People v. Modrowski
Annotate this Case
1-95-1993
SECOND DIVISION
MAY 19, 1998
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 93-CR-12080
)
PAUL MODROWSKI, ) THE HONORABLE
) SAM AMIRANTE,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE COUSINS delivered the opinion of the court:
Defendant, Paul Modrowski, and codefendant, Robert Faraci, were charged
with first-degree murder for the shooting death of Dean Fawcett. Following
simultaneous dual jury trials, codefendant was acquitted while defendant was
convicted. On appeal, defendant argues that reversible error occurred where:
(1) the trial court refused to give curative jury instructions following the
prosecution's misstatement of accountability law; (2) the State introduced
improper prior inconsistent statements as substantive evidence and for
impeachment purposes; (3) the trial judge abused his discretion in refusing
the jury's request for transcripts of a key witness' testimony; (4) defendant
received ineffective assistance when counsel failed to request that the jury
be given counsel's copy of a key witness' testimony and failed to offer a
written prior inconsistent statement as substantive evidence; (5)
prosecutorial misconduct deprived defendant of a fair trial; and (6) the
sentence imposed, life imprisonment, was unfairly disparate and excessive.
BACKGROUND
On January 18, 1993, a woman and her daughter were walking along
railroad tracks near their home in Barrington, Illinois, when they discovered
a human body in the snow near the tracks. The woman immediately called law
enforcement authorities to the scene, where Barrington Police and Illinois
State Police found the body in a frozen state with its head, left arm, and
right hand missing. No identification was found on the body, but the police
found two phone numbers on a note in clothing on the body. The phone numbers
led the police to Nadine Lenarczak (Lenarczak), who provided information that
led police to determine that the body was that of 22-year-old Dean Fawcett
(Fawcett). A missing persons report, DNA testing, and records showing that
Fawcett purchased the shoes and eyeglasses found near the body confirmed that
the victim was Fawcett.
The evidence in the instant case established that, on December 1, 1992,
Fawcett had opened a checking account with a $100 deposit at a bank in Berwyn,
Illinois. From December 22 through December 27, 1992, Fawcett wrote over 40
bad checks against that account. During that period, he was frequently
accompanied by his friends, Briente Palazaeno (known as Brian Palasz), Mr. and
Mrs. Robert and Rose Faraci, Paul Modrowski (Modrowski), and Lenarczak. Each
person in this group enjoyed benefits from the proceeds of Fawcett's check-
writing spree.
At trial, Lenarczak testified that, on December 27, 1992, after
purchasing goods with bad checks along with Robert Faraci (Faraci), Modrowski,
Fawcett, and Palasz, the group returned to Lenarczak's motel room and ordered
food. Faraci and Fawcett left to pick up the food, while Palasz and Modrowski
remained at the motel room, speaking in low voices away from Lenarczak. After
Faraci and Fawcett returned with the food, Lenarczak spoke with Fawcett
privately. She warned him that he would likely get caught for writing the bad
checks. Fawcett replied that he intended to move to California and that, if
he was apprehended by authorities, he would tell the police everything about
the check-writing scheme. Faraci then interrupted the conversation between
Lenarczak and Fawcett and took Fawcett aside. Lenarczak subsequently warned
Faraci that he should arrange for Fawcett to go to California to help ensure
that Fawcett would not implicate everyone else in the check-writing scheme.
Lenarczak also testified that, the following morning, Fawcett telephoned
her from a hotel where he had been staying and complained that his wallet,
identification, and checks were missing. Fawcett stated to her that Faraci
and Modrowski were supposed to pick him up from his hotel and that he
suspected the two men of stealing the aforementioned items. Lenarczak then
went to pick up Fawcett and drove him back to her motel, where he tried to
telephone Faraci. When Fawcett and Lenarczak prepared to leave the motel soon
thereafter, Faraci and Modrowski arrived in Faraci's car. According to
Lenarczak, Modrowski jumped out of the car, opened the passenger door of
Lenarczak's car, and told Fawcett to get out. Modrowski and Fawcett argued
for a short time about the missing wallet and checks, and then Modrowski
pushed Fawcett into the back seat of Faraci's car as Fawcett demanded to be
taken home. Lenarczak stated that that was the last time she saw Fawcett.
Palasz also testified at trial, stating that he, Modrowski, Faraci, and
Fawcett were friends. Palasz' testimony largely corroborated that of
Lenarczak, with some exceptions. He denied, for instance, that Lenarczak told
him that Fawcett might inform the police of the group's illegal activities.
He also denied that there was any discussion about killing Fawcett on December
27, 1992. Palasz did admit, however, that on December 23, he was present
during a conversation with Faraci and Modrowski in which the killing of
Fawcett was proposed. Palasz testified at trial that, while he could not
recall certain details, Modrowski did not state during that conversation that
he wanted Fawcett killed. The State then confronted Palasz with his prior
testimony given before a grand jury in which he gave a detailed account of
statements made by Modrowski that evinced his intent to kill Fawcett. Palasz
acknowledged his grand jury testimony, but argued that the incriminating
statements of the conversation were made by Faraci and that Modrowski was
merely relating Faraci's statements to Palasz at a point in the conversation
when Faraci left Palasz and Modrowski alone. However, Palasz did admit that,
upon Faraci's return to the conversation, there was a mention of killing
Fawcett. Once again, Palasz was confronted with additional prior grand jury
testimony in which he described that Modrowski desired to kill Fawcett.
Rose Faraci (Mrs. Faraci) testified that she married Robert Faraci in
April 1992. She stated that Palasz lived with the couple until she ejected
him. Sometime later, Modrowski moved in to live with the Faracis. Mrs.
Faraci stated that she never knew Modrowski by his true name, but only by the
name Viktor Himmler. Mrs. Faraci acknowledged being a party to the fraudulent
check-writing scheme and admitted that she knew that Fawcett was already dead
when she forged one of his checks on January 6, 1993. Soon thereafter, the
Faracis moved to Florida, followed immediately by defendant. Mrs. Faraci
testified that she and Modrowski rented an apartment there as husband and wife
under the names Rosalie Rugo and Viktor Himmler. All three lived in the
apartment, but Robert Faraci did not sign the lease. Mrs. Faraci testified
that the three stayed in Florida for approximately three months and that the
Faracis subsequently returned to Chicago after Modrowski had returned.
Deputy Chief Investigator John Robertson was one of over 40 witnesses
who testified in the case. Robertson testified that defendant admitted in a
statement while in police custody that he offered Faraci the use of his car to
effectuate the killing of Fawcett and that, before and after the shooting, he
had concealed the 9-millimeter gun that Faraci used to kill Fawcett. At the
close of the proceedings, the jury found Modrowski guilty of first-degree
murder under a theory of accountability. The trial court found that defendant
was eligible for the death penalty, but sentenced him to life imprisonment
without the possibility of parole due to the trial judge's belief that
Modrowski may not have been present during Fawcett's murder. Defendant brings
the present appeal from that judgment.
We affirm.
ANALYSIS
Defendant first contends that the trial court erred by refusing to
declare a mistrial or give a curative instruction after the prosecution
misstated the law of accountability to the jury during rebuttal argument. We
note that defendant failed to make a timely objection following the remarks in
question and waited until rebuttal argument was complete and the jury was
instructed on the law and excused to deliberate before making its motion for a
mistrial. Consequently, defendant waived this issue on appeal, and this
court, therefore, may only review the issue under the standard of plain error.
People v. Hayes, 139 Ill. 2d 89, 143 (1990). The plain error rule is not a
blanket savings provision, however, and is invoked only in exceptional cases
where the evidence is closely balanced or where the alleged error was so
prejudicial that it denied the defendant a fair trial. Hayes, 139 Ill. 2d at
143.
