# People v. Piscotti > Appellate Court of Illinois · August 30, 1985 · 136 Ill. App. 3d 420 URL: https://www.frixlaw.com/law-library/cases/9526533 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PISCOTTI, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** August 30, 1985 - **Citations:** 136 Ill. App. 3d 420; 91 Ill. Dec. 81; 483 N.E.2d 363; 1985 Ill. App. LEXIS 2413 - **Precedential status:** Published - **Opinion:** Concurrence by Pincham - **Judges:** Pincham, Sullivan - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9526533 ## How later opinions describe it (automated extraction) - holding that the State may ask the defendant “ordinarily improper” questions when they are provoked by his direct testimony on the same matter ## Opinion text JUSTICE PINCHAM, specially concurring: I concur in the affirmance of the defendant’s convictions. The majority opinion details the evidence and it need not be here repeated. There was sufficient evidence of the defendant’s guilt to sustain the jury’s guilty verdicts. The evidence of the defendant’s guilt was the defendant’s successive, but increasingly incriminating, oral statements and the testimony of Donald Kamradt. Kamradt’s testimony was that at about 2 a.m. on the night of the murder-arson, he and James Barone, while sitting on Kamradt’s porch a few blocks from the murder-arson scene, observed the defendant and a passenger drive by in the defendant’s car, which Kamradt testified he mentioned to Barone. Kamradt’s testimony was denied by Barone. The record reveals that Assistant State’s Attorney Richard Stock conducted an extensive, highly prejudicial cross-examination of the defendant regarding his friend, Jerome Bokina. During this cross-examination, Stock inferred, in the total absence of any evidentiary support, that the defendant was responsible for Botina’s failure to appear as a State’s witness. In addition, Stock repeatedly asked the defendant his opinion of the veracity and credibility of the State’s witnesses. This was highly improper. (People v. Riley (1978), 63 Ill. App. 3d 176 , 379 N.E.2d 746 .) Both Assistant State’s Attorneys Stock and Cronson in their opening and rebuttal jury arguments infelicitously called the jury’s attention to the deceased’s surviving family and fiance. See People v. Starks (1983), 116 Ill. App. 3d 384, 389 , 451 N.E.2d 1298 . I concur in affirming the judgment of conviction because the able defense attorney neglected to make the appropriate objections to the prosecutorial transgressions of which the defendant complains. In the few instances that the defendant’s attorney did object, he either assigned an inappropriate ground for his objection or the trial judge sustained the objection. My concurrence therefore should not be construed as approval of these prosecutorial transgressions, which the law abhors and resoundingly condemns. The State presented evidence to the jury that the defendant made three varying and progressively inculpating statements, the particulars of which are set forth in the majority opinion. The defendant’s first statement was an alibi — that he was with Jerome Botina in Botina’s home in Midlothian, when the offenses were committed. The defendant’s second statement, in essence, was that in a shoving match arising out of a lover’s quarrel between Karen and him, Karen fell and struck her head against the kitchen counter, that he panicked when he saw that she was dead, poured flammable liquid on her, set her on fire and left, that he thereafter called his friend, Jerome Botina, and that they (Bokina and the defendant) fabricated the alibi which he initially gave. In the defendant’s third statement he essentially related that during a fight with Karen, he struck her about her face with his fist, that he grabbed and held her around her neck to restrain her, that upon releasing her, she fell dead to the floor, that he left the apartment, met with Bokina and told him what had happened, that he and Bokina purchased gasoline with which Bokina set the apartment on fire while the defendant waited in the car, and that Bokina and the defendant then fabricated the alibi. The defendant refused to make a court reported statement. Attorney Ken DeValle, a State’s witness, testified that Jerome Bokina was subpoenaed as a State’s witness, that because Bokina failed to appear he was arrested, that he represented Bokina and upon Bokina’s assurance that he would appear at trial the following day, Bokina was released, that Bokina did not return and that he did not know of Bokina’s whereabouts. The defendant’s father, Felix Piscotti, testified as an alibi witness that the defendant was at home when the offenses were committed. On cross-examination, without any objection from defense counsel, the defendant’s father was asked: “Q. You know who Jerry Bokina is, don’t you? A. Yes. Q. That is a friend of your son’s, right? A. Yes.” The defendant testified in his own behalf. He denied committing the offenses and stated that police officers beat and threatened him in order to elicit statements from him which they told him to make. Without any evidentiary basis