# Petition — Carbona v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 914

## Text

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
—

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

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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

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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 *

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1479%3A1. Public record. Not legal advice.