One is accountable for the conduct of another when "[e]ither before or
during the commission of an offense, and with the intent to promote or
facilitate such commission, he solicits, aids, abets, agrees or attempts to
aid, such other person in the planning or commission of the offense." 720 ILCS
5/5-2(c) (West 1992). Although accountability requires that the assistance of
an accused occur prior to or during the commission of the unlawful act, such
assistance may be inferred from activities occurring after the offense. People
v. Ruiz, 94 Ill. 2d 245, 257 (1982); People v. Foster, 198 Ill. App. 3d 986,
993, 556 N.E.2d 1214, 1219 (1990). For instance, the subsequent concealment
or destruction of evidence is a factor that may be considered by the fact
finder in determining whether the accused aided in the commission of the
offense. People v. Johnson, 220 Ill. App. 3d 550, 555, 581 N.E.2d 118, 122
(1991).
In the case sub judice, the prosecutor summarized the evidence
supporting a guilty verdict under the theory of accountability. This evidence
essentially consisted of defendant's discussions of killing Fawcett,
defendant's offering Faraci the use of a gun and his car to facilitate the
murder, and defendant's subsequent concealment of the gun. The prosecution
followed this summation with a verbatim recitation of Illinois Pattern Jury
Instructions, Criminal, No. 5.03 (3d ed. 1992) regarding accountability.
Defense counsel's subsequent closing argument at one point focused upon
the language of the accountability statute requiring that defendant's
assistance must have been "before or during" the commission of the offense.
Defense counsel then argued that defendant's concealment of the gun occurred
after the offense and implied that defendant, therefore, should not be found
guilty under the charge of accountability, since his involvement at most
implicated him as an accessory after the fact.
In rebuttal closing argument, the prosecution responded as follows:
"Now, counsel says, 'Well, wait a second. Accountability happens
if its [sic] before or during the commission of the crime. Hiding
the gun after Dean is killed is after.' Wrong. Folks, the crime
is still happening until they get caught. Hiding the gun in
Florida and taking it with them wherever he went is part and
partial [sic] of the commission of the crime. It's still
happening. *** So the concealment of evidence of the murder
weapon is part of the commission of the offense."
Defendant claims that the State's remarks prejudiced defendant by
leading jurors to believe that one could be found guilty under the theory of
accountability under facts showing that defendant was only an accessory after
the fact. Defendant argues that the prejudice was compounded by the fact that
the prosecution's misstatement occurred during rebuttal closing argument
without a subsequent curative instruction by the trial court or an opportunity
for the defense to respond to the jury. Initially, we agree with defendant
that the above rebuttal remarks concerning accountability and the completion
of the crime of murder were incorrect statements of the law. Our supreme
court recently clarified this issue in People v. Dennis, 181 Ill. 2d 87
(1998), when it stated:
"Based upon the plain language in our accountability
statute, we conclude that, for purposes of accountability, the
duration of the commission of an offense is defined by the
elements of the offense. *** Consistent with our accountability
statute, a defendant may be held accountable for the commission of
[an offense] if, either before or during the commission of the
offense, he aided or abetted [the offender] in 'conduct which is
an element of [the] offense.' " (Emphasis added.) Dennis, 181 Ill. 2d at 101.
Therefore, in the context of criminal accountability, analysis of when the
crime of first-degree murder is complete is determined by the elements of
first-degree murder. In light of this rule, it was patently incorrect for the
prosecution to state that the applicable law deems concealment of a murder
weapon an element of the crime of murder and that the crime is not complete
until the perpetrator is finally apprehended. The commission of an offense is
completed when the elements of that offense are satisfied. See Dennis, 181 Ill. 2d at 102 (commission of armed robbery ends when force and taking, the
elements that constitute the offense, have ceased). The State's rebuttal to
defense counsel's attempt at convincing the jury that defendant's conduct was
that of an accessory after the fact would have been correct if it had stated
that factors such as post-offense concealment may be considered to infer
defendant's involvement in the homicide. Ruiz, 94 Ill. 2d at 257; Foster, 198
Ill. App. 3d at 993, 556 N.E.2d at 1219.
Nevertheless, we disagree with defendant that the prosecution's
incorrect statement of the law "deflected" the jury from its ability to follow
the correct accountability instructions that were given. We note that the
defense read the correct jury instruction on accountability to the jury prior
to the State's rebuttal argument. Additionally, the jurors were given correct
instructions after closing arguments. Moreover, the trial court made repeated
admonishments to the jury about the nature of closing arguments and the fact
that jurors were to rely only on the statements that were based on the
evidence. See People v. Thompkins, 121 Ill. 2d 401, 445 (1988) (prosecutors
are afforded great latitude in closing argument, and improper remarks merit
reversal only when they cause substantial prejudice to defendant). These
factors militate in favor of a determination that defendant was not prejudiced
by the State's incorrect closing argument. See People v. Walker, 230 Ill. App.
3d 377, 395-97, 594 N.E.2d 1252, 1264-66 (1992); Johnson, 220 Ill. App. 3d at
563, 581 N.E.2d at 128. Considering that the jury was presumed to understand
the correct instructions given and that the jury here raised no questions with
respect to the accountability instructions, we conclude that neither curative
jury instructions nor the granting of defendant's motion for a mistrial was
justified.
Defendant relies on People v. Weinstein, 35 Ill. 2d 467 (1966), a case
where the supreme court held that repeated, prejudicial prosecutorial comments
impeded the jury's ability to fairly consider evidence and warranted reversal.
However, Weinstein is inapposite because, in the instant case, the prosecution
uttered a single misstatement of law. Here the prosecutor did err in
argument. Nevertheless, the prosecutor's error was harmless, since the State
introduced substantial evidence against defendant and, in our view, the
evidence against defendant was not close.
Next, defendant contends that the admission of Palasz' grand jury
testimony as substantive evidence and his similar oral statements to police as
impeachment was improper. Defendant argues that it was error to admit Palasz'
prior inconsistent statements, since Palasz' testimony at trial was not
damaging to the State's case. We disagree.
In People v. Weaver, 92 Ill. 2d 545 (1982), the Illinois Supreme Court
explained the circumstances under which a party may introduce a prior
inconsistent statement:
"A court's witness, or any other witness for that matter,
cannot be impeached by prior inconsistent statements unless his
testimony has damaged, rather than failed to support[,] the
position of the impeaching party. The reason for this is simple:
No possible reason exists to impeach a witness who has not
contradicted any of the impeaching party's evidence, except to
bring inadmissible hearsay to the attention of the jury.
Impeachment is supposed to cancel out the witness' testimony. It
is only when the witness' testimony is more damaging than his
complete failure to testify would have been that impeachment is
useful." Weaver, 92 Ill. 2d at 563-64.
We note that, two years after Weaver was decided, our legislature enacted
section 115-10.1 of the Illinois Code of Criminal Procedure of 1963, which
provides in pertinent part:
"In all criminal cases, evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony
at the hearing or trial, and
(b) the witness is subject to cross-examination
concerning the statement, and
(c) the statement--
(1) was made under oath at a trial, hearing, or
other proceeding, or
(2) narrates, describes or explains an event or
condition of which the witness had personal knowledge,
and
(A) the statement is proved to have been
written or signed by the witness, or
(B) the witness acknowledged under oath
the making of the statement either in his
testimony at the hearing or trial in which the
admission into evidence of the prior statement
is being sought, or at a trial, hearing, or
other proceeding ***." 725 ILCS 5/115-10.1 (West
1992).
In the instant case, the State called Palasz as a witness. Palasz gave
testimony favorable to the State's case, including statements corroborating
many details of the check-writing scheme and defendant's presence with Fawcett
during the accompanying shopping sprees. Nevertheless, during direct
examination, Palasz denied that defendant had told him, during the December
23, 1992, conversation, that he wanted Fawcett killed. The State then
confronted Palasz with his prior grand jury testimony, in which Palasz stated:
"We are in Schiller Park outside of Faraci's residence, inside of
Faraci's car. Paul [Modrowski] is in the front seat. I was in
the back seat. Bob [Faraci] went in and get [sic] something from
the apartment. Paul is planning to run from the warrant out of
Du[P]age County. Then he starts saying that he thinks he should
kill Dean Fawcett because of the checks. I tell him right away,
no, that is stupid. *** I said there is no way this is going to
happen. He says, well I think it should. *** He looks at me and
said I really don't like Dean that much."
