Petition — Carbona v. Illinois
Supreme Court brief1976
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No. 75-889‘
Supreme Court, U. & £ .
7 i FILED
Iu the ‘f -DEC 23. 1975
Supreme Court of the Huited Plates. JR., CLERK
Ocroser Term, 1975
RUTHE CARBONA,
Petitioner,
PEOPLE OF TEE STATE OF ILLINOIS,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT
JULIUS LUCIUS ECHELES
CAROLYN JAFFE
35 East Wacker Drive
Chicago, Llinois 60601
Attorneys for Petitioner
—————— a miniememminmmemninneieemieimiaieiaenmmmmeemaneeenmemimmmemmamennid
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
PAGE
Judgments and opinion below 2.0... .cececeeeeeceeeeeeeeeeees 1
I I siticteittitiststetenitneniiaiitinsitntee 2
Constitutional provisions, statutes and rules involved.. 2
Questions re ee STD einisineeshbisivisiesiieininiiteiotiitee 3
Raising the federal questions ~......................:---:-s-+eeem eee 4
IIE Sema a a 5
Reasons for granting the Writ -2.0.2.22....--22....s-eeceeeeeeeeeee 7
IE iticinniciiieeiilbiuitieiiiceicbibiiibiattaripiendaniia - 7
1. Petitioner was deprived of her constitutional
INDEX
right to fair trial by the jury’s exposure to a
prosecutor’s testimony as to his personal opinion
of petitioner’s guilt, and by final argument
of the trial prosecutor as to his personal opinion
that prosecution witnesses told the truth ...........
Petitioner’s constitutional rights were violated
when the jury was informed that, after advise-
ment of rights, petitioner declined to give a
<< i (Cg EERE ECE ET
Petitioner’s in-custody statement was admitted
in evidence against her in violation of her con-
stitutional rights, where her substantially iden-
tical statement, given to the same officer shortly
prior thereto, had been suppressed because she
had not been warned of her rights as required
by Miranda v. Arizona. The Appellate Court
improperly has concluded that petitioner’s al-
leged waiver preceding and accompanying the
second statement was constitutionally valid ....
14
15
PAGE
4. Petitioner’s due process right to a fair trial was
abridged by the trial court’s refusal to instruct
on her theory of the case. The Appellate Court
failed to rule upon the constitutional issues
raised regarding petitioner’s being precluded
effectively from presenting her theory of the
case—accident or misadventure—to the jury .... 19
ITED. <cnsnticccsicnssnnteocnsinciniisisisieibaapiiinainssineiiaginiiaiialiideiias 22
Appendix A—Opinion of the Appellate Court ....... -App. 1
Appendix B—Order of Appellate Court denying
I TE DR scccticcreinncesccicccanniiomssonsieiia App. 37
Appendix C—Order of lllinois Supreme Court
denying petition for leave to appeal ................ App. 38
AUTHORITIES CITED
Cases
Baker v. United States, 357 F.2d 11 (5 Cir. 1966) ..... 14
Bollenbach v. United States, 326 U.S. 607 (1946) ..._... 8
Berger v. United States, 295 U.S. 78 (1935) 0.000000... . &
Chambers v. Mississippi, 410 U.S. 284 (1973) .._.. 19, 21
Chapman v. California, 386 U.S. 18 (1967) ................ 7, 13, 14
Cool v. United States, 409 U.S. 100 (1972) 0.20... 21
Dugan Drug Stores v. United States, 326 F.2d 835 (5
GT istichicntmaiiacinietialliie tae ae ca. 10
Gradsky v. United States, 373 F.2d 706 (5 Cir. 1967) ..10, 11
Greenberg v. United States, 280 F.2d 472 (1 Cir. 1960) 10
Griffin v. California, 380 U.S. 609 (1965) 0000. 14
Hall v. United States, 419 F.2d 582 (5 Cir. 1969) ........ 10, 11
ili
PAGE
Harney v. United States, 407 F.2d 586 (5 Cir. 1969) .... 17
Harrison v. United States, 392 U.S. 219 (1968) ........ 18
Hizel v. Sigler, 430 F.2d 1398 (8 Cir. 1970) .........0..2W... 18
Holt v. Virginia, 381 U.S. 131 (1967) ~............00......... 19
Kotteakos v. United States, 328 U.S. 750 (1946) -........... 7,13
Levine v. United States, 261 F.2d 747 (D.C. Cir. 1958) 20
Miranda v. Arizona, 384 U.S. 486 (1966) —............. 14, 16
Moore v. United States, 401 F.2d 533 (9 Cir. 1968) ....16, 18
Morris v. United States, 326 F.2d 192 (9 Cir. 1963) ... 21
People v. Blissitt, 12 Ill.App.3d 551, 299 N.E.2d 562
EB FE. cnteicctntennnserttitenntmnnnnneneicipiniitiniinimadtiagens 9
People v. Mostafa, 5 Ill.App.3d 158, 273 N.E.2d 846
8. —Eyyy “— —
South Dakota v. Long, 465 F.2d 65 (8 Cir. 1972) _.. 17
Strauss v. United States, 376 F.2d 416 (5 Cir. 1967) . 20
Sullins v. United States, 389 F.2d 985 (10 Cir. 1968) .. 16
United States v. Collier, 313 F.2d 157 (7 Cir. 1963) ... 21
United States v. DeLoach, 504 F.2d 185 (D.C. Cir.
SUID cusluinniccieninacsiseconeiontiiniatanutatieenetitiiabesitainaneets 20
United States v. Goodwin, 492 F.2d 1141 (5 Cir. 1974) 10
United States v. Grimes, 413 F.2d 1376 (7 Cir. 1969) .. 20
United States v. Hale, 419 U.S. 1045 (1975) 0.02... 14
United States v. Handman, 447 F.2d 853 (7 Cir. 1971) 10, 11
United States v. Jenkins, 440 F.2d 574 (7 Cir. 1971) ... 16
United States v. Lamerson, 457 F.2d 371 (5 Cir. 1972) 10
iv
| PAGE
United States v. Martinez, 487 F.2d 973 (10 Cir. 1973) 11
United States v. Matos, 444 F.2d 1071 (7 Cir. 1971) .... 14
United States v. Mullings, 364 F.2d 173 (2 Cir. 1966) . 18
United States v. Nielsen, 392 F.2d 849 (7 Cir. 1968) ..14, 18
United States v. Pierce, 397 F.2d 128 (4 Cir. 1968) ...... 17
United States v. Phillips, 217 F.2d 435 (7 Cir. 1955) .... 20
United States v. Torrence, 480 F.2d 564 (5 Cir. 1973) .. 21
United States v. Toscano, 166 F.2d 524 (2 Cir. 1948) .. 10
United States v. Tucker, 267 F.2d 212 (3 Cir. 1959) .... 10
United States ex rel. Doss v. Bensinger, 463 F.2d 576
i) nN pe 18
United States ex rel. Williams v. Twomey, 467 F.2d
ee) SS een 17
Walker v. United States, 404 F.2d 900 (5 Cir. 1969) ... 14
Washington v. Texas, 388 U.S. 514 (1967) 0000... 19
Westover v. United States (companion case to Miranda
v. Arizona), 384 U.S. 436, 494-97 (1966) 0000 17
Other Au: aorities
United States Constitution, Amendment V ..._.. 2, 3, 14, 16
United States Constitution, Amendment VI ........ 2, 3, 14, 16
United States Constitution, Amendment XIV (due
BUCREEDD — xcscssreencssssvessentenainememaaae 2, 9, 10, 13, 19, 21
BB ULC. BETES) cacccsccescesasctsecescesesmsssntesmmuaisuialaniananane 2
UB. Gepremme Court Bembe Fe acccctsicesnssesmeientvcinaieian 2
Illinois Supreme Court Rule 451(a), Chap. 110A, see.
Ga fad, TEE. Tae. GARB, niniccerenscsstvencencceneneeee 3, 19, 21
In the
Supreme Cowt of the United States
Ocroser Term, 1975
No.
RUTHE CARBONA,
: Petitioner,
vs.
PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT
Petitioner, Ruthe Carbona, respectfully prays that a
Writ of Certiorari be issued to the Appellate Court of
Illinois, First District, to review its decision affirming
judgment of conviction in the Cireuit Court of Cook Coun-
ty, Illinois, adjudging petitioner guilty of murder.
Judgments and Opinion Below
On April 7, 1975, the Appellate Court of Illinois, First
District, First Division, rendered an opinion affirming
petitioner’s conviction, No. 59299, reported at 27 Ill.App.
3d 988, 327 N.E.2d 546 (1 Dist. 1975). A copy of the Ap-
pellate Court’s opinion is attached hereto as Appendix A.
The Appellate Court denied petitioner’s timely petition
for rehearing on May 15, 1975. (App. B) A petition for
leave to appeal to the Illinois Supreme Court, timely filed,
was denied on September 25, 1975, No. 47646. (App. C)
Jurisdiction of this Court
The judgment sought to be reviewed (the Illinois Su-
preme Court’s denial of the petition for leave to appeal)
was entered on September 25, 1975. This petition for Writ
of Certiorari is filed within 90 days from said denial.
Jurisdiction of this Court is invoked under 28 U.S.C.
1257(3) and Rule 22 of the Rules of this Court.
Constitutional Provisions, Statutes and Rules Involved
The Fifth Amendment to the United States Constitution
provides, in pertinent part:
‘*No person... shall be compelled, in any criminal
case, to be a witness against himself, nor be deprived
of life, liberty or property, without due process of
ee
The Sixth Amendment to the United States Constitu-
tion provides, in pertinent part:
‘*In all criminal prosecutions the accused shall en-
joy the right to a... trial by an impartial jury... ;
. . » to have compulsory process for obtaining wit-
nesses in his favor, and to have the Assistance of
Counsel for his defense.’’
The Fourteenth Amendment to the United States Con-
stitution provides, in pertinent part:
‘Section 1. ... [NJor shall any State deprive any
person of ... liberty ..., without due process of
law;..”’
ee
3
_ Illinois Supreme Court Rule 451(a), Chap. 110A, sec.
451(a), Ill. Rev. Stat., provides, in pertinent part, as fol-
lows:
‘*(a) Use of IPI-Criminal Instructions; Require-
ments of Other Instructions. Whenever Llinois Pat-
tern Instructions in Criminal Cases (IPI-Criminal)
contains an instruction applicable in a criminal case,
giving due consideration to the facts and the govern-
ing law, and the court determines that the jury should
be instructed on the subject, the IPI-Criminal instruc-
tion shall be used, unless the court determines that it
does not accurately state the law. Whenever IPI-
Criminal does not contain an instruction on a subject
on which the court determines that the jury should be
instructed, the instruction given on that subject
should be simple, brief, impartial, and free from argu-
ment.’’
Questions Presented for Review
1. Was petitioner deprived of her constitutional right
to a fair trial when the prosecution presented the testi-
mony of the investigating prosecutor that he recommended
that a murder charge be placed against petitioner, thereby
advising the jury of his opinion as to petitioner’s guilt,
and when the trial prosecutor, in closing argument, per-
sonally vouched for the credibility of the State’s wit-
nesses?
2. Were petitioner’s Fifth Amendment and due pro-
cess rights violated when the jury was informed that,
after advisement of rights, petitioner declined to give a
‘*homicide statement’’?
3. Is the decision of the trial and Appellate courts
herein—that petitioner waived her Fifth and Sixth
Amendment rights prior to giving a statement which was
4
used against her at trial—contrary to controlling consti-
tutional principles concerning the standards applicable
for determining whether an alleged waiver of constitu-
tional rights is knowingly and understandingly made, upon
the facts herein, where:
The statement which the court refused to suppress
had been preceded by a substantially identical state-
ment which the court had suppressed, and both were
given to the same officer while petitioner was in his
continuous custody; and
The evidence also demonstrated that petitioner was
hysterical, ingested tranquilizers, and was not specifi-
cally asked whether she understood the rights of
which she had been advised prior to giving the second
statement?
4. Was petitioner deprived of her due process right to
a fair trial when the court refused to instruct the jury as
to her theory of the case—accident or misadventure—when
there was evidence supportive of such theory?
5. Did the State reviewing court’s manner of resolving
each of the above issues (Questions 1 through 4) comport
with this Court’s pronouncements concerning the appli-
cable criteria for assessing constitutional error, where the
Illinois Appellate Court did not state that it found each
asserted error to be harmless beyond a reasonable doubt?
