The People Of The State Of Ill. v. Calabrese

• Decision Date: 26 January 2010
• Docket Number: No. 2-08-0208.,2-08-0208.
• Citation: 398 Ill.App.3d 98,924 N.E.2d 6,338 Ill.Dec. 146
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Michael J. CALABRESE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 98

924 N.E.2d 6

338 Ill.Dec. 146

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Michael J. CALABRESE, Defendant-Appellant.

No. 2-08-0208.

Appellate Court of Illinois,

Second District.

Jan. 26, 2010.

COPYRIGHT MATERIAL OMITTED

Thomas A. Lilien, Deputy Defender, Kathleen Weck, Office of the State Appellate Defender, for Michael J. Calabrese.

John A. Barsanti, Kane County State's Attorney, Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, for the People.

Justice BOWMAN delivered the opinion of the court:

Defendant, Michael J. Calabrese, was convicted of first-degree murder (720 ILCS 5/9-1(a)(3) (West 2004)) on January 18, 2008, after a jury trial. He was sentenced to 45 years' imprisonment plus an additional 25 years pursuant to the mandatory add-on for using a firearm (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004)). On appeal, defendant argues that: (1) the trial court failed to comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); (2) there was insufficient evidence to prove his guilt beyond a reasonable doubt; (3) the trial court erred in knowingly allowing the jury to hear witness Patrick Calabrese invoke his fifth amendment privilege; and (4) his 70-year sentence was excessive given his mitigating factors. We affirm.

I. BACKGROUND

On August 22, 2005, defendant was indicted for the murder of Edmund Edwards. The indictment alleged that on May 1, 2005, defendant shot Edwards during a dice game at the Foxview apartment complex in Carpentersville, causing his death. On October 22, 2007, the trial court began voir dire proceedings. At the start of the proceedings, the trial court summarized the charges against defendant and stated that he pleaded not guilty. The trial court then stated:

“The defendant is presumed innocent.

The prosecution has the burden of proof. The burden of proof is proof beyond a reasonable doubt. Only if this burden of proof is met can the defendant be found guilty.

The defendant is not required to prove his innocence. The defendant is not required to present any evidence.

The defendant is not required to testify. If the defendant does not testify, you as jurors must not use that against him in deliberating upon your verdict.”

The trial court then had the clerk administer the oath to all prospective jurors. Twelve panel members were called to the jury box, and the trial court asked whether any of them had cases pending in the county. During the first voir dire session, juror numbers 248, 47, 148, and 251 were called. The court asked each juror individually, “Do you accept the legal principles that I have mentioned?” The jurors all responded “yes.” In the second panel, juror numbers 44, 92, 210, 61, and 163 were called and asked individually, “Do you accept the legal principles that I have mentioned?” and each answered “yes.” Following a break for lunch, juror numbers 32 and 57 were called and asked individually “[d]o you accept the legal principles that I have mentioned?” and each responded “yes.” The court then recessed and upon returning to session with a new group of prospective jurors, the court recited:

“The defendant is presumed to be innocent. The prosecution has the burden of proof. The burden of proof is proof beyond a reasonable doubt. Only if that burden of proof is met could the defendant be found guilty.

The defendant is not required to prove his innocence. The defendant is not required to present any evidence. The defendant is not required to testify.

If the defendant does not testify, you as jurors must not use that against him in deliberating upon your verdict.”

After these instructions were provided, the trial court continued questioning potential jurors. Juror number 39 and alternate juror numbers 46, 29, and 73 were called and asked individually, “Do you accept the legal principles that I have mentioned?” Each juror responded “yes.”

After being asked whether they accepted the legal principles that were mentioned, the jurors were asked questions relating to their backgrounds, connections to the legal system, and potential connections to the case. Ultimately the jurors mentioned here by number were selected for defendant's jury.

