People v. Cosmano , 2011 IL App (1st) 101196 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Cosmano, 2011 IL App (1st) 101196Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL COSMANO, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-10-1196
Filed December 27, 2011
Held Defendant’s conviction for a 1981 murder was upheld over his
(Note: This syllabus contentions that several comments in the State’s closing argument were
constitutes no part of improper, that improper evidence concerning the weapon he possessed at
the opinion of the court the time of his arrest was elicited, that the State violated discovery rules
but has been prepared and used false testimony, and that the trial court erred in refusing to
by the Reporter of dismiss a juror on defendant’s request.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-11919; the
Review Hon. Vincent Gaughan, Judge, presiding.
Judgment Affirmed.
Counsel on Edward M. Genson, of Genson & Gillespie, and Marc W. Martin, of
Appeal Marc Martin, Ltd., both of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg and Janet
C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE KARNEZIS delivered the judgment of the court, with opinion.
Justices Hall and Rochford concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Michael Cosmano was convicted of the 1981 murder
of Milton Rodriguez. On appeal, defendant argues: (1) the State made numerous improper
comments during closing argument, the cumulative effect of which warrants a new trial; (2)
the State elicited improper evidence regarding a gun defendant possessed at the time of his
arrest; (3) the State used false testimony and violated discovery rules; and (4) the trial court
erred when it denied defendant’s request to dismiss a juror. For the following reasons, we
affirm the judgment of the trial court.
¶2 BACKGROUND
¶3 On June 12, 1981, Milton Rodriguez, a delivery driver for Bella’s Pizza, was shot in the
alley behind Bella’s Pizza. The murder went unsolved. The case was reopened by “cold case”
investigators 26 years later. The investigators reinterviewed the same persons who had been
interviewed at the time of the shooting in 1981. This time, defendant, the owner of Bella’s
Pizza, was implicated. He was indicted for first degree murder and was subsequently
convicted.
¶4 At trial, Ivan Kevo testified that on June 12, 1981, he lived across the alley from Bella’s
Pizza. As he was setting the table for dinner, he heard a shot. He looked out the window and
saw a man lying in the alley. Kevo saw about 10 people running in different directions. He
assumed that the people were Bella’s Pizza delivery drivers. Kevo called 911.
¶5 Frank Mildenberger testified that on June 12, 1981, he and his girlfriend Helen
Berthorolmey ate at Bella’s Pizza. After they ate, they got their bicycles and walked to the
alley to go toward his mother’s house. While they were walking their bikes through the alley,
Mildenberger saw two men; one was sitting on the wall and the other was standing in front
of him. Mildenberger and Berthorolmey walked past the men, but when they got a short
distance past, Mildenberger turned around and looked back at the men. Mildenberger saw
the man who was standing pull out a gun and shoot the man sitting on the wall. Mildenberger
told Berthorolmey what he saw. Mildenberger did not see where the man with the gun went
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after he fired the shot.
¶6 Mildenberger talked to the police later that day. He described the man who shot the gun
as being between 5 feet 7 inches and 5 feet 9 inches, with black hair, wearing dress slacks,
a “whitish tanish” shirt and black shoes. Mildenberger did not recall if he told police that he
saw the shooter get into a car after the shooting. Mildenberger viewed a lineup on June 22,
1981. He was shown a photograph of the lineup in court and was asked if the photograph
accurately depicted the lineup he viewed on June 22, 1981. Mildenberger responded yes. He
was then asked if he picked out anyone in the lineup. Mildenberger used the photograph to
point out the person he selected as the shooter in the lineup. Mildenberger added that when
he selected the “shooter” in the lineup, he was told that the person he selected was a Chicago
police officer.
¶7 Mildenberger testified that on June 22, 1981, he told police officers that he thought the
shooter was the owner of Bella’s Pizza. Mildenberger testified that he had never been
introduced to the owner of Bella’s Pizza and did not know the owner’s name. Mildenberger
assumed “he was the owner of the pizza place because the way he was dressed and the car
that I had seen him supposebly [sic] if he was the shooter or not that it was parked there in
the alley right where the deceased had gotten shot at.”
¶8 In August 2007, Chicago police detectives interviewed Mildenberger about the June 21,
1981, shooting. During that interview, Mildenberger reiterated that he believed the shooter
was the owner of Bella’s Pizza.
¶9 In September 2008, a private investigator named Jack Byrne spoke with Mildenberger.
Mildenberger gave the same description of the shooter to Investigator Byrne as he had given
to the police in 1981. Mildenberger could not remember if he told the police in 2007 or the
investigator in 2008 that the shooter had slick, combed-back black hair. Mildenberger could
not recall whether he had told the investigator that the shooter was the owner of Bella’s
Pizza, because he was nervous that day. Mildenberger told Investigator Byrne he did not
think the shooter and the owner of Bella’s pizza were the same person. Mildenberger spoke
with the investigator about the gun he had observed. Mildenberger told the investigator that
he owned a BB gun that looked similar to the gun he observed the shooter use. The
investigator was shown the gun. The State then showed Mildenberger a photograph of a
“similar gun.”
¶ 10 Detective Griffin testified that he was assigned to investigate the shooting death of
Milton Rodriguez in the alley behind Bella’s Pizza. He viewed the scene of the crime and
interviewed the police officers who were on the scene when he arrived. Based on his
conversation with the officers, Detective Griffin learned that they were looking for a possible
Hispanic offender and a 1972 to 1974 blue Chevrolet Nova. He also learned that Frank
Mildenberger and Helen Berthorolmey had been in the alley at the time of the shooting and
had heard part of a conversation between the shooter and the victim.
¶ 11 Detective Griffin interviewed Frank Mildenberger and Helen Berthorolmey at the scene
and at the police station. They described the shooter as male, Hispanic, with a medium
complexion, about 40 years old, 5 feet, 9 inches, 195 pounds with black, straight hair,
combed back. The offender was wearing a light blue, short-sleeved shirt with jeans and black
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shoes and was driving a light blue four-door Chevrolet Nova.
¶ 12 After interviewing several other people, including Wilson Maldonado, Juan Torres, Ivan
Kevo, Herman Rivera, Enrique Maldonado, James Bufka and John Chavez, Detective Griffin
noted that he needed to speak with a man named Vega who was with Milton Rodriguez when
Milton was shot. Detective Griffin learned that Enrique Maldonado had a blue two-door
Chevy Nova. After learning this, Detective Griffin was no longer interested in finding the
Nova.
¶ 13 Detective Griffin was called to the station when Vega arrived. When he got to the station,
Clemente Valencia was there. Valencia was a manager at Bella’s Pizza. After having a
conversation with Valencia, Detective Griffin began looking for defendant so that he could
question him about the murder. Arrangements were made with defendant’s attorney, Anthony
Onesto, for defendant to participate in a lineup.
¶ 14 Five people participated in the lineup including defendant, defendant’s brother, another
Bella’s employee, a police detective and an unknown person. Both Mildenberger and
Berthorolmey viewed the lineup and neither identified defendant as the shooter. Both said
that the shooter’s hair was straighter and darker than defendant’s hair.
¶ 15 The shooting death of Milton Rodriguez went unsolved and became a “cold case.” In
August 2007, 26 years after the shooting, Guillermo “Willie” Navas, also known as
Clemente Valencia, came forward and spoke with Detective Robert Rodriguez. Willie told
Detective Rodriguez where he could find Wilson Maldonado and Enrique Maldonado.
Detective Rodriguez and other detectives located and interviewed Wilson Maldonado,
Enrique Maldonado, James Bufka, Frank Mildenberger, Helen Berthorolmey, Juan Torres,
Herman Rivera and Ron Kepco.
¶ 16 Defendant was arrested on May 5, 2008, near his home. After the story of defendant’s
arrest ran in the newspaper, Detective Rodriguez received a call from Carmen Murillo, who
had not been listed as a witness in any of the police reports from 1981. After speaking with
Murillo, Detective Rodriguez met with Murillo’s sister, Florence Balsitis. Balsitis had not
been listed in any reports either.