Raising the Federal Questions
Petitioner raised each of the within issues in the trial
court. That court denied her motion to suppress her state-
ments; overruled objections and motion for mistrial di-
rected to former Asst. State’s Attorney Lindmark’s testi-
mony that he recommended that murder charges be filed;
refused to instruct the jury on the defense theory of acci-
dent; overruled objections to Lindmark’s testimony that
—s <a ee
5
after advisement of her rights, petitioner declined to give
him a homicide statement; and overruled defense objec-
tions to, and a motion for mistrial based upon, the prose-
cution’s closing argument. Each of these issues was fur-
ther presented to the trial court by way of petitioner’s
post-trial motion for new triai, which the court denied.
Each of the constitutional issues presented herein was fully
briefed and argued in the Appellate Court and submitted
to the Illinois Supreme Court in the petition for leave to
appeal.
Further, petitioner urged in her petition for rehearing
to the Illinois Appellate Court and in her petition for
leave to appeal! to the [Illinois Supreme Court that the Ap-
pellate Court had failed properly to consider the within
issues on their constitutional merits, but rather, had con-
cluded the constitutional errors as ‘‘harmless’’ based upon
its perception of the evidence as having been sufficient to
sustain conviction, in violation of constitutional standards
as set forth by this Court.
Statement of the Case
Petitioner was indicted (No. 72-1024) for murder. (A.
1)? Count 1 alleged that on Dec. 22, 1971, she intention-
ally shot and killed [her husband] Joseph Carbona, with-
out legal justification (A. 1); count 2 alleged that she shot
him knowing that this created a strong probability of his
death (A. 2). While not relying on self-defense or man-
slaughter to justify or mitigate any homicide, (A. 28),
petitioner’s theory was that following an affray during
which the deceased threatened her and struck her with
“R.” refers to the Common Law Record, contained as the first
portion of Volume 1 of the Record on Appeal, “A” refers to
Petitioner’s Abstract filed in the Appellate Court.
6
a cocked 357 Magnum and intentionally backed an auto-
mobile into her in the family’s driveway, she attempted to
prevent him from leaving their abode with his belongings;
when he was descending the stairs from the second floor
to the first, with clothing over one arm and the cocked
Magnum still in his hand, she tugged at his arm, and he
somehow tripped, the gun went off, and he fell to the bot-
tom of the stairs—in other words, that Joseph Carbona
met his death through accident or misadventure. (A. 28)
The jury found petitioner guilty upon count 2, (A. 2),
and the court declared a mistrial as to count 1, then nolled
by the State. (A. 2) Petitioner’s motions for a new trial
(A. 2) and in arrest of judgment (A. 2) were denied. (A.
2) After a presentence investigation (R. 103-04, A. 2) dis-
closing no prior criminal record, the court sentenced peti-
tioner to 20-60 years imprisonment. (A. 3)
Specific facts necessary for an understanding of each
Point raised in this petition are set forth within the re-
spective Points and are not repeated herein to avoid un-
necessary duplication.
REASONS FOR GRANTING THE WRIT
Introduction
In its opinion affirming petitioner’s conviction, the Ap-
pellate Court has failed to give due and proper considera-
tion to the constitutional issues raised in her appeal, as
set forth in this Petition, and, moreover, appears improp-
erly to have concluded certain errors as ‘‘harmless’’ based
solely upon its perception of the evidence as having |)een
sufficient to sustain the conviction.* Moreover, errors of
constitutional magnitude have been deemed not to require
reversal although the Appellate Court has not declared,
beyond a reasonable doubt—as is required by applicable
United States Supreme Court decisions—that such errors
could not have contributed to the conviction. Chapman v.
California, 386 U.S. 18, 24 (1967).
Even if the evidence may be deemed legally sufficient,
it was not so overwhelming that the jury could not rea-
sonably have reached the opposite result, but for the seri-
ous prejudicial errors of constitutional magnitude com-
plained of herein. Moreover, while ‘‘The jury was not
required to search out potential explanations compatible
with innocence, and elevate them to a status of reasonable
doubt,’’ (App. A, p. 17), this Court must recognize that
2Assuming, arguendo, that the evidence was legally sufficient to
support conviction, petitioner maintains that the constitutior.al errors
urged herein—individually or colléctively—may have contributed
to the conviction and thus require reversal. For even if the evidence
was, technically speaking, “legally sufficient,” the serious, substan-
tive errors herein complained of may well have induced the jury to
convict. See Kottakos v. United States, 328 U.S. 750, 763-65
(1946).
8
such explanations were indeed available and might have
caused one or more jurors to entertain a legitimate, rea-
sonable doubt precluding conviction, had it not been for
the infecting presence of serious, prejudicial errors of
constitutional proportions. This Court should not—as the
Appellate Court has done in the case at bar—give control-
ling emphasis to its own view of the evidence as having
been legally sufficient. In the inimitable language of Mr.
Justice Frankfurter, speaking for the Court:
‘*In view of the Government’s insistence that there
is abundant evidence to indicate that ... [defendant
was guilty], it may not be amiss to remind that the
question is not whether guilt may be spelt out of a
record, but whether guilt has been found by a jury
according to the procedure and standards appropri-
ate for criminal trials... .
‘*. , . All law is technical if viewed solely from con-
cern for punishing crime without heeding the mode
by which it is accomplished. . . . From presuming
too often all errors to be ‘prejudicial,’ the judicial
pendulum need not swing to presuming all errors to
be ‘harmless’ if only the appellate court is left with-
out doubt that one who claims its corrective process
is, after all, guilty. In view of the place of import-
ance that trial by jury has in our Bill of Rights it is
not to be supposed that Congress intended to sub-
stitute the belief of appellate judges in the guilt of
an accused, however justifiably engendered by the
dead record, for ascertainment of guilt by a jury
under appropriate judicial guidance, however cumber-
some that process may be.’’ Bollenbach v. United
States, 326 U.S. 607, 614 (1946).
We respectfully urge that these concepts should have—
but in fact, unfortunately, did not—govern the Appellate
Court’s consideration of petitioner’s appeal. We submit
that they should vow control consideration of this Peti-
tion for Certieram, and, upon appropriate consideration,
7 &
9
that Certiorari should be allowed, and petitioner’s con-
viction be reversed, or reversed and remanded.
1,
Petitioner was deprived of her constitutional right to a
fair trial by the jury’s exposure to the testimony of a prose-
cutor, as to his personal opinion of petitioner’s guilt, and by
final argument of the trial prosecutor as to his personal
opinion that prosecution witnesses told the truth.
Former Assistant State’s Attorney James Lindmark
was permitted to testify that, in his then official capacity,
following his investigation and interview with petitioner,
he recommended that a charge of murder be placed against
petitioner. (A. 15)
This violated petitioner’s right to a fair trial, as has
explicitly been held in People v. Blissitt, 12 Ill.App.3d 551,
299 N.E.2d 562 (1 Dist. 1973), which the Appellate Court
inapplicable.®
This Court has not yet had occasion to rule on the pre-
case issue; granting certiorari herein would present an
ideal opportunity for the Court to speak on the constitu-
tional issue whether such prosecutorial opinion testimony
may be admitted consistent with due process of law.
3 While the Appellate Court indicates that the issue might have
been considered waived for failure properly to make timely objec-
tion below on the grounds now asserted, (App. A, pp. 26-27), it
nonetheless has reached and decided the issue on the merits.
Moreover, it should be noted that People v. Blissitt, supra, was
decided on June 21, 1973, while trial in the case at bar commenced
on April 24, 1973, thus explaining counsel’s failure specifically to
raise such issue at trial. While grounded upon constitutional prin-
ciples of fair trial, Blissitt was a case of first impression in Illinois on
the precise issue regarding a prosecutor's recommendation of what
charge to file. See also People v. Mostafa, 5 Ill.App.3d 158, 274
N.E.2d 846 (1 Dist. 1971).
10
The error of presenting to the jury the personal opin-
ion of the former prosecutor was aggravated when the
trial prosecutor argued to the jury that they should rely
on his personal opinion that the State’s witnesses were
truthful. The prosecutor actually told the jury that he
wouldn’t ‘‘lay his law license on the line’’ if he did not
believe that the prosecution witnesses were truthful. (A.
31) It is hard to imagine a clearer way of conveying to
the jury, not only the prosecutor’s personal belief in his
witness’ veracity, but also that personally, based upon his
own integrity, he vouched for their credibility.
Yet the Appellate Court found the argument justified
by the doctrine of invited reply. (App. A, p. 32) This
theory cannot be utilized where its application resu!lts—
as here—in denial of due process.‘
The argument in the instant case is identical in effect
to that condemned in such cases as United States v. Lam-
erson, 457 F.2d 371 (5 Cir. 1972); Greenberg v. United
States, 280 F.2d 472 (1 Cir. 1960); Gradsky v. United
States, 373 F.2d 706 (5 Cir. 1967); Hall v. Umted States,
419 F.2d 582 (5 Cir. 1969) ; and United States v. Handman,
447 F.2d 853 (7 Cir. 1971).
In Greenberg v. United States, supra, 280 F.2d at 474-
75, the court stated:
‘*Rule 15 of the Canons of Professional Ethics of
the American Bar Association reads,
* Cases reversing for prejudicial prosecution argument and con-
duct depriving defendant of a fair trial, despite defense provocation
thereof, include: United States v. Toscano, 166 F.2d 524, 526-27
(2 Cir. 1948); United States v. Goodwin, 492 F.2d 1141, 1147-48
(5 Cir. 1974); United States v. Tucker, 267 F.2d 212, 214-15 (3
Cir. 1959) ; United States v. Handman, 447 F.2d 853, 856 (7 Cir.
1971); Dugan Drug Stores v. United States, 362 F.2d 835 (5 Cir.
1964).
11
‘It is improper for a lawyer to assert in argument
his personal belief in his client’s innocence or in the
justice of his cause’
* * * To permit counsel to express his personal be-
lief in the testimony (even if not phrased so as to
suggest knowledge of additional evidence not known
to the jury), would afford him a privilege not even
accorded to witnesses under oath and subject to
cross-examination. Worse, it creates the false issue
of the reliability and credibility of counsel. This is
peculiarly unfortunate if one of them has the advan-
tage of official backings. The resolution of question
of credibility of testimony is for impartial jurors and
judges. The fact that government counsel is, as he
says, an advocate is the very reason why he should
not impinge upon his quasi-judicial function. We be-
lieve the cannon to be elemental and fundamental.’’
Accord, Hall v. United States, 419 F.2d 582, 586-87 (4
Cir. 1969); United States v. Handman, 447 F.2d 853 (7
Cir. 1971). See also United States v. Martinez, 487 F.2d
973, 977 (10 Cir. 1973):
‘*[ We caution prosecuting attorneys that in their
closing argument they should not, in an effort to
bolster the credibility of a government witness, place
their own integrity, directly or indirectly, on the
scales. Such is improper .. .”’
In Gradsky v. United States, 373 F.2d 706 (5 Cir. 1967),
the court stated:
‘‘During the argument, the Assistant United States
Attorney said:
‘We offered you Zane and Gilmore, and when
we offer a witness we have to vouch for his credi-
bility. Vouching for his credibility involves some
feeling that the man is telling the truth, .. .
(Emphasis added), by the people, and for the
people, and that the government representatives
don’t put a wtiness on the stand wiless there ap-
12
pears to be some credibility, until he appears to
be a truthful witness. . .’ (Emphasis in original.)
As this court has indictaed in MeMillian v. United
States, 5 Cir., 363 F.2d 165, it is dangerous business
for the prosecuting officer to state to the jury that the
United States government vouches for the honesty or
veracity of its witnesses. In that case, we cited from
Dunn v. United States, 5 Cir., 307 F.2d 883, where, at
page 885, we said:
‘It is improper for counsel to express his per-
sonal opinion or to state facts of his own knowl-
edge not in evidence, and not a part of the evi-
dence to be presented.’
We then stated the test that should be applied to such
a case:
‘The inquiry should be whether the prosecu-
tor’s expression might reasonably lead the jury
to believe that there is other evidence, unknown
or unavailable to the jury, on which the prosecu-
tor was convinced of the accused’s guilt. 363 F.2d
at 169.’’ 373 F.2d at 709-10. (Emphasis added.)
These decisions are an outgrowth of this Court’s pro-
nouncement in Berger v. United States, 295 U.S. 78, 88
(1935), where this Court stated:
‘‘The United States Attorney is the representative
not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially
is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecu-
tion is not that it shall win a case, but that justice
shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim
of which is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness and vigor
—indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones. It
is as much his duty to refrain from improper methods
13
calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just
one.