for doing so, the prosecutor suggested in his cross-examination of the defendant that the defendant was responsible for Jerome Bokina’s absence as a witness, as follows: “Q. Let us talk about Jerry Bokina for a minute. Where is he today? A. I have no idea, sir. Q. He is your friend, isn’t he? A. He is an acquaintance of mine, sir. Q. Is he your friend, Mr. Piscotti? A. Yes, you can say that. Q. Your father said it yesterday. Was he right, or was he wrong? A. Yes, he is a friend. Q. He is your friend, right? You saw him Monday morning, in this courtroom, didn’t you? A. Yes, I did. Q. You did not tell him yesterday not to come today, did you? MR. McDONNELL: Objection. THE COURT: Sustained. MR. STOCK: Where is he today, Mr. Piscotti? A. I have no idea. MR. McDONNELL: Objection. Asked and answered. THE COURT: Sustained. He said he did not know. MR. STOCK: Where does Bokina live? A. Midlothian. Q. You have not called Bokina in the last day or so, have you? A. No, sir. Q. You saw him Monday morning, in court, though, didn’t you? A. Yes, sir. MR. McDONNELL: Objection. This has been gone over. THE COURT: He said yes. Asked and answered.” (Emphasis added.) Again, in the complete absence of any evidence, the prosecutor in another instance pursued the following improper examination of the defendant: “Q. Did you go down to Jerry Bokina’s house after you killed Karen— A. No, sir. Q. —and change your clothes? A. No, sir. Q. Did you ever tell the police that? A. No, sir. Q. Did you shave the burnt hair off your arm? A. No, sir. Q. Didn’t you shave the burnt hair off your arm down at Jerry Bokina’s, in Midlothian? A. No, sir. Q. You do not know where Jerry Bokina is today, right? A. No, sir.” (Emphasis added.) This cross-examination was most inappropriate. The prosecutor lacked any evidentiary basis for suggesting that the defendant was responsible for Bokina’s absence from court or that the defendant had shaved the burnt hair from his arm. 1 (People v. Starks (1983), 116 Ill. App. 3d 384 , 451 N.E.2d 1298 .) The prosecutor compounded this cross-examination error in closing argument by prejudicially urging, “Funny, we never get a chance to hear from his good pal, Bokina. We got to hear from his lawyer, but not Bokina. ***. Bokina, we never heard from. We wanted to present him to you.” See People v. Puente (1981), 98 Ill. App. 3d 936, 948 , 424 N.E.2d 775 . I am unwilling to conclude that the aforementioned line of inquiry and jury argument did not influence the jury to return guilty verdicts. It was certainly designed to do so, and only the jurors know whether it did nor did not sway them in arriving at their verdicts. Because defense counsel failed to object, however, the defendant cannot now complain. People v. Jackson (1981), 84 Ill. 2d 350, 358 , 418 N.E.2d 739 . Additionally, Assistant State’s Attorney Stock persistently asked the defendant his opinion of the veracity or integrity of the State’s witnesses. This was highly improper. (People v. Riley (1978), 63 Ill. App. 3d 176 , 379 N.E.2d 746 .) To set forth each instance would unduly lengthen this opinion. 2 A typical example follows: “Q. Let me ask you this, Mr. Piscotti. Did the Assistant State’s Attorney come back into the room and talk to you again? A. He came back again. Q. And at that time, didn’t he tell you that your story that you had just given him did not make sense, in light of what Bokina told him? A. He never told me he talked to Bokina. Q. You never said that. So, the Assistant State’s Attorney got on the witness stand here, under oath, yesterday, and he lied to this jury, didn’t he? A. I am not saying he lied, sir. I do not know if he talked to Bokina. Q. Mr. Piscotti, were you sitting right there when the Assistant State’s Attorney took that stand and he told this jury that after he talked to Bokina, he came in to you and said your story did not make sense because of what Bokina had been telling the State’s Attorney? A. He never said that to me, sir. Q. He did not say that on the stand yesterday? A. He might have said it on the stand, sir, but he did not say it to me, sir. Q. If he did say it on the stand, ASA — State’s Attorney Mor ask is a liar, too, right? A. Yes, sir. Q. So, Vallandingham is a liar; and the Assistant State’s Attorney is a liar, also, right? A. Yes.” (Emphasis added.) Again, I do not conclude that the totality of this improper cross-examination (see appendix B) did not influence the jury. It certainly was designed to do so. But defense counsel’s trial technique not to object precludes this belated complaint on appeal. Nor do I conclude that this cross-examination was properly within the scope of the subject matter inquired into during the defendant’s direct-examination. It should be noted further that Assistant State’s Attorney Stock’s closing argument to the jury cast aspersions against the defendant’s attorney. The impropriety of such prosecutorial denunciations is well settled. (People v. Starks (1983), 116 Ill. App. 3d 384, 394 , 451 N.E.2d 1298 ; People v. Clark (1983), 114 Ill. App. 3d 252, 256 , 448 N.E.2d 926 ; People v. Brown (1983), 113 Ill. App. 3d 625, 