People v. Trzeciak

• Decision Date: 29 October 2014
• Docket Number: No. 1–10–0259.,1–10–0259.
• Citation: 21 N.E.3d 732
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Joseph TRZECIAK, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

21 N.E.3d 732

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Joseph TRZECIAK, Defendant–Appellant.

No. 1–10–0259.

Appellate Court of Illinois, First District, Third Division.

Oct. 29, 2014.

Rehearing Denied Nov. 26, 2014.

Modified Upon Denial of Rehearing Dec. 3, 2014.

Michael J. Pelletier, Jennifer L. Bontrager, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice HYMAN

delivered the judgment of the court, with opinion.

¶ 1 Defendant, Joseph Trzeciak, was convicted of first-degree murder for killing Donald Kasavich. Trzeciak was sentenced to 90 years' imprisonment, 50 years for first-degree murder, with a 40–year enhancement for the use of a firearm during the commission of the murder. This court, with one justice dissenting, reversed Trzeciak's conviction, holding that a threat Trzeciak made to his estranged wife that he would kill her and Kasavich was inadmissible under Illinois's marital communication privilege and the statement's introduction at trial was prejudicial to Trzeciak.

People v. Trzeciak, 2012 IL App (1st) 100259, 361 Ill.Dec. 720, 972 N.E.2d 205

. Justice Murphy dissented, reasoning that Trzeciak did not intend for his conduct and threat to remain confidential and, therefore, the marital privilege did not extend to its use. The supreme court granted the State's petition for leave to appeal.

¶ 2 The sole issue before the supreme court was whether the marital privilege applied to the April 2004 conversation between Trzeciak and his wife. The supreme court held the threat did not constitute a confidential communication, reversed the judgment, and remanded the case for us to address the other issues raised by Trzeciak's appeal. People v. Trzeciak, 2013 IL 114491, ¶ 53, 378 Ill.Dec. 761, 5 N.E.3d 141

.

¶ 3 On remand, we have carefully considered all of Trzeciak's challenges and find no reversible error. The evidence at trial proved Trzeciak guilty beyond a reasonable doubt. The trial court properly admitted evidence of his flight to show consciousness of guilt and proof of his spousal abuse on the issue of his motive. While we disapprove of the manner of the exchange between the trial court and the prospective juror who claimed bias during voir dire, we reject Trzeciak's contention that the trial court's conduct affected his right to a fair trial. Further, we find no error in the trial court's limit of the defense witness's testimony where the court's ruling did not frustrate defense counsel's ability to rebut the State's evidence. The trial court did not abuse its discretion in sentencing Trzeciak. His sentence is within the statutory range and is proportionate to the nature of the offense. Lastly, Trzeciak is correct that the mittimus must be amended to reflect a single conviction of murder. Accordingly, we uphold the judgment of the trial court and correct the mittimus to reflect only one murder conviction.

¶ 4 BACKGROUND

¶ 5 On June 29, 2004, Donald Kasavich was found dead in his trailer in the Hegewisch area of Chicago. He suffered three gunshot wounds

to the head. His trailer was found in disarray and a window had been broken. (We will provide greater detail of the facts as they become relevant to each of Trzeciak's claims of error.)

¶ 6 The defense moved to dismiss the charges as based on evidence from Daniel Barnas, who was dead at the time of trial and, thus, unavailable to testify. Defense counsel's motion, after noting that both the murder weapon and a prescription belonging to Kasavich were found at Barnas's house, argued that Barnas tried to pin the murder on Trzeciak. The trial court denied the motion to dismiss because the sufficiency of the evidence was an issue to be determined by the jury.

¶ 7 Trzeciak also filed several motions in limine to exclude various physical evidence and testimony. Defense counsel sought to prevent the State from introducing: (1) the testimony of his estranged wife, Laura Nilsen, about threats Trzeciak made toward both her and Kasavich based on marital privilege (subject of the 2012 opinion); (2) Nilsen's testimony about domestic violence as prior bad acts; (3) photographs Hammond police took of Nilsen showing extensive bruising as too prejudicial; (4) evidence from Trzeciak's truck on the grounds the consent to search lacked authority; (5) the circumstances of Trzeciak's arrest by Hammond police and other evidence of flight as prejudicial and irrelevant; and (6) the small bloody piece of glass and evidence related to it on the basis that the chain of custody was inadequate.