It is fair to say that the average jury, in a greater
or less degree, has confidence that these obligations,
which so plainly rest upon the prosecuting attorney,
will be faithfully observed. Consequently, improper
suggestions, insinuations and, especially, assertions of
personal knowledge are apt to carry much weight
against the accused when they should properly carry
none.’’
Here, the assertion by the prosecutor of his personal
belief in the integrity of the State’s witnesses, coupled
with the earlier testimony of the former prosecutor that
he recommended that murder charges be filed, deprived
petitioner of a constitutionally fair trial in accordance
with due process of law.
It is impossible for this Court to state beyond a rea-
sonable doubt that the constitutional error of permitting
the jury to hear Lindmark’s testimony as to his recom-
mendation of murder charges and the trial prosecutor’s
argument personally vouching for the credibility of thie
State’s witnesses could not have contributed to the jury’s
verdict, particularly when such error is considered, not
in a vacuum, but together with the other errors of consti-
tutional magnitude claimed in this Petition. Chapman v.
California, 386 U.S. 18, 24 (1967).5 See also Kotteakos v.
United States, 328 U.S. 750, 763-65 (1946).
5 Each of the issues discussed in this Petition for Certiorari is
of constitutional proportion, and the same argument—that is, that
this Court cannot, and the Illinois Appellate Court did not, declare
a belief beyond a reasonable doubt that such error, considered alone
or cumulatively, could not have contributed to the verdict, and there-
fore, that the error may not be deemed “harmless’”—applies to each
such claim of error. For the sake of brevity, such argument is here-
by incorporated by reference into each of the following Points with-
out specifically being noted therein.
14
Petitioner’s constitutional rights were violated when the
jury was informed that, after advisement of rights, peti-
tioner declined to give a “homicide statement.”
The jury, already aware that petitioner had been ad-
vised of her rights, (A. 9), was advised by former Asst.
State’s Attorney Lindmark that she declined to give him
a ‘‘homicide statement.’’ (A. 15) This is error.®
This Court has stated:
‘‘In accord with our decision today, it is impermis-
sible to penalize an individual for exercising his Fifth
Amendment privilege when he is under police custo-
dial interrogation. The prosecution may not, there-
fore, use at trial the fact that he stood mute or claimed
his privilege in the face of accusation.’’ Miranda v.
Arizona, 384 U.S. 436, 468 n.37 (1966).
This position has been reaffirmed in United States v. Hale,
419 U.S. 1045 (1975).
The holding of the Appellate Court rationalizes the
propriety of such testimony herein by stating that since
petitioner in fact did not remain silent and the jury was
aware of this, her ‘‘Fifth Amendment right to be free
irom self-incrimination is not in issue.’’ (App. A, p. 28)
® Reviewing courts consistently have held that this proscription
against commenting upon a defendant’s invocation of Fifth and Sixth
Amendment rights is violated by presenting to the jury evidence
that a defendant, after being warned of his constitutional rights as
required by Miranda v. Arizona, supra, elected to remain silent.
See, ¢.g., Baker v. United States, 357 F.2d 11, 13 (5 Cir. 1966) ;
Walker v. United States, 404 F.2d 900, 902-03 (5 Cir. 1969);
United States v. Nielsen, 392 F. 2d 849, 852 (7 Cir. 1968) ; United
States v. Matos, 444 F.2d 101 (7 Cir. 1971). This result is man-
dated by such cases as Chapman v. California, 386 U.S. 18 (1967),
and Griffin v. California, 380 U.S. 609 (1965).
15
However, that petitioner indeed did make certain state-
ments, intended as exculpatory, during conversations both
with Lindmark and with investigating police officers, can-
not detract from the error of informing the jury that she
refused to make a formal ‘‘homicide stutement’’ denomi-
nated as such.
This Court in Miranda held that a citizen has a right to
stop talking to the authorities at any time. Jd. at 473-74.
And since it is prejudicial error to advise a jury that a sus-
pect refused to answer at all, it is equally prejudicial to ad-
vise a jury that a person who commenced to answer certain
questions, refused to answer others, i.e., declined to give
a ‘‘homicide statement.’’
Petitioner’s in-custody statement was admitted in evi-
dence against her in violation of her constitutional rights,
where her substantially identical statement, given to the
same officer shortly prior thereto, had been suppressed be-
cause she had not been warned of her rights as required
by Miranda v. Arizona.* The Appellate Court improperly
has concluded that petitioner’s alleged waiver preceding
and accompanying the second statement was constitution-
ally valid.
In deciding this issue against petitioner, the Appellate
Court has held that the trial court*’s determination that
she knowingly and voluntarily waived her rights was not
against the manifest weight of the evidence. (App. A, pp. 17-
18) We urge this Court carefully to consider the evidence
* Petitioner’s initial statement to officer Marinelli was suppressed
by the trial court on defense motion. (A. 8-9; See App. A, pp. 5, 18)
16
concerning the asserted waiver,’ and then to consider
whether finding waiver based upon such evidence was con-
stitutionally erroneous as a matter of law and whether in
fact such evidence could satisfactorily establish that know-
ing and intelligent waiver requisite to a valid finding that
constitutional rights have indeed been waived.* We submit
that no valid waiver of petitioner’s Fifth and Sixth Amend-
ment rights can properly be found.
7 Although Officer Marinelli testified at the hearing on the mo-
tion to suppress the statement given at the police station petitioner
“indicated” that she understood her rights, (A. 4), he did not
specifically testify that he asked her whether she understood them,
and had failed to include anything concerning petitioner’s under-
standing of her rights in his testimony at the preliminary hearing.
(A. 4) This casts grave doubt on his later testimony at trial; so
much so, we suggest, that the trial and appellate courts improperly
found that petitioner understood her rights. Petitioner was hysteri-
cal and crying, (A. 5-6, 10); she had to be given tranquilizers, (A.
21); she was in custody with no one present but Marinelli and
Policewoman Duffy when this statement was taken from her. (A.
4) And although Officer Marinelli testified that petitioner “indi-
cated” that she understood her rights, (A. 4), he did not clarify
the manner in which she purportedly so “indicated,” nor did he
testify that he specifically asked her whether she understood her
rights.
® This evidence, see fn. 6, supra, can not suffice to meet the
State’s heavy constitutional burden of showing knowing and intelli-
gent waiver. Miranda v. Arizona, 384 U.S. 436, 475 (1966) :
“If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel... .
“[A] valid waiver will not be presumed simply from the
silence of the accused after warnings are given or simply from
the fact that a confession was in fact eventually obtained.”
See also Moore v. United States, 401 F.2d 533, 534 (9 Cir. 1968) ;
Sullins v. United States, 389 F.2d 985, 988 (10 Cir. 1968); United
States v. Jenkins, 440 F.2d 574 (7 Cir. 1971).
17
Moreover, even if the ‘‘fruit of the poisonous tree’’ ar-
gument cannot independently be considered as a separate
ground for excluding the second statement because such
argument was not specifically raised below, (see App. A,
p. 18), at the very least this Court should consider, as a
factor in determining the constitutional sufficiency of the
evidence to establish waiver as to the second statement,
the fact that the prior, suppressed statement, given with-
out proper warnings, had been made shortly before the
second statement.®
In addition to the factors concerning ‘‘harmless error’’
which are applicable to the other Points raised herein,”
® Petitioner’s second statement was made to the same officer as
the first, about an hour and a half after the first. She was continu-
ously in custody. (A. 8-9)
Although at the initial hearing on petitioner’s motion to suppress
the “second” statement there was no awareness of record of the
existence of the “first,” when later it became evident that a prior
statement had been taken from defendant by the same officer at a
time when Miranda warnings were not, but should have been given,
the second statement should have been suppressed as a product of
the first, unconstitutionally obtained statement. Westover v. United
States {companion case to Miranda v. Arizona), 384 U.S. 436, 494-
97 (1966). See also South Dakota v. Long, 465 F.2d 65, 70 (8 Cir.
1972) ; United States v. Pierce, 397 F.2d 128, 131 (4 Cir. 1968) ;
United States ex rel. Williams v. Twomey, 467 F.2d 1248, 1252
(7 Cir. 1972); Harney v. United States, 407 F.2d 586 (5 Cir.
1969).
Because petitioner’s second statement was not shown to have
been independent of the initial, improperly obtained statement,
and nothing intervened to “purge the taint,” the second statement
should have been suppressed as a tainted fruit of the first.
Alternatively, that it was made to the same officer shortly after
the first must be taken into consideration in determining the valid-
ity of petitioner’s alleged “waiver” of her rights as to the second
statement.
10 See footnote 5, p. 13, supra, and accompanying text.
18
special considerations factually apposite to the instant
Point militating against a finding that the error here was
‘*harmless’’ are set forth below.”
1! Petitioner's decision to take the stand was based upon the
court’s having overruled the motion to suppress her in-custody state-
ment; she thus opened herself up to scathing cross-examination and
opened the door to prejudicial rebuttal evidence being presented by
the State. Had her statement been excluded, as it should have been,
petitioner would not have taken the stand and these other adverse
consequences would not have flowed therefrom.
Moreover, the court’s refusal to instruct upon the law applicable
in a purely circumstantial case (see App. A, p. 34) was no doubt
based upon its regard of petitioner's “statement” as “direct evidence”
so as to remove the case from the otherwise applicable circumstan-
tial evidence rule. And the Appellate Court ruled that testimony as
to admissions allegedly made by petitioner rendered refusal of the
requested instruction proper, (App. A, p. 34); this evidence
came from rebuttal witnesses who could not have been called, had
petitioner not taken the stand.
And most importantly, had the statement been excluded, it is ex-
tremely doubtful that petitioner could have been convicted; for
without the statement, there would have been no competent evidence
implicating her at all.
See United States ex rel. Doss v. Bensinger, 463 F.2d 576, 578
(7 Cir. 1972) ; Moore v. United States, 401 F.2d 533, 534 (9 Cir.
1968).
And it is no answer to say that petitioner waived the right to
raise this argument on appeal by taking the stand and testifying to
the substance of that second statement; for without proof that the
testimony was not induced by wrongful admission of her statement,
her testimony was as much a fruit and a product of that statement
as that statement was of the initial, suppressed one. Harrison v.
United States, 392 U.S. 219 (1968). Cf. United States v. Mullings,
364 F.2d 173, 175 (2 Cir. 1966) (prosecution evidence refuting con-
tents of defendant's improperly admitted statement should not have
been allowed); United States v. Nielsen, 392 F.2d 849, 853 n.3 (7
Cir. 1968) (where statements inadmissible, instructions regarding
them were also improper).
Moreover, taking the stand to explain statements already admitted
in evidence is not equivalent to waiver of the question of the admis-
sibility of the statements. Hizel v. Sigler, 430 F.2d 1398, 1402 (8
Cir. 1970).
o-
19
4
Petitioner’s due process right to a fair trial was abridged
by the trial court’s refusal to instruct on her theory of the
case. The Appellate Court failed to rule upon the constitu-
tional issues raised regarding petitioner’s being precluded
effectively from presenting her theory of the case—acci-
dent or misadventure—to the jury.
While purporting to rule upon the issues presented by
petitioner’s argument concerning improperly given and
refused jury instructions, the Appellate Court specifically
has failed to give any consideration to the constitutional
issues raised by petitioner’s argument. (App. A, pp. 35-36)
A defendant in State criminal proceedings has a due
process right to present defense evidence. Washington v.
Texas, 388 U.S. 514 (1967); Chambers v. Mississippi, 410
U.S. 284, 302 (1973). Inherent therein is the right to
raise relevant issues. Holt v. Virginia, 381 U.S. 131, 136
(1967). And inherent in the right to raise an issue is the
concomitant right to have the jury properly instructed
thereon, see cases cited at p. 20, infra. This Court has not
yet had occasion to rule on this important question of
federal constitutional law.
The trial court refused to instruct pursuant to peti-
tioner’s theory of the case, that is, that if the shooting
occurred because of accident or misadventure, petitioner
should be acquitted; and that one of the matters which
the State must establish to prove its case against peti-
tioner was that the killing was not the result of accident
or misadventure. While the court initially indicated it
would instruct pursuant to petitioner’s requested instruc-
tions, (D. 6 & 7, A. 28), instead the court gave only the
State’s ‘‘issues’’ instruction, (No. 13, IPI 7.02), which
_ 12“TP]” refers to the Illinois Pattern Jury Instructions in Crim-
inal Cases, adopted for use in Illinois by Supreme Court Rule. See
Supreme Court Rule 451(a), Chap. 110A, sec 451(a), Ill. Rev.