Palasz then admitted making the above statements, but claimed that defendant
had simply been repeating remarks made earlier by Faraci and that the "he" to
whom Palasz was referring was Faraci, not defendant.
Palasz then testified that, following the aforementioned conversation
with defendant, Faraci returned to the car and resumed a discussion in which
there was a mention of killing Fawcett without any elaboration. The State
once again confronted Palasz with his grand jury testimony wherein the
following colloquy occurred:
"Q. Did he refer or tell people that he should kill Dean
Fawcett?
A. Yes. He basically tried. Paul said he wanted to. Then
I basically talked to Paul, and he said he considered running with
Dean and not doing nothing [sic] to Dean. And Bob was basically
trying to persuade him to kill him."
In addition, when Palasz was unable to recall defendant telling him that he
would make Fawcett "disappear," Palasz was confronted with his grand jury
testimony in which he stated that defendant, indeed, told Palasz that "he's
going to disappear." Again, Palasz claimed that the "he" to whom he had been
referring could have been either defendant or Fawcett.
As to the above statements and inquiries, defendant argues that it was
error to permit the prosecution to use Palasz' grand jury testimony as
substantive evidence under section 115-10.1. In support of his position,
defendant cites Weaver, wherein the prosecution impeached its own witness with
a minor discrepancy in the witness' prior grand jury testimony. The supreme
court in that case held that the grand jury testimony could not be used as
substantive evidence, as there was no existing exception to the hearsay rule
permitting such a use, and that the use also constituted improper impeachment,
since the witness' in-court testimony did not damage the State's case. Weaver,
92 Ill. 2d at 563-65.
In light of the subsequent enactment of section 115-10.1 and subsequent
case law applying that provision, we find defendant's reliance on Weaver to be
misplaced. See People v. Flores, 128 Ill. 2d 66 (1989) (witness' testimony
claiming no memory of facts surrounding alleged offense held to be
"inconsistent," making detailed grand jury testimony admissible); People v.
Morales, 281 Ill. App. 3d 695, 666 N.E.2d 839 (1996).
Furthermore, we are of the opinion that Palasz' testimony at trial can
be properly characterized as inconsistent with his grand jury testimony. His
in-court denials were not merely disappointing to the State's case, since the
State very likely would have been damaged to the extent that the jury believed
Palasz' trial testimony on the issue of defendant's knowledge and involvement
in the planning of Fawcett's murder. Our determination that Palasz' prior
statements were inconsistent is supported by case law holding that, to be
inconsistent and, therefore, admissible as substantive evidence under section
115-10.1, a witness' prior statement need not directly contradict his or her
testimony, but need only have a tendency to contradict it. People v. Lee, 243
Ill. App. 3d 745, 749, 612 N.E.2d 922, 924 (1993). Weaver is inapplicable to
this issue by virtue of its focus on limiting prior inconsistent statements
for impeachment purposes. Indeed, the supreme court in Weaver recognized that
case's limitations by stating that inconsistent grand jury testimony could not
be used as substantive evidence "unless and until we decide that in this State
such prior statements can be used against a defendant as substantive
evidence." Weaver, 92 Ill. 2d at 564-65. Since the complained-of statements
used by the State satisfied all of the requirements of section 115-10.1, we
conclude that their use as substantive evidence was proper.
We are similarly unpersuaded by defendant's contention that he suffered
reversible prejudice from the State's improper impeachment by means of prior
inconsistent oral statements made by Palasz to a detective. During the
State's direct examination of Palasz, the prosecution questioned the witness
with respect to the conversation that allegedly occurred between Palasz and
defendant in Lenarczak's motel room on the night of December 27, 1992, while
Faraci and Fawcett left to pick up carry-out food. Specifically, Palasz
denied that there was any discussion of killing Fawcett during that
conversation. The State also questioned Palasz about which road Palasz had
earlier claimed he had dropped Fawcett off at the following morning. Palasz
testified that he believed that he dropped Fawcett off at River Road.
The State then confronted Palasz with his own prior handwritten
statements given to a detective in the case. The prosecution impeached Palasz
with a statement given to the detective in which Palasz stated that defendant
had told him on the night in question that they had "to get rid of Dean" and
that they "should whack Dean Fawcett." Palasz was also confronted with his
own prior statement wherein he claimed that he dropped Fawcett off the next
morning at Mannheim Road and Lawrence Court.
Defendant once again invokes Weaver in support of his contention that
the above impeachment was improper in light of the nondamaging nature of
Palasz' testimony preceding impeachment. Upon review of the record, we
conclude that the above prior statements were sufficiently contradictory to
justify the State's impeachment. In our view, Palasz' contradictory
statements to the detective did not constitute minor discrepancies compared to
his trial testimony, and, thus, the prosecution's impeachment was not
improper. Assuming, arguendo, that there was any impropriety in the above
impeachment, we deem it harmless error in light of the fact that the key
impeachment here involved the issue of discussions establishing defendant's
intent to have Fawcett killed--testimony that we have concluded was already
properly admissible as substantive evidence. Moreover, considering that
defendant failed to make timely objections and a posttrial motion regarding
the use of the above prior inconsistent statements, this issue may only be
reviewed under the plain error standard. In our opinion, however, the above
impeachment did not deprive defendant of a fair trial in the instant case.
Defendant also argues that the trial court abused its discretion in
refusing the jury's request for transcripts of Palasz' testimony. As a rule,
the issue of whether to grant or deny a jury's request to review evidence or
transcripts of witnesses' testimony lies within the sound discretion of the
trial court and will not be disturbed absent an abuse of that discretion.
People v. Williams, 173 Ill. 2d 48, 87 (1996). Transcripts of testimony may
be made available to the jury if the jury makes such a request and if the
trial court, in its discretion, believes that the transcripts will be helpful
to jurors. Flores, 128 Ill. 2d at 93. Where the jury itself requests the
opportunity to examine transcripts of the testimony, the trial court must
assume that the jury believes that such review would be helpful. People v.
Martin, 84 Ill. App. 3d 822, 826, 406 N.E.2d 49, 52 (1980).
In the instant case, shortly after deliberations commenced, the jury
requested transcripts of Palasz' grand jury testimony as well as the entire
transcript of defendant's trial. The court initially denied the jury's
request, reasoning that the trial had lasted one month, that daily transcripts
had not been ordered, that granting the jury's request would have been too
burdensome on the court reporter's office, and that there would have been
significant delay in the deliberation process. The trial court then noted
that the transcript of Palasz' grand jury testimony had been received as an
exhibit and that portions thereof had been admitted as substantive evidence.
Accordingly, the trial court allowed the jury to inspect a redacted copy of
that portion of Palasz' grand jury testimony received as substantive evidence,
reasoning that, because the jurors had lacked the opportunity to observe
Palasz before the grand jury, the jurors had no recollection of that testimony
upon which to rely. The trial court denied the jury's subsequent requests for
a copy of Palasz' handwritten statement based on the fact that it had not been
admitted into evidence. The court also denied its request for Palasz' entire
grand jury testimony.
We find no error in the trial court's rulings as to the foregoing jury
requests. We do not believe that it was an abuse of discretion for the trial
court to provide a redacted version of Palasz' grand jury testimony reflecting
only that portion submitted as substantive evidence. The same is true of the
trial court's decision not to allow the jury to review Palasz' handwritten
statement, as it was not admitted into evidence. Furthermore, the court acted
within its sound discretion in denying the jury's request to examine the
entire transcript of the trial proceedings. See People v. Blalock, 239 Ill.
App. 3d 830, 841-43, 607 N.E.2d 645, 653 (1993); People v. Creque, 214 Ill.