¶ 17 Yolanda Tribett testified that she worked in the gun registration department of the
Chicago police department. A search revealed that defendant registered a .45 Colt
Commander with a 4.5-inch barrel on May 3, 1976.
¶ 18 William Demuth testified that he worked in the Illinois State Police and was an expert
in the field of firearms and firearm identification. In September, 2007, he received a single
fired cartridge case recovered in 1981. He examined it and determined that it was a .45-
caliber automatic cartridge case that was consistent with being fired from a Colt Commander
but could have been fired from millions of weapons.
¶ 19 Hemenegilo “Herman” Rivera testified that he worked at Bella’s Pizza on June 12, 1981,
as a delivery driver. Rivera identified defendant as the owner of Bella’s Pizza but called him
“Mike Romano.”
¶ 20 At about 4:30 p.m. on June 12, 1981, Rivera heard several other drivers in the alley
having a conversation with “Mike” and Willie, a manager, about a $0.25 raise. Defendant
refused to give the $0.25 raise and he and Willie went back inside Bella’s Pizza. Later,
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defendant and Willie came back outside and went to speak to Milton Rodriguez, who was
sitting on a short wall drinking beer. Rivera could not hear what was being said. Rivera heard
a shot. He “thought” defendant had a gun and fired the shot. Rodriguez fell to the ground.
Defendant and Willie went back inside. Rivera also went back inside to get some pizzas and
saw defendant.
¶ 21 Rivera testified that when the police arrived at the scene, they did not speak with him.
The police reports from 1981 show, however, that police did speak with Rivera and that
Rivera told police that Rodriguez had been with Vega. Rivera testified that he did not say
anything to anyone about the shooting because he was told by other Bella’s drivers not to.
He did not talk to the police because he was afraid of defendant and he feared defendant was
in the Mafia, although he did not know for sure if defendant was involved in organized
crime. The police came to Rivera’s house in January 2008, asking what, if anything, Rivera
knew about the shooting. Rivera told police that defendant was having a conversation with
Rodriguez and then a shot was fired.
¶ 22 Wilson Maldonado and his brother Enrique worked as pizza delivery persons for Bella’s
Pizza in June of 1981. On June 12, 1981, defendant and manager Willie were speaking with
some of the drivers in the alley about a raise. Defendant indicated that he would not give the
drivers a raise until business was better. Milton Rodriguez told defendant that he did not have
the brains to increase business. Defendant then walked back inside.
¶ 23 About 10 to 15 minutes later, defendant approached Rodriguez, who was sitting on a low
wall in the alley. Other drivers were present in the alley. Wilson heard a shot and saw
Rodriguez fall. Wilson ran to Rodriguez and held him until police arrived. Wilson did not
see defendant until a few minutes later when defendant walked to his car.
¶ 24 Wilson was interviewed by police following the shooting. He testified that he told the
police what had happened. Several days later, a few men came into Bella’s and spoke with
Wilson about the shooting. They indicated to Wilson that they worked for defendant and
asked Wilson some questions about the shooting.
¶ 25 Wilson testified that he had not seen Vega since the shooting but possibly saw him one
or two weeks after the shooting. Wilson continued to work at Bella’s for nine or 10 years
after the shooting. Wilson had been arrested over 30 times between 1981 and his 2010
testimony in court.
¶ 26 Enrique Maldonado had also been arrested over 30 times between 1981 and 2010 and had
been convicted of both state and federal drug-related felonies. On June 12, 1981, Enrique
was employed as a Bella’s delivery driver and drove a blue Chevrolet Nova. Enrique was
present for the conversation with defendant and managers Jim and Willie about the raise.
Enrique later saw defendant standing in front of Milton Rodriguez, who was sitting on a half-
wall in the alley. Enrique heard Rodriguez say that someone should call the police because
“they were going to kill him.” As he was placing pizzas in his car, he heard a shot and saw
Rodriguez fall from the wall. Defendant walked back toward Bella’s and the others walked
in different directions. Enrique drove away when police arrived because he did not want to
get involved because he was on federal parole for a drug charge.
¶ 27 After the shooting, he went to a halfway house where he had to report because he was on
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parole. Although he saw his parole officer, he did not inform the parole officer that he had
just witnessed a shooting. He returned to Bella’s later that night and learned that police were
looking for him. Enrique stated that he did not tell the police that he was present when
Rodriguez was shot, but told police that he was making deliveries at that time. Enrique
denied telling police that he was with Juan Torres, Herman Rivera and his brother Wilson,
and did not tell them that he had left the area before the shooting. Enrique worked at Bella’s
for another eight years. He never told anyone that he witnessed the shooting until
investigators questioned him in 2008.
¶ 28 Juan Torres was also a delivery driver at Bella’s and was present on June 12, 1981, for
the discussion between defendant, the managers and the drivers about the raise. Torres
testified that Rodriguez told defendant that he needed a brain to make more money.
Defendant confronted Rodriguez about the comment and then walked back inside Bella’s.
¶ 29 About 20 minutes later defendant, Willie and Jim Bufka came out and walked toward
Rodriguez, who was sitting on a wall in the alley drinking a beer. Defendant walked up to
Rodriguez, pulled an item that looked like a gun from his back, and shot in the air. Rodriguez
fell off of the wall. Torres did not see where defendant went.
¶ 30 Torres was taken to the police station later that night but did not recall telling police what
he had seen. He also denied saying he was inside Bella’s with Wilson Maldonado and
Herman Rivera when Rodriguez was shot. Torres explained that “everyone” was afraid of
defendant because “[p]robably they think it was a mafia guy.” About a month after the
shooting, some men came to Bella’s to talk to him about the shooting. He could not
remember what they said but he signed a paper at the end of the conversation. Nevertheless,
Torres continued to work at Bella’s for nine years after the shooting.
¶ 31 In January 2008, he was contacted by detectives about the shooting. He initially did not
want to speak and said that he had “heard” Rodriguez was shot behind Bella’s. He later told
the detectives that he was present when Rodriguez was shot.
¶ 32 James Bufka testified that on the day of the shooting he was working as the night
manager at Bella’s Pizza. When he arrived for work, he and defendant learned that Milton
Rodriguez had punched a cook. Defendant and Bufka walked outside into the alley and
approached Rodriguez, who was sitting on a low wall, drinking a beer. As defendant
approached Rodriguez, Rodriguez called defendant a “big shot” and “mister tough guy.”
Defendant responded that “yeah, I’m a tough guy.” Defendant had a gun and Rodriguez did
not. Defendant raised the gun and shot Rodriguez, who fell to the ground. Defendant then
stated, “self-defense” and walked back into Bella’s. The police never spoke with Bufka after
the shooting.
¶ 33 Later that evening, two men arrived at Bella’s and escorted Bufka to a lawyer’s office,
where he was introduced to the lawyer and other men who were allegedly ex-federal law
enforcement. The men told Bufka what could happen to him if he was picked up for
questioning. The lawyer gave Bufka business cards.
¶ 34 Bufka did not make any effort to contact the police after the shooting or after speaking
to the lawyer and the men. He did not discuss the shooting until 2008, when he was
approached by Detective Rodriguez. Bufka explained that he did not want to get involved
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because he was concerned for his safety as he had heard rumors that defendant was involved
in the mob. Bufka continued to work at Bella’s for some time until he quit because of
“something about food.”
¶ 35 Carmen Murillo testified that in June 1981, his father worked as a delivery driver for
Bella’s Pizza. Carmen, who was 15 at the time, worked in the kitchen and his sister Florence
helped their father deliver pizzas. Carmen was present when defendant and Willie argued
with the drivers about money and working conditions. Shortly after defendant reentered the
restaurant, defendant, along with Willie and Jim Bufka, left through the back door into the
alley. Defendant had a gun in his hand. Carmen heard a gunshot. Defendant returned to the
restaurant with a gun in his hand and gave the gun to Jack, the off-duty police officer who
worked security for Bella’s. Jack escorted defendant out of Bella’s. Carmen did not talk to
the police the day of the shooting.