Stat.
20
makes no mention of the State having any burden to estab-
lish that decedent’s death was not an accident.
Clearly, if the deceased met his death through accident
or misadventure resulting from his holding a cocked and
loaded gun, petitioner was not criminally culpable.
Where a defendant presents a theory supported by any
evidence, he has a right to have the jury instructed upon
the law applicable thereto, and very slight evidence upon
a given defense theory—even if only the defendant’s own
testimony—requires the giving of relevant instructions.
United States v. Grimes, 413 F.2d 1376 (7 Cir. 1969);*
Levine v. United States, 261 F.2d 747 (D.C. Cir. 1958);
United States v. Phillips, 217 F.2d 435, 440-41 (7 Cir.
1955); see also Strauss v. United States, 376 F.2d 416, 419
(5 Cir. 1967), and cases cited therein. Cf. United States v.
DeLoach, 504 F.2d 185, 189 (D.C. Cir. 1974).
13In Grimes, supra, defendant unsuccessfully sought to have the
jury instructed on his theory of the case—i.e., that his alleged as-
sult on a prison guard was justified in that he was coming to the
defense of another—as to which his own testimony was the only
evidence. The reviewing court reversed, holding:
“(Defendant in a criminal case is entitled to have the jury
consider any theory of the defense which is supported by law
and which has some foundation in the evidence, however ten-
uous.” 413 F.2d at 1378.
‘The court in DeLoach, supra, recognized a defendant’s con-
stitutional “right to have his theory of the case argued vigorously
to the jury.” 504 F.2d at 189. And of course, argument unsupported
by instructions of the court may be worse than no argument at all:
“An argument to a jury, however, on a legal issue, unsup-
ported by instruction to which the defendant was entitled, con-
stitutes an aggravation rather than a mitigation of the harmful
effect of the court’s refusal to instruct.” United States v.
Phillips, 217 F.2d 435, 440 (7 Cir. 1955).
21
Here, petitioner testified that the homicide resulted
from accident or misadventure. (A. 18-21) The requested
instructions, or other adequate instructions by ti.e court on
the subject, should have been given. The court’s failure to
instruct on the subject at all violated petitioner’s due pro-
cess rights.
Moreover, since here, the improperly omitted instruc-
tions (D. Insts. 6 & 7, A. 28) clarified the question of the
State’s burden of proof regarding the defex»« of accident,
and no instructions which were given discussed such bur-
den, the jury may well have improperly considered that
petitioner bore the burden of proving that the shooting
was in fact an accident. Any such shifting of the burden
of proof is constitutionally impermissible. Cool v. United
States, 409 U.S. 100 (1972).
Despite the outward conformity of the instructions
given to the IPI pattern instructions, the instructions to
be given in any particular case must be governed by its
individual factual posture. Moreover, where—as here—no
IPI instruction is applicable, a non-IPI instruction clearly
should have been given. See Supreme Court Rule 451(a),
chap. 110A, sec. 451(a), Ill. Rev. Stat.
And where, as here, the IPI-approved instructions given
did not adequately inform the jury of the elements in-
volved in the defense of accident, and did not inform them
at all concerning the State’s burden of proof as to this
defense, constitutional considerations must take prece-
dence over State procedural rules.
To the extent that application of Supreme Court Rule
451(a) in Illinois discourages trial judges from giving
non-pattern instructions to a defendant’s constitutional
detriment where no pattern instructions cover the subject,
constitutional considerations must take precedence over
the State procedural rule. Chambers v. Mississippi, 410
U.S. 284 (1973).
22
Moreover, instructions can be erroneous, requiring re-
versal, because under the facts of a particular case they
are inadequate—as here—even though in a vacuum they
may correctly state abstract principles of law. See, e.g.,
United States v. Collier, 313 F.2d 157, 159 (7 Cir. 1963);
Morris v. United States, 326 F.2d 192, 194-95 (9 Cir. 1963) ;
United States v. Torrence, 480 F.2d 564, 565 (5 Cir. 1973).
In each case the reviewing court reversed for precisely this
reason.
Conclusion
For any or all of the foregoing reasons, petitioner re-
quests that this Court issue a Writ of Certiorari to review
the judgment of the Illinois Appellate Court, First
District.
Respectfully submitted,
Junius Lucius EcHELEs
CAROLYN JAFFE
Attorneys for Petitioner.
APPENDIX
APPENDIX A*
No. 59299
In THE
APPELLATE COURT OF ILLINOIS
First District — First Division
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
vs.
RUTHE CARBONA,
Defendant-A ppellant.
Mr. PRESIDING JUSTICE BURKE delivered the opin-
ion of the court:
Defendant Ruthe Carbona was indicted and tried for
the murder of her husband, Joseph Carbona. (Ill. Rev.
Stat. 1969, ch. 38, par. 9-1.) A jury found defendant guilty
and she was sentenced to a term of 20 to 60 years impris-
onment. Twelve issues are raised by defendant on appeal.
Defendant contends: (1) that her Miranda rights were
violated: (2) that it was error to admit improper expert
testimony; (3) that it was error to admit ballistics evi-
dence which differed substantially from actual conditions;
(4) that the use of an incomplete diagram of the scene
was prejudicial; (5) that the presentation of improper
rebuttal evidence warrants reversal; (6) that she was en-
titled to allowance of a motion for acquittal after the
State’s case in chief; (7) that it was error to allow a
former assistant state’s attorney to testify to his recom-
*The opinion was entered April 7, 1975. It is printed at 27
Ill.App.3d 988, 327 N.E.2d 546.
App. 2
mendation that murder charges be lodged against de-
fendant; (8) that it was prejudicial to inform the jury of
defendant’s unwillingness to give a homicide statement in
the exercise of her right to remain silent; (9) that the
prosecutor conducted himself improperly during defend-
ant’s cross-examination and during closing argument; (10)
that the jury was improperly interrogated about publicity
concerning the trial; (11) that the jury was improperly in-
structed; and (12) that the evidence failed to prove de-
fendant guilty beyond a reasonable doubt. We will state
the pertinent facts and first consider the question of the
sufficiency of evidence.
On December 22, 1971, at approximately 9:25 a.m., Of-
ficer Robert Buckley responded to an emergency call
over the police radio which directed any patrolling car to
proceed to the home of Lieutenant Joseph Carbona, 1206
Euclid, Mount Prospect. Buckley was the first of several
police officers to arrive at the scene. Upon the hysterical
pleas of the defendant, Buckley entered the front door
of the home. The deceased, Lieutenant Carbona, was lying
on the foyer floor face up with his feet propped two steps
up on the landing of a staircase leading to the second floor
of the house. The lieutenant was fully clothed, wearing
a brown corduroy carcoat, a blue nylon windbreaker un-
derneath, a blue undershirt, and blue trousers. Buckley
observed blood on the deceased’s chest and found a wound
in the chest area of the body. The deceased’s eyes were
half open and the chest wound had apparently stopped
bleeding. Buckley asked the defendant what happened,
and she replied, ‘‘I don’t know. We had a fight.’’ Buck-
ley could not find any signs of life, but immediately called
an ambulance for medical assistance. Buckley observed
a .357 magnum revolver on the fourth stair. He did not
observe or smell any signs of gun powder, nor did he
App. 3
notice any bruises or marks on the face of the defendant.
During cross-examination, Buckley testified that he thought
Lieutenant Carbona was dead.
Donald Shaw was the next officer to arrive at the Car-
bona home. He grabbed his first-aid kit and ran towards
the front door. Defendant screamed. ‘‘Hurry Don, hur-
ry; Joe has been hurt.’’ Shaw checked for vital signs but
found none. He observed that the deceased’s eyes were
open and beginning to dry, and that the wound in the chest
had stopped bleeding. The defendant appeared to be in an
hysterical state, screaming, ‘‘Help him, Don; help him,
Don. He wanted to hurt me, and Joe got hurt. Tell me he
‘is all right.’’ A black jacket, neckties, and trousers were
found scattered o) the landing by Lieutenant Carbona’s
feet. Further investigation revealed a bullet hole in the
back of the deceased considerably higher than the wound
in the chest A bullet was recovered from the lining of
the brown corduroy carcoat.
Shaw testified that his assignment was to accompany
the ambulance which transported Lieutenant Carbona’s
body to Holy Family Hospital. The deceased was taken
to the emergency room at 11:30 a.m. and pronounced dead
on arrival. The body was removed to the hospital’s morgue
facility. Shaw and Investigator William Denaer undressed
and processed the body. Photographs were taken and the
deceased’s clothing was placed in plastic bags. Shaw tagged
the body for purposes of identification.
On cross-examination Shaw testified that he did not ob-
serve any marks or bruises on the defendant. However, he
did notice bruises on the knuckles and wrists of the de-
ceased. Shaw stated that it was his opinion, based upon
his training and experience as a police officer, that the
App. 4
back wound exhibited characteristics of an entrance wound.
He observed a halo surrounding the perimeter of the
back wound which generally indicates a bruising effect
caused by the bullet entering the body at that point.
Investigator William Denaer corroborated the testimony
of Officer Shaw. Denaer identified in court every item
of clothing removed from Lieutenant Carbona at the
morgue, explaining the manner in which each item was
identified and bagged. He also stated that he photo-
graphed the scene with color and black and white film.
The trial court excluded the color prints from evidence
because of their possible inflammatory effect; however,
a few black and white photographs were later admitted as
instructional aids for the jury.
Gary Nelson, a mortician from the Oehler Funeral Home,
arrived at the Carbona home with an assistant at approxi-
mately 10:30 a.m. Pursuant to the instructions of police
officers, Nelson and his assistant lifted the deceased’s
body inside a basket type canvas cot. Nelson testified
that at no time was the body dragged. After Nelson trans-
ported the deceased to the hospital, the body was not re-
moved from the cot until it was lifted onto the autopsy
table in the hospital morgue. Nelson assisted Officers Shaw
and Denaer in undressing the body.
Sergeant Ernest Marinelli arrived on the scene at ap-
proximately 9:30 a.m. Officer Buckley informed Marinelli
that the defendant had been arguing with her husband,
Lieutenant Carbona, and that the Lieutenant had been
shot. Defendant was taken to a neighbor’s home accom-
panied by her mother, brother and sister. Marinelli, who
was known by the defendant through her previous associa-
tions with the Sheriff’s Police Department, approached the
defendant in the neighbor’s home and asked, ‘* What hap-
App. 5
pened?’’ Defendant told Marinelli that the deceased had
the gun in his hand while he was descending the stairs. In
an attempt to dissuade the deceased from leaving her, de-
fendant pulled at the arm of the deceased which held the
gun. The deceased tripped, discharging the gun, and he
fell to the landing of the staircase. The record is clear
that Marinelli’s police report of December 22, 1971, ac-
eurately recounted his interview with the defendant at the
neighbor’s home. The record is also clear that defense
counsel had knowledge of defendant’s statement.
The court heard Marinelli’s testimony regarding defen-
dant’s initial statement in voir dire outside the presence of
the jury. The court excluded the statement holding that
Miranda warnings should have been given since defen-
dant was the focus of interrogation.
Marinelli further testified that he collected evidence in
the Carbona home. A bullet was recovered from the inner
lining of the Lieutenant’s brown corduroy carcoat. A
.38 snub nose revolver loaded with six unspent shells was
found in one of the pockets of the carcoat. The .357 mag-
num, which was found on the fourth step, contained three
live cartridges and one spent cartridge. The Lieutenant’s
dark Lincoln Continental automobile was parked in the
driveway and contained items of clothing and books. The
deceased’s eyes were drying. Marinelli believed that
Lieutenant Carbona was dead. Marinelli did not smell
any alcohol around the deceased’s body. When Marinelli
returned to the police station at approximately 11:00 a.m.,
he found the defendant in the Commander’s office with
a policewoman on the third floor of the station.
Marinelli testified that he advised defendant of her con-
stitutional rights with the proper warnings. Defendant
indicated that she understood those warnings by shaking
App. 6
her head yes. She was crying, but not hysterical. Defen-
dant told Marinelli that she met her husband at her place
of employment on the previous evening. He followed the
defendant home in his own car. Defendant said that once
they were at home, the Lieutenant attempted to run her
over with his car. The defendant’s leg had been struck,
but she told Marinelli that a doctor was not needed.