App. 3d 587, 596-97, 573 N.E.2d 1297, 1303-04 (1991). Despite defendant's
concern that providing the jury with a redacted version of Palasz' testimony
overemphasized statements that were unfavorable to defendant, we note that the
trial court was not obligated to balance its ruling by providing evidence not
admitted. As this court decided in People v. Lee, 243 Ill. App. 3d 1038, 614 N.E.2d 108 (1993), a trial court does not abuse its discretion by allowing
jurors to review a witness' prior inconsistent statements admitted as
substantive evidence while refusing to furnish them a copy of the witness'
contradicted in-court testimony. Therefore, we hold that the trial court
committed no abuse of discretion in its rulings with respect to the jury's
requests for transcripts.
Next, defendant contends that his attorneys provided ineffective
assistance of counsel by failing to request that their copy of Palasz' trial
testimony be sent to the jury in response to its requests, by failing to
preserve for the record the court's erroneous response to the jury's request
for transcripts, and by failing to offer Palasz' handwritten statement as
substantive evidence pursuant to section 115-10.1 (725 ILCS 5/115-10.1 (West
1992)).
In order to establish that one was denied effective assistance of
counsel, a defendant must show that counsel's representation fell below an
objective standard of reasonableness and that there is a reasonable
probability that, "were it not for counsel's unprofessional errors, the result
of the proceeding would have been different." People v. Whitehead, 169 Ill. 2d 355, 380 (1996), citing People v. Albanese, 104 Ill. 2d 504, 525 (1984). In
emphasizing defendant's duty to show prejudice, Illinois courts have noted
that the standard for judging a claim of ineffectiveness must be whether
counsel's conduct so undermined the operation of the adversarial process that
the trial cannot be relied upon as having achieved justice. Albanese, 104 Ill. 2d at 525, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). Defendant argues that the facts
alleged satisfy the aforementioned tests for a claim of ineffective assistance
of counsel. We disagree.
First, there is no evidence that defense counsel actually had in his
possession available copies of the entire trial transcript as alleged by
defendant. Defendant argues that his postsentencing motion, which stated that
such transcripts were "currently available," proves that defense counsel could
have satisfied the jury's requests. However, the fact that a copy of trial
testimony may have been available after sentencing does not show that it was
available at the time the jury requested such transcripts.
Also, even if the defense was able to provide the transcripts, we are
not persuaded that this would have changed the trial court's decision to deny
the jury access to all but Palasz' redacted grand jury testimony. The trial
court's reasoning behind its denials was not limited to its observation that
the court lacked a copy of the trial transcripts. On the contrary, the court
cited a number of factors as the basis for its denials, including its desire
that the jurors rely upon their own recollections of the evidence and trial
testimony during deliberations.
Additionally, we agree with the State that defense counsel's decision to
forego requesting that Palasz' trial testimony be furnished to the jury was
justifiable as an exercise of trial strategy. Simply put, much of Palasz'
testimony was damaging to defendant, as it corroborated a great deal of
Lenarczak's incriminating testimony. Although defendant may question the
strategic value of electing not to offer the defense's copy of Palasz' trial
testimony, we hold that defense counsel's inaction in this regard fell within
the wide spectrum of defense tactics that Illinois courts have long considered
to be an improper basis for supporting a claim of ineffective assistance of
counsel. People v. Guest, 166 Ill. 2d 381, 394 (1995); Flores, 128 Ill. 2d at
106; People v. Hillenbrand, 121 Ill. 2d 537, 548 (1988) ("[m]istakes in trial
strategy or tactics or in judgment do not of themselves render the
representation incompetent"); People v. Madej, 106 Ill. 2d 201, 214 (1985).
Therefore, we conclude that it cannot be said that defense counsel's
representation fell below an objective standard of reasonableness and that the
result of the trial proceedings would have been any different had they offered
to furnish copies of the transcripts to the jury.
Moreover, we find no merit to defendant's claim of ineffectiveness based
on his attorneys' failure to offer Palasz' handwritten statement as
substantive evidence. Defendant asserts that Palasz' handwritten statement,
which contained no mention of defendant's desire to kill Fawcett, was
inconsistent with an oral statement attributed to Palasz by a detective who
testified that Palasz had told him about defendant's desire to kill Fawcett.
We note, however, that "inconsistency" for purposes of section 115-10.1 refers
to the contradiction of a witness' prior statements with that witness' own in-
court testimony. 725 ILCS 5/115-10.1 (West 1992). Here, Palasz' testimony at
trial was that he did not hear defendant express a desire to kill Fawcett.
This was consistent with Palasz' handwritten statement provided to a
detective. The fact that the detective later contradicted Palasz' testimony
by referring to Palasz' prior oral statement claiming that defendant did
express a desire to kill Fawcett does not render Palasz' handwritten statement
inconsistent under section 115-10.1. The reason is that it is the detective's
testimony only that contradicts that of Palasz on the issue of defendant's
intent; Palasz' handwritten statement and in-court testimony remain
consistent. Since Palasz' handwritten statement, therefore, was inadmissible
as substantive evidence under section 115-10.1, defendant's claim of
ineffectiveness based thereon lacks merit.
Defendant also contends that three types of prejudicial prosecutorial
misconduct deprived him of a fair trial. These include: (1) the use of
defendant's aliases at trial and in closing argument; (2) the prosecution's
reference during closing argument to defendant's refusal to reveal the
location of the murder weapon to authorities; and (3) the prosecution's
argument cautioning jurors not to look into defendant's eyes or touch him.
We believe that the trial court acted within its sound discretion in
determining that evidence regarding defendant's liberal use of aliases was
relevant to and probative of the issues of defendant's flight from Illinois
authorities as well as his consciousness of guilt. With respect to the
propriety of the State's closing arguments, we note that the prosecution is
afforded considerable latitude and has the right to make uncharitable comments
and draw unfavorable inferences based upon the evidence. People v. Pasch, 152 Ill. 2d 133, 184 (1992). Furthermore, a jury's verdict will not be disturbed
absent a showing that the prosecution's improper remarks resulted in
substantial prejudice to the defendant and that, without those remarks, the
verdict would have been different. People v. Morgan, 112 Ill. 2d 111, 132
(1986).
We disagree with defendant's contention that the prosecution erred
because of references to defendant's aliases during the trial and argument,
reference to defendant's refusal to reveal the location of the murder weapon
during argument, and cautioning jurors during closing argument not to look
into defendant's eyes or touch him. In particular, we are not convinced after
a review of the entire record that the prosecution's closing arguments, taken
as a whole, substantially prejudiced defendant.
Lastly, defendant argues that his life sentence is both excessive and
unfairly disparate to the acquittal of his codefendant. The standard of
review as to the issue of an excessive sentence is whether the trial court
abused its discretion. People v. Cox, 82 Ill. 2d 268, 275 (1980), citing
People v. Perruquet, 68 Ill. 2d 149, 154 (1977). Additionally, we recognize
that the trial court is in the best position to determine the appropriate
punishment, and its decision is entitled to great weight and deference.
Perruquet, 68 Ill. 2d at 154. The general rule as to the question of whether
defendant's sentence was unfairly disparate is that arbitrary and unreasonable
disparities between the sentences of similarly situated codefendants are
prohibited. People v. Jackson, 145 Ill. 2d 43, 119 (1991); People v. Ashford,
121 Ill. 2d 55, 88 (1988). We note, however, that this general rule applies
only to cases in which both defendants are found guilty.
In the present case, only defendant was found guilty. Faraci's
acquittal, therefore, effectively precludes defendant from invoking the rule
against unreasonably disparate sentencing. We do not find adequate grounds
for reducing defendant's sentence. Based upon the evidence at trial, which,
in our opinion, amply supports defendant's conviction of first-degree murder
under the theory of accountability, we conclude that the trial court did not
abuse its discretion in sentencing defendant to life imprisonment.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
McNULTY, P.J., and RAKOWSKI, J., concur.
