater until late November 1988. Defendant also wanted to pick up his last paycheck. Defendant left his job due to cash shortages in his register.

Schoppe testified that when the group decided to go to the movies, defendant said that they could rob the place. Schoppe thought he was joking, but defendant began to explain his plan. Defendant said he would get money from the manager's office when defendant went to get his check. The manager usually let defendant go into the office alone, and Olds would help by distracting the manager. Schoppe stated that he told the other two to "count [him] out."

After leaving Musicland, the three went to Schoppe's house and then to another friend's house, Brendan Mahoney. Defendant went inside Mahoney's house while Schoppe and Olds remained in the car. Mahoney testified that defendant asked him to go to the movies. Mahoney declined because he was afraid of Olds. Olds was angry with Mahoney because he would not get a weapon for Olds. Defendant told Mahoney that Olds would not be angry if he gave Olds some gloves. Defendant took some gloves and went back to the car.

Schoppe testified that while defendant was gone, Olds showed him a knife that was on the floor under the front seat. Olds told Schoppe that the knife belonged to Cory Hamerla, a friend of Olds. After 15 to 20 minutes, defendant returned, and they drove to an abandoned house between Plainfield and Aurora. Defendant told Olds and Schoppe that the house was a place where friends went to drink. They left the house without going inside and went to the theatre.

The Cineplex Odeon theaters at Fox Valley Mall are in two separate buildings, the "big" building and "small" building. At approximately 7 p.m., the three went to the big theater and walked in without paying admission. Defendant signed a sheet and spoke to one of the employees. They remained in the big theater watching two movies for approximately two hours. They left the theater and went back to the car. Schoppe testified that defendant again talked about robbing the theater. Again, defendant and Olds told Schoppe that they really were not going to go through with the plan. They got in the car and drove to the small theater building.

Defendant went into the small theater and let Olds and Schoppe in through a back door. They went in and watched a movie for approximately 45 minutes. According to Schoppe, during that time defendant left the movie twice by himself and a third time with Olds. Defendant's first two trips were for candy and the bathroom. The third time, defendant told Olds that the manager was alone. Schoppe testified that he asked Olds if they were "really going to do this" and they said "yes." Schoppe stayed at his seat and watched the movie.

A short time later, defendant and Olds returned, and the three left through the same back door they entered. At the car, Olds squatted next to the car door until he was let in. Schoppe further testified that Olds had a wet spot on his coat. Defendant had no stains on his clothing. According to Schoppe, defendant said "I can't believe I did that. I feel like a scumbag." Later, when questioned by police, Schoppe told them that Olds made those statements.

While in the car, defendant told Schoppe that he had the $20 he owed Schoppe. Schoppe also testified that he saw Olds "fiddling with some money." Schoppe did not take any of the money and told them to take him home.

Schoppe testified that defendant and he had discussed robbing the theater on previous occasions. Defendant told Schoppe that it would be easy to go in, grab the cash box and walk out. Defendant did not discuss using violence to get the money.

Around midnight on December 23, Ronald Roberts was found dead in the office of the small theater. He had been stabbed several times in the back, stabbed in the abdomen, stabbed in the skull and had his throat cut. One of two safes in the office was open and was empty, except for some coins. An empty cash box was on the floor. The assistant manager estimated that $1,100 was in the safe.

The morning after the incident, defendant went back to Mahoney's house. Defendant returned $20 he had borrowed from Mahoney. Mahoney testified that he noticed defendant had a lot of money with him and asked defendant where he got it. Defendant told Mahoney that he robbed the theater with Olds and that Olds had done everything. Defendant also told Mahoney that the manager, Roberts, had been killed and that the "blood looked fake, just like in the movies." Mahoney testified that defendant also told him previously that if defendant were to rob the theater, it would be necessary to kill any witnesses.

Before the night of the robbery, defendant also told his plan to Thomas Kastrati, his neighbor. Kastrati testified that defendant told him Mahoney had said it would be easy to rob the theater and that Mahoney would get guns. Defendant had also said that Olds wanted to rob the theater and would kill whoever was working that night. Kastrati also testified that defendant took him to the abandoned house. Defendant told Kastrati to bring a knife, which he did.

Kastrati was working at the theater on the night in question. Defendant had asked him that morning to sneak him into the theater. Kastrati testified that he told After the incident, the police questioned Kastrati. Kastrati testified that the police asked him where defendant might hide something. Kastrati took the police to the abandoned house. There, they found a bloodstained jacket and a bloody knife hidden in the basement.

[167 Ill.Dec. 647] defendant no. That evening, Kastrati saw defendant at the small theater building at approximately 9:30 p.m. Defendant told Kastrati he was going to get his check after the movie and was not going to rob the theater.

Defendant was subsequently taken into custody by the Aurora police on December 25, 1988. He was picked up while backing out of his driveway. A search of defendant's trunk produced, among other things, a bag of bundled money and two knives in sheaths hidden under a tire. Later that day, the police went to Cory Hamerla's house. Hamerla gave the officers a canvas bag, with Thomas Olds' name on it, that contained bundles of money. Hamerla also showed the officers a bag in the trunk of Hamerla's car that contained a pair of pants and boots. Both bags belonged to Olds. Hamerla testified that Olds came to his house on December 24, 1988, and asked Hamerla to keep those items for him. Hamerla also testified that he lent Olds a knife. Hamerla identified it in court and said Olds told him the tip of the knife broke off in a man's head. Olds told Hamerla that he stabbed Roberts by himself.

Defendant arrived at the Aurora police station after his arrest at approximately 5 p.m. on December 25. The police told him that his parents had been notified. At 5:30 p.m., defendant spoke with a juvenile officer, Ed Sweeney. Sweeney testified that he read defendant his Miranda rights and defendant waived his right to remain silent by signing a waiver form at 5:55 p.m. Sweeney testified that after signing the waiver form defendant asked him if he could stop answering questions if he chose to do so. Sweeney told defendant that he could stop answering questions at any point he wished. Sweeney left the room while defendant was questioned, but told defendant he would be right outside the room if defendant needed him. Defendant claims that he asked for his parents before...