People v. CisewskiPeople v. Cisewski
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The defendant, Mary Cisewski, was convicted by a jury in the circuit court of Cook County of the voluntary manslaughter of her husband, Donald Cisewski (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(b)). She was sentenced to five years’ imprisonment. The appellate court, with one judge dissenting, affirmed the conviction ( 144 Ill. App. 3d 597), and we granted the defendant’s petition for leave to appeal. (103 Ill. 2d R. 315.) .
The issues presented in this appeal are: (1) whether the State’s failure to comply with Supreme Court Rule 412(aXii) (107 Ill. 2d R. 412(aXii)) entitles defendant to a new trial; and (2) whether the prosecutor’s statements during rebuttal closing argument deprived the defendant of a fair trial under the sixth and
record in this case reveals that the defendant had suffered for a number of years from paranoid fears. She falsely believed that she was being harassed by police, tenants, lawyers, and others who she believed were part of a conspiracy against her. In
In late 1980, the defendant met Donald Cisewski and the two were married in November of 1981. The record reveals that Donald was aware of the defendant’s “harassment” beliefs at the time of their marriage. Sometime shortly after they were married, the defendant began to suspect that Donald was part of the conspiracy against her. She believed that there was a plot to have
On February 9, 1982, the defendant came home from work and discovered that her gun was missing from the location where she kept it. Donald claimed that he did not know where the gun was, but the next evening he inexplicably produced the box of bullets to the gun. The defendant became frightened, believing that if he had taken the bullets he also must have taken the gun. She immediately searched his car and found the loaded gun in the glove compartment. The defendant brought the gun into the house and hid it in a drawer in the dining room. The defendant testified that Donald never admitted that he took the gun and she did not tell him that she had found it in his car.
Over the next few days, the defendant’s fear that Donald planned to kill her intensified. She talked to her children and made arrangements to move in with one of them within the next few weeks. The couple’s arguing continued. According to the defendant, Donald told her that no matter what he did to her the police would arrange to have her death reported as a suicide.
On Friday, February 12, the defendant came home from work and made several telephone calls to her children. She drank a few beers in an effort to calm her heightened feelings of desperation. When Donald came home from work that evening, he and the defendant be- ■ gan to argue in the kitchen. While they were arguing, Donald got up and went into the living room and sat down. The defendant then took the loaded gun from the drawer in the dining room and went into the living room with the gun in her hand. She showed Donald the gun and asked him if he thought it was funny. She said to him, “Your problem is you think everything is funny.” The defendant then shot her husband in the head and abdomen.
The police officer who responded to the call testified that when he arrived at the Cisewski home, the defendant told him that, following an argument, she shot her husband twice. Another investigating officer, who later interviewed the defendant at the police station, testified that the defendant told him that when she pointed the gun at Donald, he said something to the effect of “No, Mary, no.” The defendant told the officer that she shot Donald once, but could not recall having fired the second shot. However, she subsequently told an assistant State’s Attorney, in the officer’s presence, that she shot her husband twice.
A ballistics expert testified on behalf of the State that the “trigger pull” on the defendant’s gun was “heavy.” This testimony was put forth by the State to obviate any suggestion advanced by the defendant that the gun went off accidentally.
Dr. Albert Stipes, a psychiatrist called by the defense, testified that upon examining the defendant, he found that she suffered from paranoia and had delusions that there was a conspiracy against her. Dr. Stipes found that the defendant was suspicious of everyone, had felt threatened particularly by her husband, and believed that he was going to kill her. According to Dr. Stipes the defendant did not, however, believe that her husband was attacking her at the time she shot him. Dr. Stipes found the defendant sane and fit to stand trial.