630 , 447 N.E.2d 1011 .) Stock argued to the jury: “[Ljadies and gentlemen, Bob McDonnell has been an attorney in this county for a long time. He has walked around these courtrooms for a long time. He has tried lots of cases. And, no matter how good an attorney Mr. McDonnell is — and he is a very good attorney, ladies and gentlemen — Mr. McDonnell is not a magician; he cannot change facts. He cannot change the facts in this case. He was stuck with the facts when he was employed by Mr. Piscotti to represent him. He got the facts the same way we got the facts. He is bound by the facts, and he cannot change them. He can bring Mr. Piscotti in here today, all cleaned up and polished for you folks, with his big beard and his hair cut; and a tie on. He cannot change the appearance of his client to make you people believe that Mr. Piscotti is not the bum that he really is. * * * So, what does Bob McDonnell have to do in representation of his client? He is stuck with the facts; he cannot change the facts. He can polish up the client, and bring him in. That is not enough. He[’s] got to come up with some kind of defense.” (Emphasis added.) This argument undoubtedly influenced the jury. Such an improper argument is not to be judicially condoned. Defense counsel elected to condone it, however, when he did not object to it. Finally, the prosecuting attorneys in their opening and closing arguments to the jury improperly emphasized the victim’s family. (People v. Bernette (1964), 30 Ill. 2d 359, 371 , 197 N.E.2d 436 ; People v. Starks (1983), 116 Ill. App. 3d 384, 389-90 , 451 N.E.2d 1298 ; People v. Hyde (1971), 1 Ill. App. 3d 831, 840 , 275 N.E.2d 239 .) The prosecutors prejudicially issued a warning to the jury that if acquitted, the defendant might murder one of them. Assistant State’s Attorney Cronson stated: “First of all, about Piscotti; he is a liar. Second of all, about this case; that is, that he is guilty of the Murder. There is no question about that. Based on your finding in that regard, it might dawn on you for a moment, you have been sitting in the same courtroom, now, with a murderer, for the past three days. If it does anything to you, makes you feel a little bit uneasy, this is your chance; you can do something about it. You can see to it he does not do it again. You have that opportunity, ladies and gentlemen. You are what stands between him and me and us, and all of us. ***. You know, I heard a lot of talk about rights during this case; the rights of Joseph Piscotti. But I did not hear any talk about the rights of Karen Przekwis. What about her right to lead a life free of fear from being preyed upon by people like that? What about her right to marry, to own a home, to have children, to enjoy Christmas with her family? What about those rights? I did not hear anything about those rights. You have got some rights, too, ladies and gentlemen. I ask that you exercise those rights, and you find him guilty of these crimes.” (Emphasis added.) Assistant State’s Attorney Stock similarly argued in closing: “Karen Przekwis is dead. I would like nothing better than to bring her in and let her tell *** how she did not get her rights. * * * We heard about his rights; his right to a phone call, his right to call his father. He got his rights. He got his sandwich; he got his pop; he got his rights. He got his Miranda Rights. What rights did Karen get? Did Karen get a sandwich before he choked her to death? Did Karen get a sandwich before he beat her to death? Did Karen get her Miranda Rights before he smashed her throat? Did she get her rights before he threw gas on her, and torched the entire apartment?” It is quite apparent that these inflammatory arguments served their purpose of persuading the jury to find the defendant guilty. Neither argument, in my judgment, was invited or was an appropriate response to defense counsel’s argument. But again, no objections were made. The above-mentioned prosecutorial tactics came perilously close to irreparably tarnishing the jury’s verdicts and unquestionably would have done so had defense counsel appropriately objected to them. Having made the trial strategy decision not to object, the defendant is bound by it. I do not conclude that the hideous nature of the crimes — the beating and strangulation of the deceased and the arson of the premises in which other tenants were present — validated the prosecutor’s inflammatory jury arguments. But for the reasons stated, I concur in the affirmance of the defendant’s convictions and sentences. Appendix a Excerpts of Assistant State’s Attorney Stock’s cross-examination of the defendant without any evidentiary basis. “Q. When she [Karen Przekwis] had her back to you, and your arm was around her neck, how tall was she then? A. I have no idea. That was not me, sir. Q. Would five-eight sound about right? A. I am not sure, sir. * * * Q. You had a beard then, right? A. Yes. Q. When did you shave off your beard? Was it for the jury? MR. McDONNELL: Objection. THE WITNESS: No, sir. I shaved- THE COURT: The answer is no. . THE WITNESS: -I saved [sic] it off. MR. STOCK: Before this trial