¶ 36 The next day, a private investigator came to Bella’s and questioned Carmen about what
he knew. Carmen did not tell the investigator what he knew because his father had told him
and his sister not to talk to anyone about it. Carmen stated that he was afraid because he had
heard that defendant had friends in the Mafia. Carmen spoke with Detective Rodriguez in
May 2008 and told Detective Rodriguez what he remembered.
¶ 37 Florence Balsitis was 13 in June, 1981. She helped her father deliver pizzas for Bella’s.
On June 12, 1981, she was in Milton Rodriguez’s car in the alley behind Bella’s, petting his
dog, and saw defendant and Rodriguez in a heated discussion. Willie and Jim were also
present. Balsitis saw defendant shoot Rodriguez and return to Bella’s with the gun in his
hand. Florence’s father grabbed her and told her, “You didn’t see a thing. You don’t say a
thing. You just come with me. Never talk about this again,” and then drove her home.
¶ 38 Balsitis identified defendant in a photo of the lineup done in 1981. She testified that
defendant appeared different in the photo than he did on the day of the shooting. Balsitis
testified that defendant wore his hair slicked back, but in the photo, his hair was curly.
¶ 39 Balsitis did not talk to the police in June 1981. She first spoke to police in 2008, but did
not identify defendant. She was afraid for herself and her family because she had heard
rumors that defendant was related to organized crime. In December 2009, Balsitis met with
an assistant State’s Attorney. She testified the first time she ever told anyone that defendant
had changed his hair was during that meeting. The parties stipulated that the first time
Balsitis mentioned anything about defendant’s hair appearing different in the photo lineup
from 1981 was on January 10, 2010, the Sunday before the trial began.
¶ 40 The parties stipulated that the Chicago police department did a background check of
defendant in an effort to determine whether or not defendant was associated with organized
crime. The background check did not reveal any evidence that defendant was connected with
organized crime or the Mafia at any time.
¶ 41 Detective Griffin testified for the defense. Detective Griffin testified that his reports from
1981 indicated that he interviewed Frank Mildenberger, Ivan Kevo, Wilson Maldonado,
Herman Rivera, Enrique Maldonado, Juan Torres, James Bufka and John Chavez. The
summary of the interview with Rivera indicated that Rivera told police he was at Bella’s,
corroborated what Torres told the police and substantiated where Torres and Wilson
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Maldonado were at the time of the shooting. The summary of what Juan Torres told police
was that he was with Wilson Maldonado and Herman Rivera during the shooting. They were
directly behind Bella’s and out of eyesight of Rodriguez. The summary also indicated that
Torres told police that he left the victim about five minutes before the shooting and the
victim was talking to someone named Vega. The summary of the interview with Enrique
Maldonado stated that Maldonado told police that he was with Torres, Rivera and his brother
Wilson and left before any shot was fired. The police also interviewed Wilson Maldonado.
The summary of the interview with Wilson does not indicate that Wilson witnessed the
shooting. There were two witnesses who said that Wilson Maldonado and Juan Torres were
involved in the shooting. The reports indicate that the witnesses stated they would cooperate
in the investigation and could identify the offender. The police obtained the witnesses’
identifying information.
¶ 42 Detective Rodriguez was also called by the defense. Detective Rodriguez interviewed
Enrique Maldonado on February 29, 2008. During that interview, Enrique did not state that
he had gone to meet with his parole officer on the day of the shooting.
¶ 43 Detective Rodriguez interviewed Carmen Murillo in May 2008. Detective Rodriguez’s
report does not include that Murillo told Detective Rodriguez that after he shot the victim,
defendant handed the gun to Jack, the off-duty Chicago police officer. In addition, Carmen
told Detective Rodriguez that after the shooting, his father made him and his sister get in the
car and leave. Balsitis corroborated this in her interview.
¶ 44 The parties stipulated that Assistant State’s Attorney Matthew Thrun would testify that
he interviewed Enrique Maldonado on March 4, 2008, prior to his appearance before the
grand jury. Enrique never stated that he met with a federal parole officer on June 12, 1981,
after the shooting.
¶ 45 Cook County State’s Attorney’s Office Investigator John Duffy testified that he
interviewed John “Jack” Howell. Howell stood in the initial lineup in 1981. Investigator
Duffy spoke with Frank Mildenberger in July 2009. Before that however, Mildenberger
received a copy of a report prepared by private investigator John Byrne regarding
Mildenberger’s interview with Investigator Byrne. That report contained Mildenberger’s
description of the shooter: skinny with combed-back hair. Investigator Byrne’s report
indicated that he asked Mildenberger whether or not he thought the shooter was the owner
of Bella’s pizza and that Mildenberger replied that he did not. Investigator Duffy testified
that Mildenberger told him that even though he was 15 years old at the time of the shooting,
he would still recognize the shooter if he saw him.
¶ 46 Investigator Duffy also testified that Mildenberger had told the original detectives that
he believed the shooter was the owner of Bella’s Pizza based on the way he was dressed and
his car. Mildenberger did not identify defendant in the lineup in 1981.
¶ 47 The parties stipulated that Assistant State’s Attorney Tina Morris would testify that when
she presented Carmen Murillo to the grand jury, Murillo testified that defendant held the gun
by his side with his left hand, stopped by the door and placed the revolver in the back of his
pants.
¶ 48 After hearing all of the evidence, the jury found defendant guilty of murder. Defendant
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was sentenced to 29 years’ imprisonment. It is from this judgment that defendant now
appeals.
¶ 49 ANALYSIS
¶ 50 A. Closing Argument
¶ 51 Defendant argues that the State made numerous improper comments during closing
argument. First, defendant claims that the State “exploited” Mafia evidence by making
arguments not based on evidence in the record during closing argument. Second, defendant
argues that the State erroneously commented on defendant’s failure to produce evidence.
Third, defendant argues that the State improperly argued that defendant must have been
guilty because he obtained an attorney thereby violating his sixth amendment right. Finally,
defendant claims that the State argued “rank hearsay” as substantive evidence during closing
argument. Defendant urges that the cumulative effect of these errors merits a new trial.
¶ 52 At the forefront, it is important to note that the parties disagree on the standard of review
for issues relating to closing argument. We recognize that our appellate courts are divided
on the standard of review for closing remarks. People v. Maldonado, 402 Ill. App. 3d 411,
421 (2010). The confusion stems from two supreme court cases. In People v. Wheeler, 226
Ill. 2d 92, 121 (2007), the supreme court held that whether a prosecutor’s remarks are so
egregious as to require a new trial presents a question of law that is reviewed de novo.
However, the Wheeler court also cited with approval People v. Blue, 189 Ill. 2d 99 (2000),
wherein the court applied the abuse of discretion standard to review a prosecutor’s remarks
during closing argument. Wheeler, 226 Ill. 2d at 121.
¶ 53 This division of this district has noted the conflict but has declined to determine the
appropriate standard of review where the result would be the same regardless of the standard
applied. See Maldonado, 402 Ill. App. 3d at 422; People v. Anderson, 407 Ill. App. 3d 662,
676 (2011). Because we would reach the same result under either standard in this case, we
will refrain from discussing the applicable standard until our supreme court resolves the
conflict. Anderson, 407 Ill. App. 3d at 676.
¶ 54 That being settled, the State points out that defendant has forfeited several of the issues
he now raises because he failed to object at trial and/or failed to include the issue in his
postrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Specifically, the State
asserts that forfeiture precludes this court from considering the following issues: (1) the State
“exploited” Mafia evidence where the arguments were based upon facts not contained in the
record; (2) the State improperly shifted the burden of proof to him when the prosecutor
argued that defendant’s gun, similar to that used in the shooting, was never found or
analyzed; and (3) the State argued improper hearsay during closing argument.