Defendant related to Marinelli that an argument ensued
which awoke the defendant’s two children. The deceased
left the home at about 3:00 a.m. but later returned at about
6:00 a.m. The deceased intended to remove his personal
belongings and leave. After much argument, the Lieuten-
ant struck the defendant on the head and threatened to
kill her. Once he started to walk downstairs, the defen-
dant grabbed his arm. After a struggle, the deceased
tripped, discharging the gun. Defendant told Marinelli
that she couldn’t recall if it was he or she who fired the
weapon, or if it was in her hand or his hand when the
gun discharged. Defendant claimed that she immediately
called the police.
Marinelli offered his testimony concerning the defen-
dant’s statement at the police station before trial began.
After hearing the testimony, the trial court denied defen-
dant’s preliminary motion to suppress finding that there
was no evidence of pressure or coercion placed upon the
defendant. Defendant’s statement to Marinelli at the police
station was allowed to go before the jury.
Detective Bernard Singer arrived at the scene at ap-
proximately 9:45 a.m. Singer has been a policeman for
over 20 years. He examined the body and believed that
the Lieutenant was dead. There were no observable ‘‘black
marks’’ or ‘‘powder burns’’ on the body of the deceased.
App. 7
Singer found a pellet in the deceased’s carcoat lining which
approximated a .38 caliber bullet. Singer also found the
.38 snub nose revolver in one of the carcoat’s pockets.
Singer testified that a fingerprint analysis of the .357
magnum revolver was conducted at the police laboratory.
No fingerprints were found suitable for comparison. Sub-
sequent to Detective Singer’s testimony, the State intro-
duced pieces of fiber which adhered to the bullet found on
the deceased’s body. Those fibers matched the material of
the blue nylon jacket which was worn by the deceased un-
derneath the brown corduroy carcoat.
Ballistics evidence was introduced by Bert Nielson, a
firearm identification technician with 12 years’ experience.
He testified that the .357 magnum revolver found at the
scene could not be fired without pulling the trigger to the
rearward position. The .38 caliber bullet found in the
deceased’s carcoat was of the type used in the .357 mag-
num revolver and had the same ‘‘class characteristics’’
(six lands and grooves, spiral to the left) as the .357 mag-
num gun. There was no indication on the bullet itself
that it had ricocheted off a harder substance before en-
tering the deceased’s body.
Powder pattern tests were performed by Nielson. He
used the same .357 magnum revolver with the same type
of ammunition from the same manufacturer as the spent
cartridge found in the revolver. The gun was fired at
padded pieces of cotton in order to determine what kind
of powder residue remained at certain firing distances.
Nielson claimed that all powders, even fast-burning ones,
will leave a residue.
A microscopic analysis was conducted on the cotton used
in Nielson’s powder pattern tests by Louis A. Vitullo, who
has 21 years’ experience as a microanalyst with the Chi-
App. 8
eago Police Department Laboratory. When the revolver
was fired directly in contact with cotton material, the
exterior became jaggedly torn; the interior contained de-
posits of tattooed powder with much of the powder em-
bedded deeper into the fiber. Scorching, burning of fiber,
aud smudging of soot was also evident. When the gun
was held six inches from the cotton cloth, there was smudg-
ing from the soot of the propellant, light scorching and tat-
tooing of unburnt or partially burnt particles of powder.
When the revolver was held 12 inches, 18 inches, 24 inches
and 30 inches from the cotton target, both smudging and
tattoing occurred. From a distance of 36 inches and 48
inches, only tattooing of the unburnt and partially burnt
particles of powder was evident.
Vitullo also examined the rear panel of the brown car-
duroy careoat of the deceased under both regular and in-
frared light. Photographs were taken of these micro-
scopic tests. There was no indication on the corduroy of
scorching, burning, smudging or tattooing of unburnt or
partially burnt particles of powder; there were no parti-
cles of steel jacketing trom a bullet present. The per-
iphery of the bullet hole did not evidence burnt powder
deposits. Neither was there any powder residue on the
blue nylon jacket or on the tee shirt which was worn un-
derneath the carcoat. An examination of the plastic bag
which the police used to transport the carcoat from the
scene of the death to the laboratory revealed no particles
of powder or foreign substance due to shaking. Vitullo
stated that even when an article of clothing containing
powder particles is vacuumed, 100 percent of the particles
cannot be removed. Although blood will discolor powder
particles, infrared light would disclose the particles under
microscopic examination. Corduroy, Vitullo testified, is a
form of cotton.
App. 9
Dr. Edward Shalgos, a pathologist with 35 years’ experi-
ence, performed an autopsy on the body of Lieutenant Car-
bona during the morning of December 23, 1971, the day
after the Lieutenant’s death. Dr. Shalgos testified that
he identified the body as Lieutenant Carbona’s because of
the identification tags attached to the body and the re-
ferral sheet corresponding to the tags. Two bullet wounds
were found. The back wound was approximately midlevel
and 11% inches to the left of the midline. The back wound
was five inches higher in position than the front wound,
indicating a sharp, downward direction of the bullet path.
Although the front wound was described by Dr. Shalgos
in the preliminary stages of his report as having entry
characteristics, further investigation revealed that the front
wound was the exit wound. Fibers of clothing were found
embedded in the back wound. Solid tissues of cartilage
were pushed outward. These and other findings revealed
that the cause of death was that a bullet entered the de-
ceased’s back and lacerated his lung, aorta, and heart. The
body had to be turned slightly to the right to explain the
slightly rightward course of the bullet path.
Based upon his examination of the entire body, Dr.
Shalgos was asked on direct if he had formed an opinion,
based upon a reasonable degree of medical certainty, as
to whether or not Joseph Carbona’s arms could have been
in a position to inflict the wounds which caused his death.
Over objection by defense counsel, Dr. Shalgos testified
that it was his opinion that it was a physical impossibility
for the deceased to have shot himself.
The defense initiated its case with the testimony of
James Lindmark, a former Assistant State’s Attorney of
Cook County. Lindmark stated that on December 22,
1971, he was sent to the Sheriff’s station where defendant
App. 10
was being held for the purpose of obtaining a homicide
statement. Lindmark found the defendant, her mother
and a policewoman together in the station. Defendant was
erying. Lindmark, at the request of defendant’s mother,
telephoned defense counsel. Lindmark observed bruises
and skin discoloration on defendant’s face. Apprehensive
that the bruises were received at the police station, Lind-
mark told defendant that he would just as soon prosecute
a policeman if she received those bruises from anybody
at the station as prosecute her. When asked about the
bruises, defendant told Lindmark that she received them
from her husband, the deceased. The defendant did not
request the assistance of a physician.
At the outset of cross-examination by the State, the trial
court admonished Lindmark not to state that defense coun-
sel had advised defendant to refrain from volunteering
information without his presence. Subsequent to the
court’s ruling, an objection by defense counsel was sus-
tained as to a question probing into any statements about
the shooting made by defendant to Lindmark When asked
if he had in fact taken a homicide statement, Lindmark
replied in the affirmative. Immediately thereafter, how-
ever, he changed his answer and stated that he did not
obtain a homicide statement. Lindmark then testified that
he recommended murder charges be filed against the de-
fendant.
Ann Sanders, a correctional matron at the Cook County
Jail for 514 years, testified that she undressed and ex-
amined the defendant before admitting her into the facili-
ty. Sanders observed approximately 15 bruises on the de-
fendant’s body, located on the face, neck, arms, buttocks
and breasts. A heavy swelling was noticed on one of de-
fendant’s legs.
> —
DO OO
App. 11
Glen Richert, a police officer and acquaintance of both
Joseph and Ruthe Carbona, testified that he saw Lieuten-
ant Carbona at the Sheriff’s Police Station between 3:00
a.m. and 4:00 a.m. on December 22, 1971. Richert smelled
liquor on the breath of Lieutenant Carbona. It was Rich-
ert’s opinion that the Lieutenant was under the influence
of alcohol. Cross-examination revealed that Richert him-
self had consumed six drinks earlier in the evening.
Christine Richert, the wife of Glen Richert, testified
that she met Lieutenant Carbona with her husband at the
Sheriff’s Police Station in the early morning hours on
December 22, 1971. The Lieutenant and Mrs. Richert pro-
ceeded to the Richert home at approximately 4:45 a.m.
The deceased consumed about three drinks in waiting for
' Glen Richert to arrive. At approximately 6:00 a.m. the
Lieutenant departed from the Richert home.
Ruthe Carini, age 11, and Billy Carini, age 10, defen-
dant’s children by a previous marriage, testified that they
were awakened by loud yelling and screaming at approxi-
mately midnight. Voices were soon heard from outside
the residence. A car pulled out of the driveway, and
screams were heard from the defendant. Both children
found defendant lying back into the shrubbery with her
feet in the driveway. The children assisted the defendant
in returning to the house. After falling back to sleep, the
children awoke at 7:00 a.m. and departed for school at
approximately 8:00 a.m.
Defendant testified in her own behalf. On the evening
before the shooting, defendant worked as a waitress for
a special Christmas party at Corrado’s restaurant. After
the party, at approximately 10:00 p.m., she claimed to
have driven one of the patrons, Mr. Bacera, back to his
office in Bacera’s automobile. She was returned to the
App. 12
restaurant by another patron, Mr. Belpedio, who had fol-
lowed the two in his car to Bacera’s office.
Lieutenant Carbona arrived at the restaurant and saw
the defendant speaking with Belpedio at approximately
10:15 p.m. Both defendant and her husband returned
home. He told her that she should not speak to anyone
else. Defendant stated that her husband was intoxicated.
He slapped her and punched her in the stomach and on
her arms. In attempting to escape, defendant ran outside
to her automobile. The Lieutenant pulled her from the
automobile, threw her into the shrubbery, and backed out
of the driveway striking defendant’s leg. With the as-
sistance of her children, defendant returned to the house
and retired to her bedroom.
She was later awakened by a slap to the face. Joseph
Carbona pointed his .38 revolver to her stomach and
threatened to shoot her. He then pointed the revolver to
her head and again threatened to shoot. The Lieutenant
allegedly departed from the house again.
The deceased returned home for a third time at approxi-
mately 8:15 a.m. He stated that he was going to leave the
defendant and quit his job as a police officer. He began to
load his automobile with his personal belongings. Defen-
dant implored him not to leave her. After placing neck-
ties and other items of clothing in his arms, he allegedly
grabbed his .357 magnum revolver from a dresser drawer.
The deceased was right-handed, and he carried the gun
in his right hand. Once at the bedroom doorway, which
was on the second floor landing, defendant attempted to
block his path. The Lieutenant struck the defendant on
her head with his revolver swearing that his mind would
not be changed. He then pulled back the hammer, pointed
the gun to the defendant’s head and again threatened to
=
App. 13
kill her. The Lieutenant began walking down the stairs
when the defendant grabbed and pulled his right arm be-
hind him. The Lieutenant had walked to about the fourth
or fifth step down from the second floor landing; he
tripped as a result of the struggle, discharging the gun
which inflicted the wound in his back.
The defendant testified that she did not let go of the
deceased’s hand prior to the shooting; that she never had
the gun in her hand; and that the Lieutenant was walking
and pulling away when the gun discharged. The deceased
allegedly held the gun with all four fingers on the side
of the cylinder. The hammer was pulled back in a cocked
position. Th> deceased’s arm was extended straight be-
hind him.
The defendant enacted her version of the shooting be-
fore the jury three times, twice with defense counsel play-
ing the role of the deceased, and once with the Assistant
State’s Attorney playing that role. The defendant stood on
a chair and pulled the arm of the person playing the role
of the deceased, while the latter walked away from her.
On cross-examination the defendant denied ever mak-
ing a statement to any third party that she only meant to
shoot her husband in the shoulder. She also stated that
she could not remember being on any houseboat after the
shooting accompanied by a gentleman from Florida who
was in the construction business.
In rebuttal, the State recalled Officer Marinelli. He tes-
tified that he witnessed the autopsy performed on Lieu-
tenant Carbona’s body by Dr. Shalgos.
Officers R. G. Gable, Thomas Vaid, and Errol Levy tes-
tified in rebuttal that they had both seen Lieutenant Car-
bona during the early morning hours of December 22,
App. 14
1971. They both recalled smelling alcohol on the breath
of Officer Richert, but did not detect any alcohol on the
breath of Lieutenant Carbona.
Robert Daiziel testified that on July 1, 1972, the defen-
dant was a guest on his houseboat located on Fox Lake.
Dalziel allegedly was present during a conversation be-
tween the defendant and a gentleman from Florida, Mr.