started? A. I shaved it off when I was in the County, when I was under custody. * * * Q. You got a motorcycle, Mr. Piscotti— MR. McDONNELL: Objection. THE WITNESS: No, sir. THE COURT: Sustained. Irrelevant. MR. STOCK: Bokina got a motorcycle? MR. McDONNELL: Objection. I would ask to be heard, now, Judge. THE COURT: Sustained. It is irrelevant. Mr. McDONNELL: Counsel keeps asking the same type of questions. Apparently, he does not believe in your Honor’s ruling. * * * Q. Let me show you what has been marked People’s Exhibit Seven, for identification. Is that a picture of Karen? A. I do not know who that is, sir. MR. McDONNELL: Objection. MR. STOCK: You do not know who that is? A. No, sir. Mr. McDONNELL: Objection. I have a motion. THE COURT: He does not know who it is. MR. McDONNELL: I have a motion, your Honor. MR. STOCK: Is that the way she looked when you left the apartment? Is that the way she looked when you left the apartment? A. I was never in the apartment.” Appendix b Excerpts of Assistant State’s Attorney Stock’s cross-examination of the defendant as to his opinion of the veracity of the State’s witnesses. Q. And you told them how Rick Sanders and Karen Przekwis used to fight all the time, didn’t you? A. I did not say that. Q. So, the cops were making that up? A. I did not say they fought all the time. Q. Did you ever tell the police that Rick Sanders once grabbed Karen Przekwis by the throat? A. No, I did not. Q. So, the police are imagining that, right? A. Yes, sir. * * * Q. Some time that evening, [of the defendant’s arrest] you had the opportunity to talk to your friend, Jerry Bokina, didn’t you? A. What evening is this, sir? Q. While you were in the police station. A. No, sir. Q. You never talked to Jerry Bokina? A. No, sir. Q. So, the cops are lying about that, too, right? A. I never talked to Jerry Bokina in the police station. * * * THE COURT: This is Cross, Counsel. MR. STOCK: Mr. Piscotti, did you see Bokina in the police station? A. I seen him in the police station, yes, I did. Q. Did they bring him into the room with you? A. Yes. Q. Did you talk to Bokina in the police station. A. No, I did not. Q. So, when the police officers say that you told Bokina to forget about the alibi and tell them what happened, they have to be lying, don’t they? A. Yes, they are. * * * Q. Now, did you ever tell the police that you were with Bokina, playing cards, that night? A. No, sir. Q. Did you ever tell the police that you were with your parents, playing cards, that night? A. Yes, sir. Q. So, the police made up Bokina? A. Jerry Bokina? Q. Did you understand my question, Mr. Piscotti? Did the police make up Bokina? MR. McDONNELL: It is an impossible question to answer. THE COURT: Sustained. MR. STOCK: Did the police make it up, your statement that you were with Bokina, playing cards? A. Yes, they did. * * * Q. Did you tell the police at that time that after you had strangled Karen, you called Jerry Bokina, and told him to come and pick you up? A. I never said that, sir. I never called him. Q. Well — So then, when the Assistant State’s Attorney said that was your second story, he is lying again right? A. Yes, sir. * * * Q. Did you tell the State’s Attorney that you were with Bokina after the fire was set, or during — while the fire was set? A. This is what the police told me to say. Q. Did you say that to the State’s Attorney? A. Yes. Q. So, when he got on the stand and said that he did not lie, did he? A. He lied, sir, because I never said that willingly. * * * Q. Did you, or didn’t you, tell the Assistant State’s Attorney, in the first conversation, the one you screwed up, the first conversation with the Assistant State’s Attorney, that after you killed Karen Przekwis, you found some flammable liquid in the apartment, and poured it on her body, and set her on fire, and then you ran away and called Bokina? Did you, or didn’t you, say that to the State’s Attorney? A. No, sir. Q. So, when he got up there and said that, he lied, right? A. Yes, sir. * * * Q. Did the Assistant State’s Attorney tell you to say where you bought the gas? A. No, sir. They never mentioned nothing about the gas. Q. Nothing about gas? A. Not to me, sir. Q. So, the police made up the gas, right? A. I do not know if they made it up, sir. Q. Well, you heard the Assistant State’s Attorney testified that you told him you bought the gas at a gas station on Damen. A. No, sir. * * * Q. I am talking about on the stand yesterday. You were sitting right there, weren’t you? A. I heard him say that. Q. That was a lie, too? Was that a lie, or did the police beat that part out of you, too? A. I never said that, sir. Q. Okay. So then, that was an outright lie? A. Yes, sir.” (Emphasis added.) Other instances of the prosecutor’s inflammatory cross-examination of the defendant in the total absence of any evidentiary support are set forth in appendix A. Excerpts of the State’s cross-examination of the defendant on his opinion of the veracity of tiie State’s witnesses are set forth in appendix B. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9526533. Public record. Not legal advice.