¶ 55 Our careful review of the record in this case reveals that defendant did indeed forfeit the
issues as noted by the State. However, we may consider plain errors or defects that affect
substantial rights, even though the errors were not raised at trial. Ill. S. Ct. R. 615(a); People
v. Herron, 215 Ill. 2d 167, 187 (2005). The plain error doctrine allows consideration of an
otherwise forfeited error when:
“(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is
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serious, regardless of the closeness of the evidence. In the first instance, the defendant
must prove ‘prejudicial error.’ That is, the defendant must show both that there was plain
error and that the evidence was so closely balanced that the error alone severely
threatened to tip the scales of justice against him. In the second instance, the defendant
must prove there was plain error and that the error was so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process.”
Herron, 215 Ill. 2d at 187.
Before assessing whether we can consider defendant’s claims under the plain error doctrine,
we must consider whether plain error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565
(2007).
¶ 56 1. Forfeited Errors
¶ 57 It is well settled that prosecutors are afforded wide latitude in closing argument, and even
improper remarks do not merit reversal unless they result in substantial prejudice to the
defendant. People v. Kitchen, 159 Ill. 2d 1, 38 (1994). During closing argument, the
prosecutor may properly comment on the evidence presented or reasonable inferences drawn
from that evidence, respond to comments made by defense counsel which clearly invite
response, and comment on the credibility of witnesses. People v. Rader, 178 Ill. App. 3d 453,
466 (1988). In reviewing whether comments made during closing argument are proper, the
closing argument must be viewed in its entirety and remarks must be viewed in context.
Kitchen, 159 Ill. 2d at 38.
¶ 58 Defendant’s first challenge is to the State’s “exploitation of Mafia evidence” during
closing argument. Defendant is not, however, challenging the admissibility of the Mafia
evidence. Instead, defendant argues that the prosecutor’s repeated references to the Mafia,
remarks about goons, as well as references to testimony unsupported by the record, created
a false and improper impression that defendant was associated with organized crime and
resulted in unfair prejudice that warrants a new trial.
¶ 59 Defendant fully expected that the State’s witnesses would testify that they did not
implicate defendant around the time of the offense based on their subjective beliefs that
defendant was in the Mafia. Prior to trial, the parties agreed that they would stipulate to the
fact that there was no evidence to suggest that defendant was involved in the Mafia or
organized crime. The parties ultimately stipulated as follows:
“That members of the Chicago Police Department did a complete and thorough
background check on the Defendant, Michael Cosmano, in an effort to determine
whether or not the Defendant had any connection with organized crime or the Mafia.
This background check did not find any evidence that the Defendant was in any way
connected to organized crime or the Mafia at any time.”
¶ 60 Despite the fact that there was no evidence that defendant was connected to organized
crime or the Mafia, several of the State’s witnesses testified that they did not implicate
defendant during the initial investigation in 1981 because they believed he was in the Mafia
or had connections to organized crime. Herman Rivera testified that he did not come forward
because defendant is “from the mob.” Defendant’s objection to that comment was sustained.
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The State then asked if Rivera believed “that Mike was involved in any kind of organized
crime,” to which Rivera replied “I didn’t know that for sure.” Juan Torres also testified that
he did not tell the police that he saw defendant shoot Rodriguez because he was afraid of
defendant, that everyone was afraid of defendant because “probably they think it was a Mafia
guy.” Torres testified that after the shooting “some men” came to Bella’s Pizza and he signed
some papers because the men told him to. Jim Bufka testified that after the shooting two men
came to Bella’s Pizza and escorted him to a lawyer’s office where several other men who
purported to be ex-federal law enforcement were waiting. Bufka did not contact the police
before or after this meeting because “there were a lot of rumors about” defendant being
involved in the Mafia or organized crime. Carmen Murillo testified that he was present at
Bella’s Pizza on the night of the shooting. He never spoke to the police because “Mr.
Cosmano had–had a lot of friends, friends in the Mafia.” Murillo’s explanation prompted a
motion for a mistrial by the defense, which was denied. Florence Balsitis testified that shortly
after witnessing the shooting, her father grabbed her and told her, “you didn’t see a thing.
You don’t say anything. You just come with me. Never talk about this again.” She further
testified that she did not identify defendant in 2008 because she was scared for her family.
She had heard rumors that defendant was related to organized crime.
¶ 61 During closing argument, defense counsel called the witnesses’ credibility into question
based on the fact that they waited 26 years to tell the police what happened on June 12, 1981.
Defense counsel stated:
“Nowhere, ladies and gentlemen, are you going to be told in those instructions that if you
wait 28 years to tell the police what you know you get a pass on credibility. Nowhere is
it going to say that. Nowhere is it going to say, oh, overlook the fact that not one of
theses people said they saw a murder on June 12, 1981. The judge is not going to instruct
you, oh, they get a pass because they are scared. Well, if they are scared of Mike, maybe
they are scared of Latin King. Maybe they are scared of another driver. Maybe they are
scared of another manager. Who knows. We don’t know. And we can’t go inside their
heads to figure it out. But I will tell you one thing, we don’t have to buy that bull that he
was in the Mafia, or the mob, or that he was associated because he is an Italian and he
ran a pizza parlor and he worked hard. He owned Bella’s and he opened up another one
in Norridge. That is a working stiff. And he’s is [sic] member of the mob. Give me a
break. You talk about prejudice. Why don’t you just call [him] a grease ball.”
¶ 62 In rebuttal closing, the State responded to defense counsel’s argument regarding the
credibility of the witnesses. The State remarked:
“They are terrified of somebody. He is not in the Mafia. He never had anything to do
with the Mafia. That is not the issue. The issue is what did those witnesses believe. And
when they just saw him shoot a guy down in front of him and hand the gun to an off-duty
Chicago Police Officer, you’re going to think, well, maybe this guy is in the Mafia. And
the rumors were out there. Yes. That is what they believed. That is why they were
terrified.
***
And there is no reason that [Florence] Balsitis would have come forward and got on
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that witness stand and raised her hand and swore to tell the truth when you can see she
is still afraid of that man. Her father told her don’t talk to anyone. He is in the Mafia. He
will kill our family. And she kept quiet.
Talk about Herman Rivera. Talk about a guy scared. Have you ever seen anybody as
scared as he was on the witness stand? He was terrified. 29 years after the fact he is still
terrified that that man is going to kill him because he is in the Mafia. And he didn’t want
to say that he saw defendant shoot and kill Milton Rodriguez.
***
He also talked about the fact that–as Wilson Maldonado did, that the next day after
the shooting–and you want to be scared about something? You think the guy is in the
Mafia? What happens? A couple of goons come in, they say, ‘we want to talk to you, we
want you to sign some papers about what you saw.’ Well, who are these guys? They have
no idea. But they know this isn’t normal. They are not the police. Torres said the same
thing; that some people came in, these goons, wanted them to talk.”
¶ 63 Undoubtedly, the prosecutor’s Mafia comments were invited by the defense. The State
may properly respond to comments made by defense counsel that clearly invite a response.
People v. Hudson, 157 Ill. 2d 401, 444 (1993). Defense counsel questioned the
reasonableness of the witness’s belief that defendant was connected to the Mafia during
closing argument. The prosecutor was merely answering defense counsel’s remarks when he
commented that the witnesses believed that defendant was in the Mafia and, as such, they
were fearful of defendant.
