People v. Cosmano

2011 IL App (1st) 101196

357 Ill.Dec. 724

964 N.E.2d 87

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Michael COSMANO, Defendant–Appellant.

No. 1–10–1196.

Appellate Court of Illinois, First District, First Division.

Dec. 27, 2011.

Edward M. Genson, Genson & Gillespie, and Marc W. Martin, Marc Martin, Ltd., Chicago, for appellant.

Anita M. Alvarez, State's Attorney of Cook County (Alan Spellberg and Janet C. Mahoney, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice KARNEZIS delivered the judgment of the court, with opinion.

[357 Ill.Dec. 728] ¶ 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 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 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 Cold 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 .25 raise. Defendant refused to give the $0.25 raise and he and Willie went back inside Bella's Pizza. Later, 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 ...