SECOND DIVISION
MAY 19, 1998
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 93-CR-12080
)
PAUL MODROWSKI, ) THE HONORABLE
) SAM AMIRANTE,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE COUSINS delivered the opinion of the court:
Defendant, Paul Modrowski, and codefendant, Robert Faraci, were charged
with first-degree murder for the shooting death of Dean Fawcett. Following
simultaneous dual jury trials, codefendant was acquitted while defendant was
convicted. On appeal, defendant argues that reversible error occurred where:
(1) the trial court refused to give curative jury instructions following the
prosecution's misstatement of accountability law; (2) the State introduced
improper prior inconsistent statements as substantive evidence and for
impeachment purposes; (3) the trial judge abused his discretion in refusing
the jury's request for transcripts of a key witness' testimony; (4) defendant
received ineffective assistance when counsel failed to request that the jury
be given counsel's copy of a key witness' testimony and failed to offer a
written prior inconsistent statement as substantive evidence; (5)
prosecutorial misconduct deprived defendant of a fair trial; and (6) the
sentence imposed, life imprisonment, was unfairly disparate and excessive.
BACKGROUND
On January 18, 1993, a woman and her daughter were walking along
railroad tracks near their home in Barrington, Illinois, when they discovered
a human body in the snow near the tracks. The woman immediately called law
enforcement authorities to the scene, where Barrington Police and Illinois
State Police found the body in a frozen state with its head, left arm, and
right hand missing. No identification was found on the body, but the police
found two phone numbers on a note in clothing on the body. The phone numbers
led the police to Nadine Lenarczak (Lenarczak), who provided information that
led police to determine that the body was that of 22-year-old Dean Fawcett
(Fawcett). A missing persons report, DNA testing, and records showing that
Fawcett purchased the shoes and eyeglasses found near the body confirmed that
the victim was Fawcett.
The evidence in the instant case established that, on December 1, 1992,
Fawcett had opened a checking account with a $100 deposit at a bank in Berwyn,
Illinois. From December 22 through December 27, 1992, Fawcett wrote over 40
bad checks against that account. During that period, he was frequently
accompanied by his friends, Briente Palazaeno (known as Brian Palasz), Mr. and
Mrs. Robert and Rose Faraci, Paul Modrowski (Modrowski), and Lenarczak. Each
person in this group enjoyed benefits from the proceeds of Fawcett's check-
writing spree.
At trial, Lenarczak testified that, on December 27, 1992, after
purchasing goods with bad checks along with Robert Faraci (Faraci), Modrowski,
Fawcett, and Palasz, the group returned to Lenarczak's motel room and ordered
food. Faraci and Fawcett left to pick up the food, while Palasz and Modrowski
remained at the motel room, speaking in low voices away from Lenarczak. After
Faraci and Fawcett returned with the food, Lenarczak spoke with Fawcett
privately. She warned him that he would likely get caught for writing the bad
checks. Fawcett replied that he intended to move to California and that, if
he was apprehended by authorities, he would tell the police everything about
the check-writing scheme. Faraci then interrupted the conversation between
Lenarczak and Fawcett and took Fawcett aside. Lenarczak subsequently warned
Faraci that he should arrange for Fawcett to go to California to help ensure
that Fawcett would not implicate everyone else in the check-writing scheme.
Lenarczak also testified that, the following morning, Fawcett telephoned
her from a hotel where he had been staying and complained that his wallet,
identification, and checks were missing. Fawcett stated to her that Faraci
and Modrowski were supposed to pick him up from his hotel and that he
suspected the two men of stealing the aforementioned items. Lenarczak then
went to pick up Fawcett and drove him back to her motel, where he tried to
telephone Faraci. When Fawcett and Lenarczak prepared to leave the motel soon
thereafter, Faraci and Modrowski arrived in Faraci's car. According to
Lenarczak, Modrowski jumped out of the car, opened the passenger door of
Lenarczak's car, and told Fawcett to get out. Modrowski and Fawcett argued
for a short time about the missing wallet and checks, and then Modrowski
pushed Fawcett into the back seat of Faraci's car as Fawcett demanded to be
taken home. Lenarczak stated that that was the last time she saw Fawcett.
Palasz also testified at trial, stating that he, Modrowski, Faraci, and
Fawcett were friends. Palasz' testimony largely corroborated that of
Lenarczak, with some exceptions. He denied, for instance, that Lenarczak told
him that Fawcett might inform the police of the group's illegal activities.
He also denied that there was any discussion about killing Fawcett on December
27, 1992. Palasz did admit, however, that on December 23, he was present
during a conversation with Faraci and Modrowski in which the killing of
Fawcett was proposed. Palasz testified at trial that, while he could not
recall certain details, Modrowski did not state during that conversation that
he wanted Fawcett killed. The State then confronted Palasz with his prior
testimony given before a grand jury in which he gave a detailed account of
statements made by Modrowski that evinced his intent to kill Fawcett. Palasz
acknowledged his grand jury testimony, but argued that the incriminating
statements of the conversation were made by Faraci and that Modrowski was
merely relating Faraci's statements to Palasz at a point in the conversation
when Faraci left Palasz and Modrowski alone. However, Palasz did admit that,
upon Faraci's return to the conversation, there was a mention of killing
Fawcett. Once again, Palasz was confronted with additional prior grand jury
testimony in which he described that Modrowski desired to kill Fawcett.
Rose Faraci (Mrs. Faraci) testified that she married Robert Faraci in
April 1992. She stated that Palasz lived with the couple until she ejected
him. Sometime later, Modrowski moved in to live with the Faracis. Mrs.
Faraci stated that she never knew Modrowski by his true name, but only by the
name Viktor Himmler. Mrs. Faraci acknowledged being a party to the fraudulent
check-writing scheme and admitted that she knew that Fawcett was already dead
when she forged one of his checks on January 6, 1993. Soon thereafter, the
Faracis moved to Florida, followed immediately by defendant. Mrs. Faraci
testified that she and Modrowski rented an apartment there as husband and wife
under the names Rosalie Rugo and Viktor Himmler. All three lived in the
apartment, but Robert Faraci did not sign the lease. Mrs. Faraci testified
that the three stayed in Florida for approximately three months and that the
Faracis subsequently returned to Chicago after Modrowski had returned.
Deputy Chief Investigator John Robertson was one of over 40 witnesses
who testified in the case. Robertson testified that defendant admitted in a
statement while in police custody that he offered Faraci the use of his car to
effectuate the killing of Fawcett and that, before and after the shooting, he
had concealed the 9-millimeter gun that Faraci used to kill Fawcett. At the
close of the proceedings, the jury found Modrowski guilty of first-degree
murder under a theory of accountability. The trial court found that defendant
was eligible for the death penalty, but sentenced him to life imprisonment
without the possibility of parole due to the trial judge's belief that
Modrowski may not have been present during Fawcett's murder. Defendant brings
the present appeal from that judgment.
We affirm.
ANALYSIS
Defendant first contends that the trial court erred by refusing to
declare a mistrial or give a curative instruction after the prosecution
misstated the law of accountability to the jury during rebuttal argument. We
note that defendant failed to make a timely objection following the remarks in
question and waited until rebuttal argument was complete and the jury was
instructed on the law and excused to deliberate before making its motion for a
mistrial. Consequently, defendant waived this issue on appeal, and this
court, therefore, may only review the issue under the standard of plain error.
People v. Hayes, 139 Ill. 2d 89, 143 (1990). The plain error rule is not a
blanket savings provision, however, and is invoked only in exceptional cases
where the evidence is closely balanced or where the alleged error was so
prejudicial that it denied the defendant a fair trial. Hayes, 139 Ill. 2d at
143.