¶ 64 Furthermore, the Mafia comments made by the prosecutor were reasonable inferences
given the testimony of the witnesses. “To be proper, closing argument comments on evidence
must be either proved by direct evidence or be a fair and reasonable inference from the facts
and circumstances proven.” People v. Hood, 229 Ill. App. 3d 202, 218 (1992). Several of the
witnesses testified that they failed to implicate defendant in the shooting because they were
fearful of defendant because they believed he was involved in the Mafia. While Balsitis did
not testify that she feared defendant would kill her family, that inference is reasonable, given
what is known about the Mafia. Likewise, Herman Rivera did not testify that he was afraid
defendant would kill him, but the inference was proper, and therefore not error. With respect
to the comments about the “goons,” the prosecutor’s word choice was poor, but did not
amount to error. Therefore, plain error analysis is improper as to this issue.
¶ 65 Defendant also claims that the prosecutor improperly shifted the burden when it declared
in rebuttal argument, “And we were never able to match the defendant’s gun to this bullet.
Because we don’t have the defendant’s gun. It’s never been analyzed. *** We don’t have
that.”
¶ 66 We find People v. Williams, 40 Ill. 2d 522 (1968), instructive on the issue of whether this
comment by the prosecutor amounts to error. In Williams, our supreme court addressed a
prosecutor’s statements, after the State produced evidence that bullets recovered from two
murder victims were of the same class as a gun known to have belonged to the defendant.
In closing argument, the prosecutor stated:
“ ‘I don’t believe for a second that this man’s gun will ever turn up. It can’t. He can’t
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afford to have that gun ever turn up. And we all know why he can’t do that. We know
why it hasn’t turned up. We know why [the ballistics expert] has not been allowed to
look at it to compare slugs fired from it with slugs in these plastic bags before you.’ ”
Williams, 40 Ill. 2d at 527.
¶ 67 The defendant argued that the prosecutor’s comments shifted the burden of proof and
undercut his right against self-incrimination. Williams, 40 Ill. 2d at 527. In reviewing the
defendant’s claim, the Williams court noted that, “[a] careful analysis of the privilege and the
reason for the prohibition reveals that their purpose is to prevent prejudice to an accused
from his failure to testify, but not to prevent prejudice to his case from his failure to produce
evidence to establish his defense.” (Emphasis omitted.) Williams, 40 Ill. 2d at 527. The court
then went on to discuss how a defendant’s failure to call a witness or to produce evidence
is a proper consideration for the jury and therefore a “legitimate subject of comment by the
prosecution.” Williams, 40 Ill. 2d at 529.
¶ 68 Under Williams, the subject of defendant’s failure to produce a gun, evidence of which
adduced at trial indicated was registered to him, or his failure to explain the absence of the
gun was a “legitimate subject of comment by the prosecution” during rebuttal closing
argument. See Williams, 40 Ill. 2d at 529. The prosecutor did not suggest that defendant was
under a duty to present evidence or to abandon his right against self-incrimination. The
prosecutor merely pointed out the absence of ballistics evidence in this case. Therefore, no
error occurred and plain error analysis is unnecessary.
¶ 69 Defendant next argues that the State argued “rank hearsay” as substantive evidence in
closing argument, when it remarked on an out-of-court identification of defendant by a
deceased witness. In rebuttal closing argument the prosecutor remarked:
“But somebody did come forward on the 13th of June, and that was Guillermo Carmen
Valencia Navas. Or, as we know him, Willie. Willie came forward. We know from the
evidence that Willie came forward. Willie is dead. Willie never testified. Willie was the
day manager. And Willie came forward and walked into a police station and told the
police officers-and how do we know this? Because we can infer. After Detective Griffin
talked to Willie, he started looking for Michael Cosmano back in 1981. That is [sic] guy
that had information that did the shooting. Because Willie told. Or they wouldn’t have
been looking for him. He wouldn’t have called his attorney, Anthony Onesto, and asked
him to bring his client that Willie told them what happened.”
¶ 70 Defendant analogizes the prosecutor’s remarks with those found to be reversible error
in People v. Rivera, 277 Ill. App. 3d 811 (1996). In Rivera, a detective testified that when
the defendant and two other men stepped out of the squad car, people identified them as the
perpetrators by saying, “yeh, that’s them.” The court sustained defense counsel’s objection
to the statement and instructed the jury to disregard the statement. Later, the prosecutor
referenced the stricken testimony when he asked the detective, “[b]ased on that conversation
did you do anything with the defendant and the other two?” The detective responded that he
“took them over to the area, 11th, 727 east 111th” and turned them over to police personnel.
During closing argument, the prosecutor said:
“ ‘Officer Brown wasn’t there when the shooting occurred either, but Officer Brown
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told you he was out there covering the scene, he received information, went to a nearby
location, just a couple of blocks away and Officer Brown makes an arrest. He sees these
guys, brings them over there. One guy has a checkered shirt with the war colors on it.
Brings them over, has a conversation with some citizens and he runs these guys into the
detectives.’ ” (Emphasis omitted.) Rivera, 277 Ill. App. 3d at 818.
¶ 71 The Rivera court found the out-of-court identification testimony and the subsequent
comments regarding the same during closing argument resulted in error. The court held that
the resulting prejudice from an out-of-court identification by people who cannot be cross-
examined to be “palpable” and found that “[h]earsay testimony identifying the defendant as
the one who committed the crime cannot be explained away as ‘police procedure,’ even
where the trial judge limits the evidence to a nonhearsay purpose.” Rivera, 277 Ill. App. 3d
at 819-20 (citing People v. Singletary, 273 Ill. App. 3d 1076, 1084 (1995)).
¶ 72 The State argues that the comments made by the prosecutor during closing argument
differ from the out-of-court identification testimony in Rivera, because the prosecutor’s
argument simply detailed the course of the police investigation. The State likens the
testimony and comments made during closing argument to those found in People v.
Henderson, 142 Ill. 2d 258 (1990) (declined to follow on other grounds People v. Terry, 183
Ill. 2d 298 (1998)).
¶ 73 In Henderson, our supreme court held that a defendant’s sixth amendment right is not
infringed upon by testimony recounting steps taken in a police investigation, “even if a jury
would conclude that the police began looking for a defendant as a result of what
nontestifying witnesses told them, as long as the testimony does not gratuitously reveal the
substance of their statements and so inform the jury that they told the police that the
defendant was responsible for the crime.” Henderson, 142 Ill. 2d at 304. The court
determined that the testimony of a police officer that involved the issue of whether defendant
became a suspect after the police talked to another witness was merely a recounting of the
steps taken in a police investigation. However, the Henderson court agreed with the
defendant that “it was error for the prosecutor to say in his closing argument that the police
talked to Alonzo and ‘he is kind of helping ***. He gives them certain information. He tells
them about Croft and Henderson.’ ” Id. at 305. The court found that this comment was
improper because “it suggested the content of Alonzo’s statements to the police.” Id.Nevertheless, the court found the error to be harmless where the trial court sustained an
objection to the comment. Id.¶ 74 As in Rivera, the prosecutor’s comments in closing argument in this case went beyond
recounting the steps taken in the police investigation and beyond inferring that Willie
implicated defendant. Like the comments made during closing argument in Henderson, the
prosecutor’s comment suggested the content of Willie’s statement to the police. The
prosecutor went from toeing the line to taking a giant leap over it when he stated, “[t]hat is
[sic] guy that had information that did the shooting. Because Willie told. Or they wouldn’t
have been looking for him. He wouldn’t have called his attorney, Anthony Onesto, and asked
him to bring his client that Willie told them what happened.” Clearly, the prosecutor’s
statement regarding the out-of-court identification of defendant was error.
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¶ 75 Does this error amount to plain error? Defendant argues that the evidence in this case was
closely balanced and therefore he has demonstrated plain error under the first prong. Whether
the evidence is closely balanced is a separate question from whether the evidence is sufficient
to sustain a conviction beyond a reasonable doubt. Piatkowski, 225 Ill. 2d at 565. The closely
balanced standard errs on the side of fairness and grants a new trial even if the evidence was
otherwise sufficient to sustain a conviction. In re M.W., 232 Ill. 2d 408 (2009).