¶ 8 Following extensive hearings on the motion in limine, the court denied all of the defense motions. (We note the record on appeal only includes the motions and memoranda filed by the defense, not those filed by the prosecution.) The court ruled there was no chain of custody problem and denied that motion (point (6) above). The court also denied Trzeciak's motion about prior arrests and flight, finding evidence of flight was admissible as consciousness of guilt (point (5) above). No ruling was made on the motion to suppress evidence obtained from the search of Trzeciak's truck because the State informed the court it did not intend to use the evidence (point (4) above). The court denied Trzeciak's request to exclude photographs Hammond police took of Nilsen finding them more probative than prejudicial on the issue of motive (point (3) above).

¶ 9 Concerning Trzeciak's prior domestic violence (point (2) above), the trial court agreed to allow the State to introduce some testimony about domestic violence, specifically any evidence tending to show motive for the murder. But, after viewing Nilsen's videotaped statement to the police, the trial court held the jury would not be allowed to see it.

¶ 10 While the original opinion of this court did not address evidence of Trzeciak's prior domestic violence, the supreme court, after recognizing that Trzeciak's motion to exclude evidence of the prior domestic violence was not based on the marital privilege, nevertheless held that Trzeciak's conduct (which took place in April 2004) “need not have been barred by the marital privilege.” People v. Trzeciak, 2013 IL 114491, ¶ 48, 378 Ill.Dec. 761, 5 N.E.3d 141

.

¶ 11 Later, the State moved to bar the defense from presenting testimony from John Riggio, a gun shop manager, from using photographic evidence of other guns from his shop. Defense counsel explained that to impeach witnesses' identification of Trzeciak's gun as the murder weapon, he wished to show a “gun array” to them to demonstrate how similar the murder weapon, which would only be shown in photographs, was to other gun models. The court deferred ruling on this issue until the relevant witnesses testified and instructed defense counsel to ask for a sidebar at that time.

¶ 12 During jury selection, one potential juror stated that his wife's cousin had been accused of shooting at an off-duty officer and this could “possibly” make him unable to be fair. After further questioning, the potential juror stated he might not be fair to the prosecution. The judge responded:

“You are not excused. You will sit here and come back every day of the trial and watch how a fair jury operates. You can sit back there and come back every day of the trial under my direct order. Sit in the back.”

Following the parties' in-chambers challenges to the panel, the trial judge excused the rejected jurors, but not the potential juror who claimed a possible bias. That juror was told to “sit here and come back every day of the trial and watch how a fair jury operates.”

¶ 13 At the conclusion of the trial, the jury found Trzeciak guilty on all counts. Defense counsel filed a posttrial motion, which the court denied after a hearing.

¶ 14 At sentencing, the State presented testimony, over defense objection, from Hammond police officer Todd Larson, who testified about the ammunition found in Trzeciak's trailer after his arrest, as well as its general condition. Kasavich's sister read a victim impact statement. The State introduced Trzeciak's prior convictions: aggravated battery to a peace officer, delivery of cocaine, and unlawful use of a weapon by a felon. In mitigation, the defense offered a transcript of federal court testimony from an investigator who looked into Trzeciak's alleged abuse by his fourth-grade teacher, as well as a sentencing recommendation from a federal conviction advising aggressive psychiatric treatment.

¶ 15 The sentencing court summarized the evidence and found Trzeciak to be an increasingly violent offender from whom the public needed protection. The court found no mitigation present and sentenced Trzeciak to 50 years for murder, with a 40–year firearm enhancement, to run consecutively to his federal sentence.

¶ 16 ANALYSIS

¶ 17 Sufficiency of the Evidence

¶ 18 Trzeciak contends the evidence, all circumstantial, fails to sustain his conviction of first-degree murder for the shooting death of Donald Kasavich. Trzeciak attaches significance to the absence of physical evidence such as fingerprints, hairs, or fibers identifying anyone other than the victim despite a serious conflict having occurred at Kasavich's home, resulting in broken windows, torn blinds, and general disarray. And, the DNA recovered from under Kasavich's fingernails specifically excluded Trzeciak as the source. In addition, the shell casings at the scene matched a weapon recovered from Daniel Barnas's house. As for Trzeciak's DNA on a shard of glass found outside the trailer, the DNA cannot be linked to a specific time or date and does not place him inside the trailer or otherwise implicate him in Kasavich's murder. No one witnessed the shooting and Trzeciak never confessed.

¶ 19 Trzeciak argues the State's attempt to link the gun recovered from Barnas's house to him fails because the witnesses who looked at the photograph of the...