One is accountable for the conduct of another when "[e]ither before or
during the commission of an offense, and with the intent to promote or
facilitate such commission, he solicits, aids, abets, agrees or attempts to
aid, such other person in the planning or commission of the offense." 720 ILCS
5/5-2(c) (West 1992). Although accountability requires that the assistance of
an accused occur prior to or during the commission of the unlawful act, such
assistance may be inferred from activities occurring after the offense. People
v. Ruiz, 94 Ill. 2d 245, 257 (1982); People v. Foster, 198 Ill. App. 3d 986,
993, 556 N.E.2d 1214, 1219 (1990). For instance, the subsequent concealment
or destruction of evidence is a factor that may be considered by the fact
finder in determining whether the accused aided in the commission of the
offense. People v. Johnson, 220 Ill. App. 3d 550, 555, 581 N.E.2d 118, 122
(1991).
In the case sub judice, the prosecutor summarized the evidence
supporting a guilty verdict under the theory of accountability. This evidence
essentially consisted of defendant's discussions of killing Fawcett,
defendant's offering Faraci the use of a gun and his car to facilitate the
murder, and defendant's subsequent concealment of the gun. The prosecution
followed this summation with a verbatim recitation of Illinois Pattern Jury
Instructions, Criminal, No. 5.03 (3d ed. 1992) regarding accountability.
Defense counsel's subsequent closing argument at one point focused upon
the language of the accountability statute requiring that defendant's
assistance must have been "before or during" the commission of the offense.
Defense counsel then argued that defendant's concealment of the gun occurred
after the offense and implied that defendant, therefore, should not be found
guilty under the charge of accountability, since his involvement at most
implicated him as an accessory after the fact.
In rebuttal closing argument, the prosecution responded as follows:
"Now, counsel says, 'Well, wait a second. Accountability happens
if its [sic] before or during the commission of the crime. Hiding
the gun after Dean is killed is after.' Wrong. Folks, the crime
is still happening until they get caught. Hiding the gun in
Florida and taking it with them wherever he went is part and
partial [sic] of the commission of the crime. It's still
happening. *** So the concealment of evidence of the murder
weapon is part of the commission of the offense."
Defendant claims that the State's remarks prejudiced defendant by
leading jurors to believe that one could be found guilty under the theory of
accountability under facts showing that defendant was only an accessory after
the fact. Defendant argues that the prejudice was compounded by the fact that
the prosecution's misstatement occurred during rebuttal closing argument
without a subsequent curative instruction by the trial court or an opportunity
for the defense to respond to the jury. Initially, we agree with defendant
that the above rebuttal remarks concerning accountability and the completion
of the crime of murder were incorrect statements of the law. Our supreme
court recently clarified this issue in People v. Dennis, 181 Ill. 2d 87
(1998), when it stated:
"Based upon the plain language in our accountability
statute, we conclude that, for purposes of accountability, the
duration of the commission of an offense is defined by the
elements of the offense. *** Consistent with our accountability
statute, a defendant may be held accountable for the commission of
[an offense] if, either before or during the commission of the
offense, he aided or abetted [the offender] in 'conduct which is
an element of [the] offense.' " (Emphasis added.) Dennis, 181 Ill. 2d at 101.
Therefore, in the context of criminal accountability, analysis of when the
crime of first-degree murder is complete is determined by the elements of
first-degree murder. In light of this rule, it was patently incorrect for the
prosecution to state that the applicable law deems concealment of a murder
weapon an element of the crime of murder and that the crime is not complete
until the perpetrator is finally apprehended. The commission of an offense is
completed when the elements of that offense are satisfied. See Dennis, 181 Ill. 2d at 102 (commission of armed robbery ends when force and taking, the
elements that constitute the offense, have ceased). The State's rebuttal to
defense counsel's attempt at convincing the jury that defendant's conduct was
that of an accessory after the fact would have been correct if it had stated
that factors such as post-offense concealment may be considered to infer
defendant's involvement in the homicide. Ruiz, 94 Ill. 2d at 257; Foster, 198
Ill. App. 3d at 993, 556 N.E.2d at 1219.
Nevertheless, we disagree with defendant that the prosecution's
incorrect statement of the law "deflected" the jury from its ability to follow
the correct accountability instructions that were given. We note that the
defense read the correct jury instruction on accountability to the jury prior
to the State's rebuttal argument. Additionally, the jurors were given correct
instructions after closing arguments. Moreover, the trial court made repeated
admonishments to the jury about the nature of closing arguments and the fact
that jurors were to rely only on the statements that were based on the
evidence. See People v. Thompkins, 121 Ill. 2d 401, 445 (1988) (prosecutors
are afforded great latitude in closing argument, and improper remarks merit
reversal only when they cause substantial prejudice to defendant). These
factors militate in favor of a determination that defendant was not prejudiced
by the State's incorrect closing argument. See People v. Walker, 230 Ill. App.
3d 377, 395-97, 594 N.E.2d 1252, 1264-66 (1992); Johnson, 220 Ill. App. 3d at
563, 581 N.E.2d at 128. Considering that the jury was presumed to understand
the correct instructions given and that the jury here raised no questions with
respect to the accountability instructions, we conclude that neither curative
jury instructions nor the granting of defendant's motion for a mistrial was
justified.
Defendant relies on People v. Weinstein, 35 Ill. 2d 467 (1966), a case
where the supreme court held that repeated, prejudicial prosecutorial comments
impeded the jury's ability to fairly consider evidence and warranted reversal.
However, Weinstein is inapposite because, in the instant case, the prosecution
uttered a single misstatement of law. Here the prosecutor did err in
argument. Nevertheless, the prosecutor's error was harmless, since the State
introduced substantial evidence against defendant and, in our view, the
evidence against defendant was not close.
Next, defendant contends that the admission of Palasz' grand jury
testimony as substantive evidence and his similar oral statements to police as
impeachment was improper. Defendant argues that it was error to admit Palasz'
prior inconsistent statements, since Palasz' testimony at trial was not
damaging to the State's case. We disagree.
In People v. Weaver, 92 Ill. 2d 545 (1982), the Illinois Supreme Court
explained the circumstances under which a party may introduce a prior
inconsistent statement:
"A court's witness, or any other witness for that matter,
cannot be impeached by prior inconsistent statements unless his
testimony has damaged, rather than failed to support[,] the
position of the impeaching party. The reason for this is simple:
No possible reason exists to impeach a witness who has not
contradicted any of the impeaching party's evidence, except to
bring inadmissible hearsay to the attention of the jury.
Impeachment is supposed to cancel out the witness' testimony. It
is only when the witness' testimony is more damaging than his
complete failure to testify would have been that impeachment is
useful." Weaver, 92 Ill. 2d at 563-64.
We note that, two years after Weaver was decided, our legislature enacted
section 115-10.1 of the Illinois Code of Criminal Procedure of 1963, which
provides in pertinent part:
"In all criminal cases, evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony
at the hearing or trial, and
(b) the witness is subject to cross-examination
concerning the statement, and
(c) the statement--
(1) was made under oath at a trial, hearing, or
other proceeding, or
(2) narrates, describes or explains an event or
condition of which the witness had personal knowledge,
and
(A) the statement is proved to have been
written or signed by the witness, or
(B) the witness acknowledged under oath
the making of the statement either in his
testimony at the hearing or trial in which the
admission into evidence of the prior statement
is being sought, or at a trial, hearing, or
other proceeding ***." 725 ILCS 5/115-10.1 (West
1992).
In the instant case, the State called Palasz as a witness. Palasz gave
testimony favorable to the State's case, including statements corroborating
many details of the check-writing scheme and defendant's presence with Fawcett
during the accompanying shopping sprees. Nevertheless, during direct
examination, Palasz denied that defendant had told him, during the December
23, 1992, conversation, that he wanted Fawcett killed. The State then
confronted Palasz with his prior grand jury testimony, in which Palasz stated:
"We are in Schiller Park outside of Faraci's residence, inside of
Faraci's car. Paul [Modrowski] is in the front seat. I was in
the back seat. Bob [Faraci] went in and get [sic] something from
the apartment. Paul is planning to run from the warrant out of
Du[P]age County. Then he starts saying that he thinks he should
kill Dean Fawcett because of the checks. I tell him right away,
no, that is stupid. *** I said there is no way this is going to
happen. He says, well I think it should. *** He looks at me and
said I really don't like Dean that much."