George Dolan. Dolan had asked the defendant how she
acquired the name of ‘‘cop killer’’ in reference to a pre-
vious comment made earlier in the day by a Mr. John
Paul Jocovac, a member of the group who had since left
the boat. Defendant replied that she had shot her hus-
band. She allegedly told Dolan, ‘‘I was glad he was awake
and wasn’t sleeping when I shot him. I waited until my
kids went to school.’’ In surrebuttal, the defendant de-
nied making the statements.
Mrs. Mary Ann Twardzick, the defendant’s next door
neighbor, testified that on the date of Lieutenant Car-
bona’s funeral, defendant told her that the newspaper lied
about the shooting. The defendant allegedly said that she
didn’t shoot her husband in the back; she shot him in the
shoulder. It was later revealed that the defendant was
released from jail one day after the Lieutenant’s funeral.
In surrebuttal, defendant denied making the statements.
Margaret Cucletto, the deceased’s former wife, testified
that never in the 13 years of their marriage had she known
Joseph Carbona to be intoxicated. On surrebuttal, defen-
dant stated that the deceased had taken to heavy drinking
because of difficulties with his job. She alleged that the
deceased was accustomed to drinking a gallon of bourbon
a week.
App. 15
On surrebuttal, George Christepoulas, a toxicologist,
testified that the blood, bile and urine of the deceased
were tested for their alcoholic content on December 27,
1971. The blood contained an exact amount of 31 milli-
grams percent alcohol. Cross-examination revealed that
this content is equivalent to two beers.
John Paul Jocovac and his wife, Marsha Jocovac, tes-
tified that they were with the defendant, Dalziel and Do-
lan on the houseboat during the afternoon of July 1, 1972.
Both had departed the houseboat prior to the time de-
fendant conversed with Dolan and Dalziel about her hus-
band’s death. Both testified, however, that neither the
defendant’s indictment, nor the shooting incident itself,
was ever discussed. Mr. Jocovac denied that he ever men-
tioned or heard the name ‘‘cop killer.’’
Upon this record the jury could properly find the de-
fendant guilty beyond a reasonable doubt. The autopsy re-
port showed that the entrance wound in the back of the
deceased was farther left of the midline than the exit
wound in the front. The bullet path had a slightly right-
ward course. On three different occasions, the defendant
enacted her version of the shooting before the jury. De-
fendant claimed that the deceased held the gun with his
right hand. In order for the defendant’s version to be
consistent with the autopsy report, the deceased would
have had to position his right hand to the left side of
his back, twist towards the right, and fire the gun with
his finger (ballistics evidence showed that the revolver
could only be discharged by pulling the trigger) to cause
the bullet to take a rightward course.
Powder residue was not detected on the deceased’s cor-
duroy carcoat. Defendant argued at trial and before this
court that any powder traces could have been dislodged
App. 16
from the deceased’s fall down the stairs; from lying on
his back at the staircase landing; and from contact be-
tween the jacket and the transportation basket in which
he was removed to the hospital.
The State’s evidence indicated that powder residue re-
mained on cotton material (corduroy is a form of cotton)
when ammunition from the same manufacturer was fired
from the same gun at a distance as great as 48 inches.
The deceased’s corduroy carcoat was examined micro-
scopically under regular and infrared light. Even if an
article of clothing is vacuumed, 100 percent of powder
particles cannot be removed.
Three witnesses testified to defendant’s out-of-court ad-
missions. Defendant asserts perjury on the part of those
witnesses. The record reveals that the credibility of the
State’s witnesses was sufficiently challenged on cross-exam-
ination, during surrebuttal, and during defendant’s clos-
ing argument. Notwithstanding defendant’s assertions,
the jury rendered a verdict of guilty. We will not attempt
to substitute our judgment regarding credibility of wit-
nesses for the judgment of trier of fact. People v. Mari-
no, 44 Ill. 2d 562, 256 N.E.2d 770.
A conviction can be sustained upon circumstantial evi-
dence as well as upon direct. (People v. Hansen, 5 Ill. 2d
535, 126 N.E.2d 243.) The requirement that the defen-
dant’s guilt be proven beyond a reasonable doubt does
not mean that the jury must disregard the inferences
which flow normally from the evidence before it. (People
v. Russel, 17 Ill. 2d 328, 161 N.E.2d 309.) Here all of the
inferences from the evidence pointed to the defendant’s
guilt. The State presented strong evidence indicating that
the deceased could not have been shot at close range. The
conclusive nature of the evidence tended to prove that
ll
tle ne cet Ca a oe
App. 17
the defendant, from the top landing, shot her husband
while he was descending the stairs. The jury was not re-
quired to search out potential explanations compatible
with innocence, and elevate them to a status of reasonable
doubt. (People v. Benedik, 56 Ill. 2d 306, 307 N.E.2d 382.)
Defendant’s version of the homicide was contrary to the
competent evidence presented. We find that the defendant
was proven guilty beyond a reasonable doubt.
Defendant next contends that her statement given to
Officer Marinelli at the police station was improperly ad-
mitted in violation of Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed. 2d 694. All of the warnings re-
quired by Miranda were given to the defendant. She ar-
gues, however, that she did not knowingly and intelligently
waive her rights before she issued the statement. She
further claims on appeal that the statement given to Offi-
cer Marinelli at her neighbor’s home a short time after
the police arrived ‘‘tainted’’ her second statement issued
to Marinelli about two hours later.
The court conducted a hearing on a motion to suppress
prior to trial. Officer Marinelli testified that he asked the
defendant whether or not she understood the warnings
she had received. The defendant, according to Marinelli’s
testimony, indicated that she did understand. A voluntary
statement, exculpatory in nature, was then issued.
It is the trial judge’s function to determine the credibili-
ty of witnesses and the totality of circumstances at a hear-
ing on a motion to suppress. The trial court’s decision as
to the voluntary nature of a defendant’s statement will
not be set aside unless contrary to the manifest weight of
the evidence. (People v. Pittman, 55 Ill. 2d 39, 302 N.E.
2d 7; People v. Johnson, 55 Ill. 2d 62, 302 N.E.2d 20.) Any
clear manifestation of a desire to waive is sufficient. The
App. 18
test is the showing of a knowing intent which is deter-
mined not only by the language employed, but also by a
combination of that articulation with the surrounding
facts and circumstances. (People v. Higgins, 50 Ill. 2d 221,
278 N.E.2d 68.) Defendant was fully apprised of her
rights as required by Miranda. She indicated that she
understood those rights and volunteered a statement which
was exculpatory in nature. There was no evidence of
pressure or coercion. The trial court’s ruling was clearly
not against the manifest weight of the evidence.
Shortly after the police arrived, Officer Marinelli was
given a statement by the defendant at her neighbor’s home
in response to Marinelli’s inquiry of ‘‘What happened?’’
At the outset of Marinelli’s direct testimony, the court
interrupted proceedings in order to conduct a voir dire ex-
amination into the nature of the statement. The court ex-
cluded the statement from evidence ruling that the defen-
dant should have been given her Miranda warnings. This
had transpired before Marinelli testified in the presence
of the jury that defendant had given him a statement at
the police station two hours later. Defense counsel pos-
sessed Marinelli’s police report which recounted the de-
fendant’s first statement. Defense counsel openly admit-
ted no surprise to the statement’s existence.
For the first time on appeal, defendant argues that the
second statement was the ‘‘tainted fruit’’ of the first state-
ment. The record indicates that the trial judge allowed
defense counsel ample opportunity to either renew its mo-
tion to suppress after Marinelli’s voir dire examination
or to offer an objection before Marinelli testified about the
second statement on grounds that it was tainted by the
first statement. The argument was never raised nor con-
sidered at trial. We find that the issue was waived. Peo-
ple v. Nilsson, 44 Ill. 2d 244, 255 N.E.2d 432.
2 ee OS Ae ee ae ERE ee pt
oe
eee
App. 19
Defendant next contends that certain expert opinion was
improperly admitted. The following testimony of Dr. Ed-
ward Shalgos, the pathologist who performed the autopsy
on deceased’s body, is claimed to be an impermissible in-
vasion of the province of the jury:
‘*Prosecutor: Based upon your examination of the
entire body of Joseph Carbona, Doctor, have you
formed an opinion based upon a reasonable degree of
medical certainty as to whether or not Joseph Car-
bona’s arms could have been in a position to inflict
the wound that caused his death? * * *
Witness: Yes. * * *
Prosecutor: What is that opinion? * * *
Witness: It is a physical impossibility for the sub-
ject to have shot himself.’’
Expert testimony is properly admissible when the sub-
ject matter is sufficiently beyond common experience so
that only persons of skill or experience are capable of
forming a correct judgment as to any connected fact.
(People v. Fisher, 340 Ill. 216, 240, 172 N.E. 743.) The
prevailing view is that the subject of self-inflicted wounds
is not one of such common experience that laymen may
not be assisted by the opinion of a doctor who has special
knowledge regarding anatomy and injuries to the human
body. (People v. Cole, 47 Cal. 2d 99, 301 P. 2d 854; State
v. Campbell, 146 Mont. 251, 405 P. 2d 978; State v. Mitch-
ell, 282 Minn. 113, 163 N.W.2d 310; see also Anmnot., 56.
A.L.R. 2d 1447; 3 Wharton, Criminal Evidence, § 617.)
Medical testimony may be admitted in order to assist the
trier of fact even though the expert opinion may coincide
with an ultimate issue of fact. ‘‘* * * Since the trier of
fact is not required to accept the opinion of the expert,
such evidence does not usurp the province of the jury.’’
Merchants Nat. Bk. v. E. J. @ E. Ry. Co., 49 Til. 2d 118,
App. 20
122, 273 N.E.2d 809; see also People v. Covey, 34 Ill. 2d
195, 215 N.E.2d 220; Carlson v. New York Life Ins. Co.,
76 Ill. App. 2d 187, 222 N.E.2d 363; 7 Wigmore, Evidence,
§ 1920.
The jury could have rejected the opinion of Dr. Shalgos
in light of all the other facts and testimony presented.
The opinion was simply one factor for the jury to con-
sider in their attempt to ascertain the truth. The province
and function of the jury was not usurped.
Defendant additionally argues that certain testimony
from police officers was improperly admitted. She claims
that the officers were not shown to possess the requisite
expertise to state that Lieutenant Carbona was dead when
they arrived at the Carbona home. The possibility is
raised that the Lieutenant could have been alive and imme-
diate medical attention might have saved him. Moreover,
defendant argues that the officers should not have been
permitted to testify that they could not smell nor see any
traces of gun powder.
Defendant’s arguments are without merit. No objections
were interposed regarding the officers’ opinions that Lieu-
tenant Carbona was dead. The record reveals three in-
stances on cross-examination where defense counsel elicit-
ed such testimony. Defendant’s argument on appeal was
never presented to the trial court and is therefore waived.
(People v. Trefonas, 9 Ill. 2d 92, 136 N.E.2d 817.) Defen-
dant’s theory that police inaction contributed to the death
of Lieutenant Carbona is purely speculative. No evidence
was presented at trial to substantiate the argument.
It was proper to admit the officer’s testimony concern-
ing the absence of gun powder. Lay witnesses may testify
to physical and natural facts which are capable of being
en. Ce
Hore ween eet ee ee - -
App. 21
perceived by the senses. (People v. Berkman, 307 Ill. 492,
139 N.E. 91.) The record indicates that a proper founda-
tion was laid at trial to establish the officers’ familiarity
with powder burns. It was not error to admit the officers’
testimony that gun powder was not detected either by
sight or smell.
The fourth issue on appeal is whether the trial court
abused its discretion by admitting testimony regarding
the State’s powder pattern experiments. The defendant
argues that bullets from the same manufacturer’s lot as
the one recovered from the deceased’s carcoat were not
used in the experiments. She also argues that the use
of padded cotton instead of corduroy weave was a signifi-
cant discrepancy from the actual conditions at the time of
the shooting. Testimony regarding the experiments was
presented without objection.
Experiments may be received into evidence if probative
of facts in issue and were conducted under substantially
similar conditions and circumstances as those which sur-
rounded the original transaction or occurrence. (State v.
Atwood, 250 N.C. 141, 108 S8.E.2d 219; People v. Wilson,
401 Ill. 68, 81 N.E.2d 485; see also Annot., 86 A.L.R. 611.)
The admissibility of experimental evidence is a matter
within the discretion of the trial court. A reversal is not
warranted unless a.clear abuse of discretion is demon-
strated. Hardman v. Helene Curtis Industries, Inc., 48 Tl.