¶ 76 Contrary to defendant’s argument, he cannot establish prejudice from this error given the
evidence in this case. Although there was no physical evidence in this case, no fingerprints,
no DNA, and no ballistics evidence, eight witnesses testified that defendant shot and killed
Milton Rodriguez. Frank Mildenberger testified that he saw a man whom he believed to be
the owner of Bella’s Pizza shoot and kill Milton Rodriguez, who was sitting on a wall in the
alley. Herman Rivera, Wilson Maldonado, Enrique Maldonado, Juan Torres, James Bufka
and Florence Balsitis testified that they saw defendant shoot and kill Milton Rodriguez as he
sat on a low wall in the alley. Carmen Murillo was in the kitchen and observed defendant
walk out into the alley with a gun, heard a gunshot moments later, and then observed
defendant return to the kitchen with the gun. While all of these witnesses other than
Mildenberger waited 26 years to come forward with information implicating defendant, the
trier of fact is in the best position to determine the credibility of the witnesses, to resolve any
inconsistencies or conflicts in their testimony, to assess the proper weight to be given to their
testimony and to draw reasonable inferences from all of the evidence. People v. Cochran,
323 Ill. App. 3d 669, 679 (2001). Because the evidence was not closely balanced, any error
in closing argument did not affect the outcome of the trial and defendant cannot demonstrate
plain error under the first prong.
¶ 77 Likewise, defendant cannot establish plain error under the second prong of the plain error
analysis because the error in closing argument was not a structural error. Under the second
prong, the defendant must prove there was plain error and that the error was “so serious that
it affected the fairness of the defendant’s trial and challenged the integrity of the judicial
process.” Herron, 215 Ill. 2d at 187.
¶ 78 Error under the second prong of plain error analysis has been equated with structural
error, meaning that automatic reversal is only required where an error is deemed to be a
systemic error that serves to “erode the integrity of the judicial process and undermine the
fairness of the defendant’s trial.” (Internal quotation marks omitted.) People v. Glasper, 234
Ill. 2d 173, 197-98 (2009). In other words, “[a]n error is typically designated as structural
only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of
determining guilt or innocence.” People v. Thompson, 238 Ill. 2d 598, 609 (2010). Structural
errors have been recognized in only a limited class of cases, including: a complete denial of
counsel; trial before a biased judge; racial discrimination in the selection of a grand jury;
denial of self-representation at trial; denial of a public trial; and a defective reasonable doubt
instruction. Thompson, 238 Ill. 2d at 609. Error in closing argument does not fall into the
type of error recognized as structural. Therefore, defendant has not established plain error
under the second prong.
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¶ 79 2. Preserved Errors
¶ 80 Defendant also raises two claims with respect to closing argument that were not forfeited.
First, defendant claims that the State made an improper comment about his attorney that
penalized him for exercising his sixth amendment right to counsel. Second, defendant argues
that during rebuttal closing argument, the prosecutor improperly commented on defendant’s
failure to produce evidence, thereby shifting the burden of proof to defendant.
¶ 81 With respect to the first claim, during rebuttal closing argument, the prosecutor
stated:
“He also talked about the fact that–as Wilson Maldonado did, that the next day after the
shooting–and you want to be scared about something? You think the guy is in the Mafia?
What happens? A couple of goons come in, they say, ‘we want to talk to you, we want
you to sign some papers about what you saw.’ Well, who are these guys? They have no
idea. But they know this isn’t normal. They are not the police. Torres said the same thing;
that some people came in, these goons, wanted them to talk. Well, why would they–he
said he thought they were working for Mike Cosmano’s lawyer. Well, if he didn’t shoot
anybody, why is Mike Cosmano’s lawyer–Anthony Onesto was his lawyer back then–.”
¶ 82 Defense counsel objected and the court instructed the jury to disregard “that statement.”
Defense counsel then indicated that he “had a motion,” to which the court responded “I
understand. Later. The jury will completely disregard that last statement made by the
prosecution.”
¶ 83 The State then continued with its rebuttal closing argument. At the conclusion, and
outside the presence of the jury, defense counsel told the judge, “[b]ased on several
comments made by [the prosecutor], we are going to move for a mistrial, specifically, the
comment about the lawyer on June 12th or June 13th.” The court noted that it “gave a
cautionary instruction about it.” Defense counsel responded that he appreciated the court’s
attempt to remove the inference, “but I respectfully suggest to the Court it was pretty well
recognized that is [sic] an inference that is very difficult for a court to remedy.” The court
denied defense counsel’s request for a mistrial.
¶ 84 Citing People v. Meredith, 84 Ill. App. 3d 1065 (1980), defendant argues that the
prosecutor’s comment was designed to show consciousness of guilt and had the effect of
punishing defendant for exercising his sixth amendment right to counsel. In Meredith, the
defendant argued that the prosecutor’s closing argument questioned his innocence because
he sought the assistance of counsel, thereby penalizing him for exercising his sixth
amendment right. In closing argument, the prosecutor stated that “ ‘he says that he talked to
these people *** he called his lawyer ***. *** I submit he knew he had shot those people
[and] that is why he went to go call his lawyer.’ ” Meredith, 84 Ill. App. 3d at 1071. On
appeal, this court concluded that the prosecutor’s comment regarding the defendant’s phone
call to his attorney the morning after the shooting was prejudicial error. The Meredith court
reasoned that the comment and resulting inference equated defendant’s guilt with the
exercise of his sixth amendment right, thereby punishing him for exercising that right. In
reversing defendant’s conviction and remanding for a new trial, the court held that the error
was not harmless where the evidence was not overwhelming and the verdict relied on the
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jury’s assessment of the credibility of the witnesses in determining which version of the
events to believe. Meredith, 84 Ill. App. 3d at 1071.
¶ 85 The State does not contest defendant’s assertion that, under Meredith, the prosecutor’s
argument to the jury regarding defendant’s exercise of his sixth amendment right to an
attorney was improper. The State argues that any error was cured by the trial judge’s
subsequent admonishments and instructions to the jury.
¶ 86 Defendant cites People v. Lewis, 269 Ill. App. 3d 523 (1995), in support of his contention
that the trial court’s subsequent admonishment and instructions to the jury did not cure the
error. In Lewis, a witness made a reference to a polygraph examination taken by the victim.
The trial judge sustained defense counsel’s objection to the comment, struck the comment
from the record and instructed the jury to disregard the statement. Defense counsel made a
motion for a mistrial, which was denied. On appeal, the defendant argued that the trial court
should have granted a mistrial based on the comment because he was denied a fair trial.
¶ 87 In determining whether the trial court abused its discretion in denying the request for a
mistrial, the Lewis court noted that “[t]he Supreme Court of Illinois has repeatedly and
emphatically condemned references at trial to polygraph examinations, particularly when a
jury might consider such a reference to constitute some evidence of defendant’s guilt.”
Lewis, 269 Ill. App. 3d at 527 (citing People v. Baynes, 88 Ill. 2d 225 (1981), and People v.
Gard, 158 Ill. 2d 191 (1994)). Reasoning that the improper polygraph reference could have
substantially enhanced the credibility of the victim in the eyes of the jury, the court found
that although the trial court did its best to “ ‘unring the bell,’ ” the polygraph reference
denied defendant his right to a fair trial. Lewis, 269 Ill. App. 3d at 527.
¶ 88 Potential prejudice associated with improper remarks of a prosecutor is usually cured by
“the prompt sustaining of an objection combined with proper jury instruction.” People v.
Johnson, 208 Ill. 2d 53, 116 (2003). Therefore, prompt action on the part of the trial judge
to admonish the jury to disregard the prejudicial statement may have some impact on the
resulting prejudice and is material to the analysis. See People v. Naujokas, 25 Ill. 2d 32, 35-
36 (1962).
¶ 89 Here, the trial judge in this case certainly did what he could to reduce the impact of the
statement on the jury’s collective mind by instructing the jury to disregard the statement.