On October 23, 2007, the case proceeded to trial. The following facts are derived from the trial transcripts. Carlos Gonzalez, a Carpentersville police officer, testified first for the State. At approximately 2:45 a.m. on May 1, 2005, Officer Gonzalez was completing a traffic stop approximately one-quarter-mile northeast of the Foxview apartment complex when he heard a gunshot coming from the direction of Foxview. Officer Gonzalez got in his vehicle, and another officer, Robert Drews, who was also at the traffic stop, got in his vehicle, and they drove to the apartment complex. The apartment complex was on Oxford Road with buildings on the east and west sides of the road. Approximately 23 two-story residential buildings comprise the complex, with three side streets that run through them: Oak Crest, Oxford, and Middlesex. Officer Gonzalez entered the parking lot of 13 Oak Crest, and he saw a group of people. The people directed him to the grassy median between the parking lots of 20 Oxford and 14 Oxford. Officer Gonzalez went to that area and saw Edwards, also known as “Tay Tay,” lying on the ground and unresponsive. The victim was lying between two parked minivans, and he had cash in his left hand. Officer Gonzalez described the parking lot as “fairly well lit.” He did not recall seeing defendant at the scene and did not recall seeing any other traffic entering or exiting the parking lot.

Officer Drews testified next. Officer Drews was completing a traffic stop with Officer Gonzalez at approximately 2:45 a.m. on May 1, 2005, when he heard a gunshot coming from the direction of the Foxview apartment complex. He and Officer Gonzalez returned to their respective vehicles and drove over to the apartment complex. As he was driving over, Officer Drews heard a dispatch that an ambulance was being sent to Foxview because a man had been shot in the area of 14 and 20 Oxford. The officers were directed to the grassy median between the parking lots of 14 and 20 Oxford, and they saw Edwards lying face down between two minivans. In the victim's left hand, Officer Drews saw $140 cash. He took the money into evidence. Officer Drews also retrieved $670 cash in the victim's pocket. Later that day, Officer Drews attended the autopsy of Edwards and was handed a bullet that was removed from the victim's body cavity. He also was given the victim's clothing and identified the victim's coat.

Keisha Ligon testified for the State as follows. In May 2005, Ligon resided at 21 Oxford, in a second-floor apartment. Ligon knew Edwards and his girlfriend as acquaintances from the complex. On May 1, 2005, Ligon returned to Foxview from a Minnesota trip at approximately 2 or 3 a.m. Ligon came back with Rudy Marcial, in his vehicle. When they arrived, Ligon talked to some people who were outside 20 Oxford while Rudy retrieved his intoxicated brother from a vehicle and left to take the brother home. Ligon testified that there were many people outside of 20 Oxford, and some people were playing a dice game on the sidewalk. Her friend Angie was playing the dice game and complaining about losing her money. She noticed a green van parked near the sidewalk where the dice game was being played. One of the men Ligon saw outside was a man she knew as “Mike,” and she described him as Mexican or Puerto Rican, with low-cut hair. She had met the man a few days before the May 1 shooting, when the man was playing with Ligon's pet pit bull outside the apartment building. Ligon had spoken to the man for about a minute and this had occurred in the daytime. On May 1, she also saw a second woman named Angie and a woman named Isha outside but they were not playing the dice game.

After about five minutes of talking with the people in front of 20 Oxford, Ligon went into her apartment and lay down. About five minutes later, Ligon “heard a pow.” She stated it sounded like a gunshot but she did not get up. Ligon then received a phone call in which the caller told her to look out her window. She looked out her window and saw the parking lot area. Police were putting up yellow tape. Ligon testified that she did not go outside but admitted that police spoke with her immediately after the incident.

On May 3, 2005, Ligon went to the Carpentersville police department and spoke with Sergeant Bosshart. She admitted that she told Sergeant Bosshart that her name was Monique Johnson. Sergeant Bosshart showed Ligon a photo lineup and she identified the man she knew as “Mike” by marking the initials “MJ” next to the photo. Ligon identified the man she knew as “Mike” as defendant in the courtroom.

Ernest LeFlore testified next. In May 2005, LeFlore resided in the 3 Middlesex building of the Foxview apartment complex. On the morning of May 1, 2005, around midnight to 1 a.m., LeFlore returned to his apartment from a trip to Chicago. He dropped off his girlfriend and two children at their building and then drove down the street, where he saw about five people shooting dice. LeFlore knew “Tay Tay” and testified that he was one of the people shooting dice. LeFlore also identified defendant as a man he saw standing against a wall. LeFlore testified that he heard defendant say “whoever win[s] the dice game [is] going to get stuck up.” After he heard that comment, LeFlore started to look over at defendant more. LeFlore saw some females around the dice game but he could not recall their names.

LeFlore played the dice game but lost. After losing, he quit and went to sit in his car. He quit because “the dude say he was going to stick the game up * * * and I got scared.” Approximately 20 minutes later, LeFlore saw defendant walk away from the game and then return to the game about 5 minutes later with a hooded...