App. 2d 42, 198 N.E.2d 681.
Although defense counsel argued in closing argument
that ammunition from different manufacturer’s lots would
produce different results, no competent evidence was pre-
sented to support such an argument. Moreover, no com-
petent evidence was produced at trial that powder residue
App. 22
would form differently, or not form at all, on corduroy
weave than residue formation on padded cotton. The tes-
timony indicates that corduroy is a form of cotton.
Admitting testimony about the experiments was not an
abuse of discretion. Requiring that all the conditions of
an experiment be perfectly identical to actual conditions
would largely preclude experimental evidence as a prac-
tical method of proof. The same elements of the Carbona
shooting were employed in the State’s experiments; the
same .357 magnum revolver, the same kind of ammunition
from the same manufacturer, the same kind of target ma-
terial (padded cotton), and the same proximate distances
inherent to defendant’s version of the incident. Evidence
indicated that fast burning powder will also leave a resi-
due. The oral testimony regarding the powder residue
merely described what kind of powder residue remains at
certain firing distances. The experiments’ weight and pro-
bative value was to be determined by the jury.
Defendant next contends that it was prejudicial to allow
the use of an incomplete diagram depicting the floor plan
of the foyer area and staircase of the Carbona home. De-
fendant argues that essential portions of the scene were
omitted from the diagram—i.e., metal staircase rail, grille,
location of body, and the presence of an alleged bloodstain
on the wall.
Contrary to defendant’s argument, the diagram is not
incomplete. With the aid of witness testimony before the
jury, defense counsel was able to insert subsequent mark-
ings on the diagram depicting the four items allegedly
missing. The record reveals that counsel for both sides
used the diagram in their presentation. The diagram ap-
peared complete in every detail. Furthermore, two photo-
graphs of the stairway and the foyer area were admitted
. nS wae comttie, stom 4
eo
App. 23
into evidence and examined by the jury. The jury had a
complete view of the scene. There is no indication that
they were misled. The trial court, therefore, did not com-
mit error by permitting the diagram’s use for demon-
strative purposes. People v. Howze, 7 Ill. App. 3d 60,
286 N.E.2d 507.
Defendant’s sixth issue is that the State’s rebuttal evi-
dence is improper because it should have been introduced
in the State’s case in chief; it doesn’t rebut anything ad-
duced by defendant; and it should have been excluded due
to the State’s failure to disclose defendant’s admissions
pursuant to Supreme Court Rule 412. Ill. Rev. Stat. 1973,
ch. 110A, par. 412.
Rebutting evidence is that which explains, repels, con-
tradicts, or disproves the evidence given by defendant.
(People v. Bell, 328 Ill. 446, 159 N.E. 807; see also 2 Whar-
ton, Criminal Evidence, § 466.) ‘‘ Although testimony that
would be proper as evidence in chief should not be re-
served for rebuttal, these matters rest largely within the
discretion of the court and such rulings will ordinarily
not be set side upon review.’’ (People v. Lion, 10 Ill. 2d
208, 217, 139 N.E.2d 757.) The fact that testimony might
also be competent in chief does not render it improper
for rebuttal. People v. Crump, 5 Ill. 2d 251, 125 N.E.2d
615.
Admissions or subsequent conduct may be allowed in
evidence to prove the accused’s intent or guilty knowledge.
(People v. Storer, 329 Ill. 536, 161 N.E. 76.) The rebuttal
testimony of Mrs. Twardzick and Mr. Dalziel concerned
admissions allegedly made by defendant subsequent to her
husband’s death. The record clearly indicates that those
alleged admissions were introduced to contradict defen-
App. 24
dant’s testimony. We see no abuse in the trial court’s
decision to allow such evidence in rebuttal. The defendant
refuted the State’s witnesses in surrebuttal and in closing
argument. Questions of credibility remained for the jury
to decide.
Defendant further argues that her alleged admissions
should have been revealed to her prior to trial pursuant
to Supreme Court Rule 412, which requires the State to
turn over all information in its possession relating to a
defendant’s statements to third parties. The record in-
dicates that the State did not acquire possession of those
statements until two weeks prior to trial. Defense counsel
interviewed both witnesses before they testified in rebuttal.
Moreover, Supreme Court Rule 415 (Ill. Rev. Stat. 1973,
ch. 110A, par. 415) provides a number of sanctions which
ihe court may apply at its discretion under any given set
of circumstances. Failure to comply with the discovery
requirements of Rule 412 does not mandate the exclusion
of the proffered evidence. Under the circumstances, we
agree with the trial court that defendant was not placed at
an unfair disadvantage of surprise.
Mrs. Cucletto testified that never in 13 years of mar-
riage did she know Joseph Carbona, her former husband,
to be intoxicated. We believe that this testimony was im-
proper. Mrs. Cucletto had not lived with the deceased for
approximately six years before his death. Her knowledge
of the deceased’s drinking habits was immaterial to the
question of whether or not Joseph Carbona had been
drinking on the evening before his death. However, Mrs.
Cucletto’s testimony is entitled to no weight since the
coroner’s toxicologist mitigated her testimony by finding
aleohol in the blood of the deceased. Allowing Mrs. Cuc-
letto’s testimony into evidence was harmless error. Peo-
ple v. Gill, 54 Ill. 2d 357, 297 N.E.2d 135.
.
SO OR rete ener tat rene. be *
Pe Ae een enim o~
App. 25
Defendant next contends that she was entitled to a mo-
tion for acquittal after the close of the State’s case in
chief. Specifically, she claims that competent evidence did
not establish that the body examined by Dr. Shalgos was,
in fact, the body of the deceased. She further argues that
the rebuttal testimony of Officer Marinelli that he per-
sonally witnessed the autopsy was essential to proving the
death of Joseph Carbona and was improper rebuttal.
The elements to be proved in cases of criminal homicide
are proof of death and proof of criminal agency causing
death. (People v. Benson, 19 Ill. 2d 50, 166 N.E.2d 80.)
Proof of death and identity of the deceased may be estab-
lished by circumstantial evidence. People v. Gendron, 41
Ill. 2d 351, 243 N.E.2d 208; People v. Schneider, 360 Ill.
43, 195 N.E. 430. In the instant case, Officers Shaw and
Denaer accompanied the body of the deceased when it was
removed from the Carbona home to the hospital morgue.
After Lieutenant Carbona was pronounced dead, the two
officers undressed the body, noting the types of wounds
received by the deceased. The body was tagged for iden-
tification by Shaw. Dr. Shalgos testified that he knew the
body was Lieutenant Carbona’s because of the identifica-
tion tags. Moreover, photographs taken of the deceased
at the morgue were introduced into evidence. The wounds
shown by the photographs correspond not only to the
wounds described in the autopsy report of Dr. Shalgos,
but also to the wound descriptions given by other wit-
nesses. Even without Officer Marinelli’s rebuttal testi-
mony, we believe that the evidence adequately established
the identity of the deceased, Joseph Carbona.
The defendant next contends that it was error to allow
James Lindmark, a former Assistant State’s Attorney,
to testify to his recommendation that murder charges be
App. 26
lodged against her. Defendant relies on the case of People
v. Blissit, 12 Ill. App. 3d 551, 299 N.E.2d 562, which holds
that it is prejudicial error for the State to offer a prose-
cutor’s testimony regarding his recommendation that mur-
der charges be placed against a defendant.
We find Blissit inapplicable to the facts at bar. In Blis-
sit, the investigating prosecutor was called as a witness by
the State; in the instant case, he was initially called by the
defendant. Lindmark testified to his observations and his
conversations with the defendant on the day he was as-
signed to investigate the incident. The testimony elicited
had the effect of exhibiting a sympathetic disposition
towards the defendant on the part of the investigating
prosecutor. It is quite possible, as the State argues, that
the jury could have surmised that Lindmark believed in
the defendant’s innocence or that the State’s Attorney’s
Office was not of one mind in the prosecution of the defen-
dant. It was permissible, therefore, to allow the State to
further inquire into Lindmark’s observations and con-
duct. A defendant cannot complain about lines of inquiry
which he or she initiated. (People v. Bridgeforth, 51 Ill.
2d 52, 281 N.E.2d 617; People v. Wesley, 18 Ill. 2d 138,
163 N.E.2d 500.) Moreover, the State was entitled to
dispel the impression that defendant was believed to be
innocent by the investigating prosecutor. One of the clas-
sic functions of cross-examination is to weaken or explain
previous testimony or impressions given by a witness on
direct. (People v. Garcia, 3 Ill. App. 3d 695, 279 N.E.2d
506 (abstract only).) The defendant cannot hope to cre-
ate an erroneous impression or a half-story without open-
ing the door to a fuller explanation by the State on cross-
examination. It was not prejudicial error to allow the
State to inquire into the recommendation made by Lind-
* *
ee, ee
App. 27
mark immediately following his initial investigation. The
inquiry served one of the legitimate purposes of cross-
examination.
The cross-examination of Lindmark shows the follow-
ing:
‘*‘Defense Counsel: Did you have an occasion to
make any recommendations to these police officers as
to the charges in this particular case?
Mr. Lindmark: I did.
Defense Counsel: Object to that, if the Court
please.
The Court: I will overrule it.
Defense Counsel: It’s way out of the direct.
Prosecutor: What were the charges that you rec-
ommended?
Mr. Lindmark: Murder.
Prosecutor: I have nothing further.
The Court: Re-direct.
Defense Counsel: Judge, there is a motion for a
mistrial here.’’
(Emphasis added.)
The trial court then correctly pointed out that no objec-
tion had been made to the question concerning the charges
which were recommended. Moreover, no objection was
made to the first question, ‘‘Did you have any occasion
to make any recommendations to those police officers as
to the charges in this particular case?’’ until the question
had been answered. When the objection was made, no
reason was given for it; and after the court overruled
it, the defense attorney advanced as ground for the ob-
jection that it was ‘‘way out of the direct.’’ The defen-
dant’s one objection was not timely, nor was the ground
advanced proper. People v. Trefonas, 9 Ill. 2d 92, 136
N.E.2d 817.
App. 28
Further, any appreciable prejudicial effect was miti-
gated by protective measure taken by the court. The jury
was instructed that a murder charge was not any evidence
against the defendant and did not create an inference of
guilt. Additionally, the trial court ruled that Lindmark’s
recommendation could not be made the subject of closing
argument.
As a ninth issue defendant asserts that it was prejudi-
cial error to allow Lindmark to inform the jury on cross-
examination that defendant was unwilling to give a homi-
cide statement in the exercise of her right to remain silent.
Defendant points to the following colloquy:
‘*Prosecutor: And did you, in fact, take a homi-
cide statement from the defendant, Ruthe Carbona?
Mr. Lindmark: I did.
Defense Counsel: Objection, if the court please.
The Court: Sustained.
Prosecutor: Mr. Lindmark—
The Court: Just a minute. I will overrule. Let
him answer yes or no.
Prosecutor: Did you, in fact, take a homicide state-
ment from the defendant, Mrs. Ruthe Carbona?
Mr. Lindmark: No.’’
The record discloses that the jury was informed that
the defendant gave a lengthy explanation of her version
of the shooting to Officer Marinelli. The jury also heard
Lindmark testify on direct that he had a conversation
with the defendant during a two to four-hour period. De-
fendant did not remain silent. It cannot be claimed that
the jury was left with the impression that the defendant
had maintained silence in order to hide her guilt. There-
fore, defendant’s Fifth Amendment right to be free froin
self-incrimination is not in issue. People v. Queen, 56 IIl.
2d 560, 310 N.E.2d 166; People v. Kent, 15 Til. App. 3d 523,
305 N.E.2d 42.
Oe OL oe
*
aes =
App. 29
On direct examination of Mr. Lindmark, the defense at-
torney asked if Lindmark, when he observed the defen-
dant in her condition, had a further conversation with her,
to which the witness said ‘‘Yes.’’ The defense attorney
then asked, ‘‘What was the gist of that conversation.’’
The witness answered: ‘‘It is hard for me to recall what
was the conversation with her and what was with her
mother. They were together.’’ The defense attorney then
asked: ‘‘ All right could you tell us what the conversation
was with her and her mother?’’ The witness said: ‘‘ Yes.
Her mother indicated that she had an attorney. I had been
sent there to take a homicide statement. I called you [de-
fense attorney] and inquired whether you wanted to come
out to that station while I took the statement. I believe
you spoke to the mother. Subsequent to that I had an-
other conversation with her in one of the side offices and
at that time was the time that the policewoman, she, her
mother, and myself were present.’’ (Emphasis added.)