Palasz then admitted making the above statements, but claimed that defendant
had simply been repeating remarks made earlier by Faraci and that the "he" to
whom Palasz was referring was Faraci, not defendant.
Palasz then testified that, following the aforementioned conversation
with defendant, Faraci returned to the car and resumed a discussion in which
there was a mention of killing Fawcett without any elaboration. The State
once again confronted Palasz with his grand jury testimony wherein the
following colloquy occurred:
"Q. Did he refer or tell people that he should kill Dean
Fawcett?
A. Yes. He basically tried. Paul said he wanted to. Then
I basically talked to Paul, and he said he considered running with
Dean and not doing nothing [sic] to Dean. And Bob was basically
trying to persuade him to kill him."
In addition, when Palasz was unable to recall defendant telling him that he
would make Fawcett "disappear," Palasz was confronted with his grand jury
testimony in which he stated that defendant, indeed, told Palasz that "he's
going to disappear." Again, Palasz claimed that the "he" to whom he had been
referring could have been either defendant or Fawcett.
As to the above statements and inquiries, defendant argues that it was
error to permit the prosecution to use Palasz' grand jury testimony as
substantive evidence under section 115-10.1. In support of his position,
defendant cites Weaver, wherein the prosecution impeached its own witness with
a minor discrepancy in the witness' prior grand jury testimony. The supreme
court in that case held that the grand jury testimony could not be used as
substantive evidence, as there was no existing exception to the hearsay rule
permitting such a use, and that the use also constituted improper impeachment,
since the witness' in-court testimony did not damage the State's case. Weaver,
92 Ill. 2d at 563-65.
In light of the subsequent enactment of section 115-10.1 and subsequent
case law applying that provision, we find defendant's reliance on Weaver to be
misplaced. See People v. Flores, 128 Ill. 2d 66 (1989) (witness' testimony
claiming no memory of facts surrounding alleged offense held to be
"inconsistent," making detailed grand jury testimony admissible); People v.
Morales, 281 Ill. App. 3d 695, 666 N.E.2d 839 (1996).
Furthermore, we are of the opinion that Palasz' testimony at trial can
be properly characterized as inconsistent with his grand jury testimony. His
in-court denials were not merely disappointing to the State's case, since the
State very likely would have been damaged to the extent that the jury believed
Palasz' trial testimony on the issue of defendant's knowledge and involvement
in the planning of Fawcett's murder. Our determination that Palasz' prior
statements were inconsistent is supported by case law holding that, to be
inconsistent and, therefore, admissible as substantive evidence under section
115-10.1, a witness' prior statement need not directly contradict his or her
testimony, but need only have a tendency to contradict it. People v. Lee, 243
Ill. App. 3d 745, 749, 612 N.E.2d 922, 924 (1993). Weaver is inapplicable to
this issue by virtue of its focus on limiting prior inconsistent statements
for impeachment purposes. Indeed, the supreme court in Weaver recognized that
case's limitations by stating that inconsistent grand jury testimony could not
be used as substantive evidence "unless and until we decide that in this State
such prior statements can be used against a defendant as substantive
evidence." Weaver, 92 Ill. 2d at 564-65. Since the complained-of statements
used by the State satisfied all of the requirements of section 115-10.1, we
conclude that their use as substantive evidence was proper.
We are similarly unpersuaded by defendant's contention that he suffered
reversible prejudice from the State's improper impeachment by means of prior
inconsistent oral statements made by Palasz to a detective. During the
State's direct examination of Palasz, the prosecution questioned the witness
with respect to the conversation that allegedly occurred between Palasz and
defendant in Lenarczak's motel room on the night of December 27, 1992, while
Faraci and Fawcett left to pick up carry-out food. Specifically, Palasz
denied that there was any discussion of killing Fawcett during that
conversation. The State also questioned Palasz about which road Palasz had
earlier claimed he had dropped Fawcett off at the following morning. Palasz
testified that he believed that he dropped Fawcett off at River Road.
The State then confronted Palasz with his own prior handwritten
statements given to a detective in the case. The prosecution impeached Palasz
with a statement given to the detective in which Palasz stated that defendant
had told him on the night in question that they had "to get rid of Dean" and
that they "should whack Dean Fawcett." Palasz was also confronted with his
own prior statement wherein he claimed that he dropped Fawcett off the next
morning at Mannheim Road and Lawrence Court.
Defendant once again invokes Weaver in support of his contention that
the above impeachment was improper in light of the nondamaging nature of
Palasz' testimony preceding impeachment. Upon review of the record, we
conclude that the above prior statements were sufficiently contradictory to
justify the State's impeachment. In our view, Palasz' contradictory
statements to the detective did not constitute minor discrepancies compared to
his trial testimony, and, thus, the prosecution's impeachment was not
improper. Assuming, arguendo, that there was any impropriety in the above
impeachment, we deem it harmless error in light of the fact that the key
impeachment here involved the issue of discussions establishing defendant's
intent to have Fawcett killed--testimony that we have concluded was already
properly admissible as substantive evidence. Moreover, considering that
defendant failed to make timely objections and a posttrial motion regarding
the use of the above prior inconsistent statements, this issue may only be
reviewed under the plain error standard. In our opinion, however, the above
impeachment did not deprive defendant of a fair trial in the instant case.
Defendant also argues that the trial court abused its discretion in
refusing the jury's request for transcripts of Palasz' testimony. As a rule,
the issue of whether to grant or deny a jury's request to review evidence or
transcripts of witnesses' testimony lies within the sound discretion of the
trial court and will not be disturbed absent an abuse of that discretion.
People v. Williams, 173 Ill. 2d 48, 87 (1996). Transcripts of testimony may
be made available to the jury if the jury makes such a request and if the
trial court, in its discretion, believes that the transcripts will be helpful
to jurors. Flores, 128 Ill. 2d at 93. Where the jury itself requests the
opportunity to examine transcripts of the testimony, the trial court must
assume that the jury believes that such review would be helpful. People v.
Martin, 84 Ill. App. 3d 822, 826, 406 N.E.2d 49, 52 (1980).
In the instant case, shortly after deliberations commenced, the jury
requested transcripts of Palasz' grand jury testimony as well as the entire
transcript of defendant's trial. The court initially denied the jury's
request, reasoning that the trial had lasted one month, that daily transcripts
had not been ordered, that granting the jury's request would have been too
burdensome on the court reporter's office, and that there would have been
significant delay in the deliberation process. The trial court then noted
that the transcript of Palasz' grand jury testimony had been received as an
exhibit and that portions thereof had been admitted as substantive evidence.
Accordingly, the trial court allowed the jury to inspect a redacted copy of
that portion of Palasz' grand jury testimony received as substantive evidence,
reasoning that, because the jurors had lacked the opportunity to observe
Palasz before the grand jury, the jurors had no recollection of that testimony
upon which to rely. The trial court denied the jury's subsequent requests for
a copy of Palasz' handwritten statement based on the fact that it had not been
admitted into evidence. The court also denied its request for Palasz' entire
grand jury testimony.
We find no error in the trial court's rulings as to the foregoing jury
requests. We do not believe that it was an abuse of discretion for the trial
court to provide a redacted version of Palasz' grand jury testimony reflecting
only that portion submitted as substantive evidence. The same is true of the
trial court's decision not to allow the jury to review Palasz' handwritten
statement, as it was not admitted into evidence. Furthermore, the court acted
within its sound discretion in denying the jury's request to examine the
entire transcript of the trial proceedings. See People v. Blalock, 239 Ill.
App. 3d 830, 841-43, 607 N.E.2d 645, 653 (1993); People v. Creque, 214 Ill.