Immediately after the prosecutor’s statement, the trial court told the jury to “completely
disregard that last statement made by the prosecution.” At the conclusion of closing
argument, the trial judge addressed the jury and stated:
“Ladies and gentlemen, I’m going to give you a cautionary instruction right now. The
prosecutor made reference to an attorney. That was very inappropriate, and you should
totally disregard that. Everybody has a Constitutional right to talk to a lawyer, both by
the state Constitution and by our United States Constitution. No inference can be drawn
whatsoever from consulting with an attorney. As I said, totally disregard what the
prosecutor said. He was wrong and should have never said that.”
¶ 90 Subsequently, the court instructed the jury:
“Closing arguments are made by attorneys to discuss the facts and circumstances in
the case, and should be confined to the evidence and to the reasonable inferences to be
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drawn from the evidence.
Neither opening statements nor closing arguments are evidence, and any statement
or argument made by the attorneys which is not based on the evidence should be
disregarded.”
¶ 91 The prosecutor’s comment here regarding defendant contacting his attorney was
undoubtedly improper. However, any potential prejudice was cured by the trial court’s
prompt, repetitive admonishments to the jury and subsequent instruction.
¶ 92 Second, defendant argues that during rebuttal closing argument, the prosecutor
improperly commented on defendant’s failure to produce evidence, thereby shifting the
burden of proof to defendant. At trial, there was some testimony regarding Vega, a driver for
Bella’s pizza, who was in the alley and possibly with Rodriguez at the time of the shooting.
During rebuttal closing argument, the prosecutor stated,
“Where is Vega? I don’t know. The police were never able to find out who Vega was.
People wouldn’t cooperate. Ask yourself, ‘is there somebody that could have told the
police, or could have told you who Vega was?’ Where did he work? Vega was a driver.
He was a driver for the Defendant. So if anybody has the key to finding Vega, it’s the
defendant.”
¶ 93 Defense counsel objected and stated he had “a motion.” The court overruled the objection
stating it “is a fair comment. You opened it up.” The court then told the jury that “the burden
of proof is always on the State and lasts with State throughout each and every phase of the
trial. The burden never shifts to Mr. Cosmano.”
¶ 94 The State responds by arguing that defendant invited the comment. During closing
argument, defense counsel argued: “He and others put a guy at the scene that nobody seems
to want to talk about. A guy by the name of Vega who was with Milton Rodriguez. Was with
him before the shots were fired. Nobody assists anybody in finding Vega.” We agree with
the State that the comment regarding Vega was invited by defense counsel. During closing
argument, defense counsel reminded the jury about Vega and questioned Vega’s absence
from this case by inferring that perhaps Vega was intentionally left out because he may have
implicated someone other than defendant. In response to defense counsel’s argument, the
prosecutor pointed out in rebuttal that if Vega had exculpatory evidence, defendant should
have located him and called him as a witness. The State may properly respond to comments
made by defense counsel that clearly invite a response. People v. Hudson, 157 Ill. 2d 401,
444 (1993).
¶ 95 We also find that, as with defendant’s argument regarding the prosecutor’s comment
about the absence of the gun, the prosecutor’s comment about defendant’s failure to call
Vega was a “legitimate subject of comment by the prosecution” during rebuttal closing
argument. See Williams, 40 Ill. 2d at 529. Thus, the burden of proof was not improperly
shifted to defendant. See People v. Kliner, 185 Ill. 2d 81, 154-55 (1999).
¶ 96 B. Admission of the Gun
¶ 97 Defendant also claims that the State improperly introduced hearsay evidence and
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propensity evidence when they elicited testimony from a police officer regarding a gun
recovered at the time of defendant’s arrest, a gun which was of the same caliber used in the
shooting.
¶ 98 On direct examination of Detective Rodriguez, the prosecutor elicited that he had driven
to Naperville in response to news about defendant’s arrest. The prosecutor asked:
“Q. And when you got there did you find that something was recovered from Mr.
Cosmano at the time of his arrest?
A. Yes, I did.
Q. And what was that?
A. It was a 45 caliber semi-automatic pistol.”
After Detective Rodriguez admitted that he did not recover the weapon, defense counsel
objected stating that Detective Rodriguez did not have any personal knowledge of the
recovery of the gun and his testimony amounted to inadmissible hearsay.
¶ 99 The next morning, defendant moved for a mistrial based on Detective Rodriguez’s
testimony regarding the recovery of a .45 when defendant was arrested. Defendant argued
that because the .45 recovered was not the .45 used in the shooting, “[t]he only reason the
evidence could have been offered was to show propensity that Mr. Cosmano carries a 45.”
The State responded that defendant had waived his propensity argument where it was not the
basis of the initial objection the previous day. The court stated, “[s]o it seems that you’re–it’s
sort of a gray area–that more or less it seems like you’re objecting to the chain and then, as
an after thought, to the evidence of the weapon. All right, motion for mistrial is denied.”
¶ 100 The court then instructed the jury that, “On May 6, 2008, Mr. Cosmano was arrested and
there was a weapon recovered. That weapon has nothing to do with this case. So any
testimony concerning that weapon should be totally disregarded.”
¶ 101 The State responds that while the evidence of the gun was admissible, the manner in
which it was admitted was improper. We agree that Detective Rodriguez’s testimony
regarding the gun was inadmissible hearsay and given the State’s concession, do not need
to embark on a lengthy discussion of the finer points of hearsay.
¶ 102 The State remarks, however, that “evidence of the gun was admissible where it was
connected to defendant and was capable of the commission of the murder. The fact that it
was later discovered that it was not the weapon used did not change the fact that it was
admissible.” A weapon is generally admissible if it is connected to both the defendant and
the crime. People v. Babiarz, 271 Ill. App. 3d 153, 159 (1995). In cases where the weapon
used in the offense is not recovered, but a weapon is seized from defendant and is suitable
for commission of the charged offense, a connection between the two weapons is sufficiently
present. However, in cases where the weapon seized from defendant has been established not
to be the weapon used in the charged offense, there is some inconsistency as to whether the
admission of the weapon is reversible error. People v. Carrero, 345 Ill. App. 3d 1, 14 (2003)
(citing People v. Brown, 100 Ill. App. 3d 57, 65 (1981)); but cf. People v. Wade, 51 Ill. App.
3d 721 (1977).
¶ 103 In People v. Wade, 51 Ill. App. 3d 721 (1977), when the defendant was arrested, he was
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found with a .357 Magnum, which was not the gun used in the shooting in that case. The
prosecutor elicited extensive testimony about the gun from the arresting officer. The officer
not only testified that the gun was fully loaded and was concealed in the defendant’s
clothing, but also that, in his opinion, a shot from the weapon would pierce a car’s bumper.
Wade, 51 Ill. App. 3d at 723. The Wade court held that a gun cannot be admissible as a
weapon suitable for the commission of a murder, where the State “knows and concedes that
ballistics tests show that it was not the weapon used.” Wade, 51 Ill. App. 3d at 729.
¶ 104 The facts of this case are distinguishable from Wade however. Unlike Wade, in this case,
there was not extensive evidence admitted regarding the particular gun recovered on
defendant’s arrest. The testimony was limited to the facts surrounding the arrest and the type
of gun recovered. Furthermore, there was no ballistics test admitted into evidence in this case
showing that the gun recovered upon defendant’s arrest was not the weapon that was used
in the commission of the murder. Moreover, a cartridge case recovered from the scene of the
crime in 1981 was recovered and ballistics tests revealed that it was fired from a .45-caliber
gun. At the time of his arrest, defendant was in possession of a gun that could fire a .45-
caliber bullet.
¶ 105 Even if introduction of the gun evidence was improper, the erroneous admission of this
hearsay evidence was harmless. The erroneous admission of hearsay evidence will be
considered harmless only “where there is no reasonable probability that the jury would have
acquitted the defendant absent the hearsay testimony.” People v. Nevitt, 135 Ill. 2d 423, 447
(1990). As we have already discussed, the evidence in this case was not closely balanced.