Defense counsel further inquired, ‘‘What was the gist of
that conversation?’’ Lindmark answered, ‘‘I inquired of
her where she received what I considered to be bruises,
etc.’’
In cross-examination the prosecutor had the right to in-
quire of the witness whether or not he had any records
from which he had refreshed his recollection. His first
question of Lindmark was whether or not Lindmark had
made a summary or a report of what transpired on that
particular day. It is of the utmost importance to note
that the defense attorney elicited the fact that Lindmark
had been ‘‘sent there to take a homicide statement.’’ The
jury had no homicide statement before it. Under the cir-
cumstances, the jury could well wonder what had hap-
pened to it and whether or not it was exculpatory. Under
that state of the record, the State had the right to show
App. 30
that it did not have any homicide statement and that
Lindmark did not take one. The record also reflects that
in the conversation between Lindmark and the defense
attorney, the defense attorney told Lindmark that there
was to be no questioning of the defendant unless the de-
fense attorney was present. That conversation was never
presented to the jury. It would be manifestly unfair, there-
fore, to preclude the State from at least showing that
Lindmark did not in fact take a statement.
Moreover, we do not find any appreciable prejudicial
effect stemming from Lindmark’s testimony. Prior to
the colloquy in question, the trial court, in an attempt to
protect the defendant’s right to remain silent, admonished
Lindmark not to testify that defense counsel had advised
defendant to refrain from volunteering information with-
out his presence. Lindmark’s statement itself, moreover,
is self-contradictory and therefore nonprobative. Further-
more, the State did not comment in closing argument, or
elsewhere, on defendant’s failure to give a homicide state-
ment. The lack of prosecutional comment strongly miti-
gates any harm that could have arisen from Lindmark’s
testimony. L’nited States ex rel. Moore v. Woods, 420 F.2d
1260.
The tenth issue raised for our consideration is the prej-
udicial nature of various comments contained in the
State’s closing arguments and in the questions put to de-
fendant during cross-examination. Defendant contends
that evidence was misstated in the following comments:
that the defendant grabbed the deceased’s gun and hand
to prevent him from leaving; that the defendant shot her
husband from the top of the stairs as he was near the
bottom landing because she saw ‘‘her life of luxury’’ leav-
Se
- .
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oneal lA ate oe ae ne
App. 31
ing with his departure; and that two of the four bullets
found in the .357 magnum revolver were .38 caliber. De-
fendant also argues that the prosecutor’s comment on the
‘*unrebutted’’ nature of the State’s ballistics evidence im-
properly diluted defendant’s presumption of innocence.
Finally, defendant argues that the prosecutor stated his
personal opinion in closing argument.
A prosecuting attorney has the right to draw legitimate
inferences from facts and circumstances proved. Such ar-
guments and statements of counsel are within the scope
of proper debate. It is not improper for the prosecuting
attorney to comment unfavorably on the defendant, or to
place her in a bad light, if the State’s argument is based
on competent and pertinent evidence. (People v. Miller,
13 Ill. 2d 84, 148 N.E.2d 455; People v. Heidman, 11 Ill. 2d
501, 144 N.E.2d 580.) Moreover, it has been held that the
-—prosecutor may comment-on the defendant’s failure to
contradict the State’s expert testimony. Such commentary
does not shift the burden of proof to the defendant thereby
diluting her presumption of innocence. The State may
properly emphasize the absence of pertinent evidence.
People v. Peter, 55 Ill. 2d 443, 303 N.E.2d 398; People v.
Mills, 40 Ill. 2d 4, 237 N.E.2d 697.
Applying these principles to the record before us, we
cannot find that the State’s closing remarks transcended
the bounds of legitimate debate. It was entirely proper
to comment upon and to theorize from the ballistics evi-
dence presented. (People v. Walker, 22 Ill. App. 3d 711,
318 N.E.2d 111.) Even though the term ‘‘life of luxury”’
as used by the prosecuting attorney was not expressed
with the nicety of a polite conversation, it was reasonable
to infer a spiteful motive on the part of the defendant
from the facts presented in evidence. People v. Shack, 396
Ill. 285, 71 N.E.2d 633.
App. 32
The prosecuting attorney’s remarks attesting to the
honesty of the State’s witnesses appear to be an expres-
sion of personal belief, which normally would be consid-
ered improper. However, the record discloses that defen-
dant’s summation vigorously attacked the credibility of
the State’s witnesses and strongly implied that perjury
was instigated by the State’s effort to convict the defen-
dant. An advocate is permitted considerable reply to his
opponent’s arguments even in responding to matters of
eredibility. (United States v. Nowak, 448 F.2d 134.) The
prosecutor’s remarks constituted a legitimate reply to the
defendant’s accusations that the police officers and other
witnesses offered by the State were guilty of perjury. De-
fendant, having provoked this reply, cannot now com-
plain. People v. Hayes, 23 Ill. 2d 527, 179 N.E.2d 660.
Defendant further contends that during her cross-exam-
ination, the prosecuting attorney attempted to portray
her as a ‘‘bad woman’’ who provoked the deceased to any
mistreatment of her because of her promiscuous behavior.
The record does not disclose any other explicit statements
by the prosecuting attorney evidencing the alleged insinu-
ations except the following exchange:
‘*Prosecutor: Well, Mrs. Carbona, isn’t it a fact
that you shot your husband with a .357 magnum as
he was leaving your house?
Defendant: No, I never did.
Prosecutor: Because he had caught you with Mr.
Belpedio in that parking lot and you saw your meal
ticket walking down the stairs?’’
The evidence indicates that on the evening prior to the
shooting the deceased met his wife conversing with Mr.
Belpedio in the parking lot of the restaurant where she
was employed. Defendant’s own testimony reveals that
the situation contributed to the violent domestic quarrel
which culminated in the Lieutenant’s death.
Peano ae (tee etnies. es
Oe na
App. 33
The extent of appropriate subjects of inquiry for cross-
examination is determined by the sound discretion of the
trial court. It is only in the case of clear abuse of such
discretion resulting in manifest prejudice to the defen-
dant that a court of review will interfere. (People v. Bur-
ris, 49 Ill. 2d 98, 273 N.E.2d 605.) The defendant, by tak.
ing the stand, subjected herself to legitimate cross-exami-
nation on matters which were elicited on direct. Any prej-
udice which might have resulted due to improper insinua-
tions was clearly not material to the determination of
guilt. We have carefully scrutinized the defendant’s cross-
examination and conclude that there was no abuse of judi-
cial discretion and that any prejudicial effect was insub-
stantial. Allegedly reprehensible trial conduct will not
result in reversal if the prejudicial impact is not material
to the outcome. However, our Supreme Court has con-
cluded that disciplinary action against offending counsel
may be the only effective deterrent. People v. Butler, 58
Ill. 2d 45, 317 N.E.2d 35.
Defendant next contends that the jury was improperly
interrogated about publicity concerning the trial. Specifi-
cally, defendant points to the trial court’s method of ques-
tioning the jury collectively as to whether any of them
had discussed the case among themselves or read news
media publicity about the case. This form of collective
questioning, defendant argues, precluded any juror from
admitting exposure to extrajudicial publicity.
Defendant’s claim has no merit. The mode of interro-
gating jurors regarding publicity rests with the sound
discretion of the court. (People v. Heller, 131 Ill. App. 2d
799, 267 N.E.2d 685.) At the first instance of being notified
of media coverage, the trial court offered to make any
inquiry requested by defense counsel. Only a general in-
quiry was suggested. The record discloses 14 different
App. 34
occasions in which defense counsel requested and approved
a general inquiry of the jury. At one point, the trial judge
questioned each juror separately in chambers at the re-
quest of defense counsel. Defendant cannot invite the
court to adopt a certain procedure and then urge on ap-
peal that the judge’s action was error. (People v. Rossi,
52 Ill. 2d 13, 284 N.E.2d 275.) Not only do we find the
method of inquiry invited, but we also believe that it was
a fair use of judicial discretion.
Defendant’s final complaint is that the jury was im-
properly instructed in several ways. First, it is argued
that the court erred in giving IPI-Criminal 3.02, which
defines circumstantial evidence, without adding the second
paragraph of that instruction. The language rejected by
the court reads as follows:
‘“‘You should not find defendant guilty unless the
facts and circumstances proven exclude every reason-
able theory of innocence.’’
The committee note appearing after this instruction
states that the above language should be given only when
the proof of guilt is entirely circumstantial. The State in
the instant case introduced three witnesses who testified
to admissions allegedly made by the defendant. The tes-
timony of those witnesses can clearly be considered direct
evidence. The above language was properly excluded from
the circumstantial instruction. People v. Brooks, 7 II.
App. 3d 767, 289 N.E.2d 207; People v. Christiansen, 118
Ill. App. 2d 51, 254 N.E.2d 156.
The second argument raised by defendant is that the
giving of IPI-Criminal 3.06 instructing the jury on the
consideration which should be accorded to defendant’s al-
leged admissions was prejudicial. Defendant suggests that
the term ‘‘statement’’ should have been utilized by the
court rather than the word ‘‘admission.’’
ee ete ee ae ee 0k oe Bho tem 2 ete ree
App. 35
An admission is a statement of independent facts from
which guilt may or may not be inferred. An admission is
not a confession, the latter being a voluntary acknowl-
edgement of guilt comprehensively encompassing all the
elements of the crime. (People v. Koch, 15 Ill. App. 3d 386,
304 N.E.2d 482.) IPI-Criminal 3.06 is a simple, unbiased
instruction designed to inform the jury that the weight
of an alleged admission should be determined from all
the circumstances under which it was made. The instruc-
tion was not prejudicial to the defendant.
Finally, defendant contends that the court denied her
the right to have the jury instructed on her theory of the
ease. Specifically, defendant claims it was error for the
court to refuse to instruct the jury that the State had to
prove that the shooting of Joseph Carbona was not an
accident. Instead, the court gave IPI-Criminal 7.02 which
states that a person who kills another without lawful
justification commits murder if in performing the acts
which caused death (1) she knows that such acts create a
strong probability of death or great bodily harm, or (2)
she either intends to kill or do great bodily harm, or
knows that such acts will cause death. The jury was also
instructed that excusable homicide by misadventure or
accident ‘‘is when a person is doing a lawful act without
intention of killing, yet unfortunately kills another.’’ The
jury was further instructed that excusable homicide was
a question of fact which they must decide.
Supreme Court Rule 451 (Ill. Rev. Stat. 1971, ch. 110A,
par. 451) provides that whenever an Illinois Pattern In-
struction in Criminal Cases is applicable it shall be used
by the court unless the instruction does not accurately
state the law. The jury in the instant case was properly
instructed as to the State’s burden in proving the elements
and issues of the crime of murder. The jury was also in-
App. 36
structed as to the mental state required before the defen-
dant could be found guilty. Additionally, the court de-
fined death by accident or misadventure for the jury. Since
all of the appropriate instructions from the Illinois Pat-
tern Instructions for Criminal Cases were given, we see
no need to instruct the jury that the State must prove that
death did not oceur by accident or misadventure. People
v. Witherspoon, 55 Ill. 2d 18, 302 N.E.2d 3; People v.
Puckett, 6 Til. App. 3d 206, 285 N.E.2d 258.
For these reasons, judgment is affirmed.
Judgment affirmed
Go.tpperc and Eean, J.J., concur.
App. 37
APPENDIX B
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
People
v No. 59299
Carbona
Petition For Rehearing Was Denied In This Court On
May 15th, 1975.
Leslie V. Beck, Clerk
App. 38
APPENDIX C
UNITED STATES OF AMERICA
State of Llinois)
) ss.
Supreme Court )
At a Term of the Supreme Court, begun and held in
Springtield, on Monday, the eighth day of September in the
year of our Lord, one thousand nine hundred and seventy-
five, within and for the State of Illinois.
Be It Remembered, that, to-wit: on the 25th day of
September, 1975, the same being one of the days of the
term of Court aforesaid, the following proceedings were,
by said court, had and entered of record, to-w't-
People State of Illinois,
Respondent
No. 47646 vs.
Ruthe Carbona,
Petitioner
Petition for Leave to Appeal from Appellate Court
First District
59299
And now on this day the Court having duly considered
the Petition for Leave to Appeal herein and being now
fully advised of and concerning the premises, doth over-
rule the prayer of the petition and denies Leave to Appeal
herein.
(SEAL) /s/ Clell L. Wesus, Clerk,
Supreme Court of the State of Illinois.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.