App. 3d 587, 596-97, 573 N.E.2d 1297, 1303-04 (1991). Despite defendant's
concern that providing the jury with a redacted version of Palasz' testimony
overemphasized statements that were unfavorable to defendant, we note that the
trial court was not obligated to balance its ruling by providing evidence not
admitted. As this court decided in People v. Lee, 243 Ill. App. 3d 1038, 614 N.E.2d 108 (1993), a trial court does not abuse its discretion by allowing
jurors to review a witness' prior inconsistent statements admitted as
substantive evidence while refusing to furnish them a copy of the witness'
contradicted in-court testimony. Therefore, we hold that the trial court
committed no abuse of discretion in its rulings with respect to the jury's
requests for transcripts.
Next, defendant contends that his attorneys provided ineffective
assistance of counsel by failing to request that their copy of Palasz' trial
testimony be sent to the jury in response to its requests, by failing to
preserve for the record the court's erroneous response to the jury's request
for transcripts, and by failing to offer Palasz' handwritten statement as
substantive evidence pursuant to section 115-10.1 (725 ILCS 5/115-10.1 (West
1992)).
In order to establish that one was denied effective assistance of
counsel, a defendant must show that counsel's representation fell below an
objective standard of reasonableness and that there is a reasonable
probability that, "were it not for counsel's unprofessional errors, the result
of the proceeding would have been different." People v. Whitehead, 169 Ill. 2d 355, 380 (1996), citing People v. Albanese, 104 Ill. 2d 504, 525 (1984). In
emphasizing defendant's duty to show prejudice, Illinois courts have noted
that the standard for judging a claim of ineffectiveness must be whether
counsel's conduct so undermined the operation of the adversarial process that
the trial cannot be relied upon as having achieved justice. Albanese, 104 Ill. 2d at 525, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). Defendant argues that the facts
alleged satisfy the aforementioned tests for a claim of ineffective assistance
of counsel. We disagree.
First, there is no evidence that defense counsel actually had in his
possession available copies of the entire trial transcript as alleged by
defendant. Defendant argues that his postsentencing motion, which stated that
such transcripts were "currently available," proves that defense counsel could
have satisfied the jury's requests. However, the fact that a copy of trial
testimony may have been available after sentencing does not show that it was
available at the time the jury requested such transcripts.
Also, even if the defense was able to provide the transcripts, we are
not persuaded that this would have changed the trial court's decision to deny
the jury access to all but Palasz' redacted grand jury testimony. The trial
court's reasoning behind its denials was not limited to its observation that
the court lacked a copy of the trial transcripts. On the contrary, the court
cited a number of factors as the basis for its denials, including its desire
that the jurors rely upon their own recollections of the evidence and trial
testimony during deliberations.
Additionally, we agree with the State that defense counsel's decision to
forego requesting that Palasz' trial testimony be furnished to the jury was
justifiable as an exercise of trial strategy. Simply put, much of Palasz'
testimony was damaging to defendant, as it corroborated a great deal of
Lenarczak's incriminating testimony. Although defendant may question the
strategic value of electing not to offer the defense's copy of Palasz' trial
testimony, we hold that defense counsel's inaction in this regard fell within
the wide spectrum of defense tactics that Illinois courts have long considered
to be an improper basis for supporting a claim of ineffective assistance of
counsel. People v. Guest, 166 Ill. 2d 381, 394 (1995); Flores, 128 Ill. 2d at
106; People v. Hillenbrand, 121 Ill. 2d 537, 548 (1988) ("[m]istakes in trial
strategy or tactics or in judgment do not of themselves render the
representation incompetent"); People v. Madej, 106 Ill. 2d 201, 214 (1985).
Therefore, we conclude that it cannot be said that defense counsel's
representation fell below an objective standard of reasonableness and that the
result of the trial proceedings would have been any different had they offered
to furnish copies of the transcripts to the jury.
Moreover, we find no merit to defendant's claim of ineffectiveness based
on his attorneys' failure to offer Palasz' handwritten statement as
substantive evidence. Defendant asserts that Palasz' handwritten statement,
which contained no mention of defendant's desire to kill Fawcett, was
inconsistent with an oral statement attributed to Palasz by a detective who
testified that Palasz had told him about defendant's desire to kill Fawcett.
We note, however, that "inconsistency" for purposes of section 115-10.1 refers
to the contradiction of a witness' prior statements with that witness' own in-
court testimony. 725 ILCS 5/115-10.1 (West 1992). Here, Palasz' testimony at
trial was that he did not hear defendant express a desire to kill Fawcett.
This was consistent with Palasz' handwritten statement provided to a
detective. The fact that the detective later contradicted Palasz' testimony
by referring to Palasz' prior oral statement claiming that defendant did
express a desire to kill Fawcett does not render Palasz' handwritten statement
inconsistent under section 115-10.1. The reason is that it is the detective's
testimony only that contradicts that of Palasz on the issue of defendant's
intent; Palasz' handwritten statement and in-court testimony remain
consistent. Since Palasz' handwritten statement, therefore, was inadmissible
as substantive evidence under section 115-10.1, defendant's claim of
ineffectiveness based thereon lacks merit.
Defendant also contends that three types of prejudicial prosecutorial
misconduct deprived him of a fair trial. These include: (1) the use of
defendant's aliases at trial and in closing argument; (2) the prosecution's
reference during closing argument to defendant's refusal to reveal the
location of the murder weapon to authorities; and (3) the prosecution's
argument cautioning jurors not to look into defendant's eyes or touch him.
We believe that the trial court acted within its sound discretion in
determining that evidence regarding defendant's liberal use of aliases was
relevant to and probative of the issues of defendant's flight from Illinois
authorities as well as his consciousness of guilt. With respect to the
propriety of the State's closing arguments, we note that the prosecution is
afforded considerable latitude and has the right to make uncharitable comments
and draw unfavorable inferences based upon the evidence. People v. Pasch, 152 Ill. 2d 133, 184 (1992). Furthermore, a jury's verdict will not be disturbed
absent a showing that the prosecution's improper remarks resulted in
substantial prejudice to the defendant and that, without those remarks, the
verdict would have been different. People v. Morgan, 112 Ill. 2d 111, 132
(1986).
We disagree with defendant's contention that the prosecution erred
because of references to defendant's aliases during the trial and argument,
reference to defendant's refusal to reveal the location of the murder weapon
during argument, and cautioning jurors during closing argument not to look
into defendant's eyes or touch him. In particular, we are not convinced after
a review of the entire record that the prosecution's closing arguments, taken
as a whole, substantially prejudiced defendant.
Lastly, defendant argues that his life sentence is both excessive and
unfairly disparate to the acquittal of his codefendant. The standard of
review as to the issue of an excessive sentence is whether the trial court
abused its discretion. People v. Cox, 82 Ill. 2d 268, 275 (1980), citing
People v. Perruquet, 68 Ill. 2d 149, 154 (1977). Additionally, we recognize
that the trial court is in the best position to determine the appropriate
punishment, and its decision is entitled to great weight and deference.
Perruquet, 68 Ill. 2d at 154. The general rule as to the question of whether
defendant's sentence was unfairly disparate is that arbitrary and unreasonable
disparities between the sentences of similarly situated codefendants are
prohibited. People v. Jackson, 145 Ill. 2d 43, 119 (1991); People v. Ashford,
121 Ill. 2d 55, 88 (1988). We note, however, that this general rule applies
only to cases in which both defendants are found guilty.
In the present case, only defendant was found guilty. Faraci's
acquittal, therefore, effectively precludes defendant from invoking the rule
against unreasonably disparate sentencing. We do not find adequate grounds
for reducing defendant's sentence. Based upon the evidence at trial, which,
in our opinion, amply supports defendant's conviction of first-degree murder
under the theory of accountability, we conclude that the trial court did not
abuse its discretion in sentencing defendant to life imprisonment.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
McNULTY, P.J., and RAKOWSKI, J., concur.
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