There were eight witnesses who testified that defendant shot and killed Milton Rodriguez.
Furthermore, any prejudice would have been cured by the court’s instruction to the jury.
People v. Speight, 153 Ill. 2d 365, 373 (1992).
¶ 106 C. Perjured Testimony and Brady Violation
¶ 107 Defendant next contends that he is entitled to a new trial when the State knowingly used
perjured testimony and failed to disclose certain evidence in discovery in violation of Brady
v. Maryland, 373 U.S. 83 (1963). Defendant claims that Florence Balsitis testified falsely
when she stated that she told the prosecutor that defendant changed his appearance between
the time of the shooting and the time of the lineup. Defendant argues that the State’s failure
to inform him of Balsitis’ allegation regarding defendant’s changed appearance violated rules
of discovery and his right to due process where he could have used that information for
impeachment.
¶ 108 Balsitis testified that defendant’s hair was different than he usually wore it in the lineup
photograph from 1981. Balsitis testified that defendant wore his hair slicked-back at the time
of the shooting, but that his hair in the lineup photograph was not slicked back and was
puffy. Balsitis testified that she first told prosecutors about the difference in defendant’s
appearance in December 2009. Right after her testimony, the parties stipulated that the first
time Balsitis mentioned anything about defendant’s hair appearing different in the lineup
photo was on January 10, 2010, on the eve of trial.
¶ 109 It is well established that the State’s knowing use of perjured testimony to obtain a
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criminal conviction violates a defendant’s right to due process of law. People v. Olinger, 176
Ill. 2d 326. 345 (1997). “A conviction obtained by the knowing use of false testimony [will]
be set aside if there is a reasonable likelihood that the false testimony could have affected the
verdict.” People v. Thurman, 337 Ill. App. 3d 1029, 1032 (2003). These principles are also
applicable when the State, while not soliciting false testimony, fails to correct it when it
occurs. Thurman, 337 Ill. App. 3d at 1032.
¶ 110 The State did not allow Balsitis’ incorrect testimony to stand. The parties stipulated that
Balsitis first told the State about the change in defendant’s appearance on January 10, 2010,
thereby correcting any possible false testimony.
¶ 111 Defendant also alleges that the State violated discovery rules when it did not inform the
defense of the contents of Balsitis’ conversation with the prosecutor wherein she stated that
defendant’s appearance was different than usual in the lineup photograph.
¶ 112 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecution
violates a defendant’s constitutional right to due process of law by failing to produce
evidence favorable to the accused and material to guilt or punishment. To prove that he was
denied due process of law under Brady, defendant must show that: (1) the evidence is
favorable because it is exculpatory or impeaching; (2) the evidence was suppressed by the
State either wilfully or inadvertently; and (3) the accused was prejudiced because the
evidence was material to guilt or punishment. People v. Beaman, 229 Ill. 2d 56, 73-74
(2008).
¶ 113 To determine whether the evidence in this case, i.e., Balsitis’ allegation that defendant’s
appearance had changed for the lineup photograph, is material we need not examine the
sufficiency of the evidence; rather, defendant must show that the favorable evidence could
reasonably have put the whole case in such a different light as to undermine confidence in
the verdict. People v. Coleman, 183 Ill. 2d 366, 393 (1998).
¶ 114 Applying the Brady standards to the facts of this case, it is clear that the State did not
violate any discovery rules. The content of Balsitis’ statement regarding defendant’s
appearance was not exculpatory, it was inculpatory. Similarly, Balsitis’ allegation was not
impeaching. The only other witness who testified regarding the description of the shooter
was Mildenberger, who testified that the shooter had straight, combed-back hair.
Furthermore, defendant was not prejudiced by the delay in disclosing this information. The
fact that Balsitis waited until the eve of trial to tell anyone about defendant’s changed
appearance only affected her credibility.
¶ 115 D. Juror
¶ 116 Last, defendant complains that the trial court erred in not excusing a juror. Prior to the
start of the third day of trial, a deputy sheriff informed the court that a juror had approached
him that morning and told him “she felt frightened because she saw defendant getting out of
a car in the parking garage.” The court subsequently questioned the juror:
“THE COURT: All right. And then you expressed some kind of consternation or fear
about that, is that correct.
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JUROR: I expressed some concern
THE COURT: Okay. Good. Could you let us know what that was?
JUROR: I just was wondering if they should be parking in the same garage as we–we
were parking in.
THE COURT: Okay. And I can give you a quick answer on that: Absolutely not. All
right? I don’t know the situation about the matter at the door over there. All right. But
here’s the whole thing is would that effect you in any way in giving [defendant] a fair
trial?
JUROR: No, sir.
THE COURT: All right. It will not happen again. All right. Did you discuss any of
this with your brother or sister jurors?
JUROR: No.
THE COURT: And so it was consternation or concern about why he was parking
over in the county or jury parking lot?
JUROR: Exactly.
THE COURT: Once this is eliminated, which it will almost immediately, then is that
the end of your concern?
JUROR: Yes.
THE COURT: All right. I want you to take a look at [defendant]–Can you give him
a fair trial?
JUROR: Yes.”
¶ 117 Following this colloquy, defense counsel had an opportunity to question the juror and
began by telling the juror that “some people who come to this building believe that that’s a
public parking lot.” The court quickly ended this type of inquiry. Defense counsel then asked
the juror if she would “hold it against Mr. Cosmano because you think that he thought he
wasn’t allowed to park there.” The juror answered “no.” The court then asked the juror
whether she felt the matter had been resolved and she answered “yes.” The juror also
indicated that she felt comfortable sitting as a juror in this case and could give defendant a
fair trial. The court then instructed the juror not to discuss the matter with the other jurors.
¶ 118 Outside the presence of the juror, the court asked the parties if they had any objections
to the juror remaining on the jury. Defense counsel moved to dismiss the juror for cause
because the trial court made defendant “look like he was violating some county regulation
which he was not” and “indicated to that juror he shouldn’t have been parked there.” The
court responded, “I have judicial notice and I can do that.” The State responded that the “lot
is clearly marked jurors and employees only” and that defendant “is not supposed to park
there.” The court thereafter denied defendant’s request to remove the juror and denied
defendant’s request for a mistrial.
¶ 119 The crux of defendant’s argument is that the juror should have been dismissed because
she was prejudiced against defendant as a result of the trial court’s announcement that
defendant was “absolutely” wrong for parking in the juror parking lot. The question of
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whether jurors have been influenced and prejudiced “to such an extent that they would not,
or could not, be fair and impartial” involves a determination that must rest in sound judicial
discretion. People v. Whitehead, 169 Ill. 2d 355, 402 (1996), overruled in part on other
grounds, People v. Coleman, 183 Ill. 2d 366 (1998). After the judge has made an appropriate
inquiry, the trial judge has wide discretion in deciding how to handle and respond to juror
bias because the judge can appraise the jurors face to face, something a court of review
cannot do. People v. Runge, 234 Ill. 2d 68, 105-06 (2009).
¶ 120 In the instant case, the court conducted a proper inquiry into the juror’s concerns. The
juror did not allege any improper contact on the part of defendant. The juror merely
expressed concern that defendant was parked in the juror parking lot. After some
questioning, the juror indicated that her concern would end once defendant was instructed
he was not to park in the juror parking lot. In addition, the juror stated three separate times
that she was capable of giving defendant a fair trial. Given the facts and the circumstances,
we cannot say that the trial court abused its discretion in denying defense counsel’s request
to dismiss the juror. The court’s determination that the juror could be fair and impartial was
not an abuse of discretion.
¶ 121 CONCLUSION
¶ 122 Based on the foregoing, the judgment of the trial court is affirmed.
¶ 123 Affirmed.
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