On the next day of trial, during the State’s presentation of rebuttal evidence, the trial court permitted the State to introduce the testimony of Patricia Stanford. The State indicated that the witness was being called to impeach the defendant’s earlier testimony denying that she had called Teledyne after the incident to inquire about her husband’s insurance proceeds. Defendant’s objection to Patricia Stanford’s testimony was again overruled. Ms. Stanford testified that, following Donald’s death, a person identifying herself as Mary Cisewski
It was the defendant’s defense at trial that she shot her husband in self-defense and out of paranoia. She also maintained, as stated previously, that she did not intend to shoot her husband, and that she could not recall having fired the gun. Instructions on murder, voluntary manslaughter and involuntary manslaughter were tendered to the jury, and, as stated earlier, the jury returned a guilty verdict on the voluntary manslaughter charge.
The first issue presented in this appeal is whether the State’s failure to disclose prior to trial the substance of the defendant’s alleged telephone conversation with Patricia Stanford regarding Donald’s life insurance proceeds constituted reversible error. A divided appellate court found that any error caused by the introduction of undisclosed conversation was harmless error because at closing argument the defendant maintained that she was guilty of voluntary manslaughter, not murder, which was precisely the verdict the jury returned. The dissent expressed the opinion that the defendant did not receive a fair trial because the jury was also instructed on the lesser offense of involuntary manslaughter, and Patricia Stanford’s testimony about the defendant’s call to Teledyne suggested to the jury that the defendant acted deliberately and not recklessly.
Supreme Court Rule 412(a)(ii) (107 Ill. 2d R. 412(a)(ii)) provides in pertinent part:
“(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
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(ii) any written or recorded statements and the substance of any oral statements made by the accused *** and a list of witnesses to the making and acknowledgment of such statements.”
Supreme Court Rule 412(a)(ii) (107 Ill. 2d R. 412(a)(ii)) was promulgated to protect a defendant against surprise, unfairness, and inadequate preparation (People v. Patterson (1981), 102 Ill. App. 3d 844, 847), as well as to afford the defense an opportunity to investigate the circumstances surrounding the statement. (People v. Winfield (1983), 113 Ill. App. 3d 818, 836.) The rule is intended to encompass all statements made by a defendant which might have a bearing on the defendant’s guilt or innocence. People v. Weaver (1982), 92 Ill. 2d 545, 558.
We find in this appeal that the State’s failure to disclose defendant’s alleged statements constituted a violation of Supreme Court Rule 412(a)(ii). (107 Ill. 2d R. 412(a)(ii).) However, the failure to comply with discovery requirements does not in all instances necessitate a new trial. (People v. Greer (1980), 79 Ill. 2d 103, 120.) A new trial should only be granted if the defendant is prejudiced by the discovery violation and the trial court failed to eliminate the prejudice. (People v. Weaver (1982), 92 Ill. 2d 545, 560.) Among the factors to be considered in determining whether a new trial is warranted are the closeness of the evidence, the strength of the undisclosed evidence, and the likelihood that prior notice could have helped the defense discredit the evidence. People v. Weaver (1982), 92 Ill. 2d 545, 559.
We also find, as did the appellate court, that defense counsel argued almost exclusively during closing argument that defendant was guilty of voluntary manslaughter rather than murder, which, in fact, was precisely the verdict the jury returned. After reciting the elements of voluntary manslaughter in light of the evidence presented at trial, defense counsel stated, “[I]f that’s not Mary Cisewski in a nutshell, I don’t know what is.” Although defense counsel paid lip service to the theory of involuntary manslaughter, he could cite little evidence which would substantiate such a finding. Our review of the record in this case reveals that, even without Patricia Stanford’s testimony, there was more than enough evidence from which the jury could have disbelieved
In urging this court to reverse the appellate court’s finding of harmless error, the defendant relies on People v. Weaver (1982), 92 Ill. 2d 545. In Weaver, a witness called by the State testified to a statement made by the defendant. The prosecutor had failed to inform defense counsel of this statement prior to trial. As soon as the witness testified concerning this statement, defense counsel moved to strike the testimony or, in the alternative, that a mistrial be granted. The trial court denied these motions, but offered to give defense counsel an opportunity to put Miss Weaver back on the stand and cross-examine her, and told defense counsel he would be given time to talk to her first. Defense counsel declined the opportunity, arguing that in light of the fact that Miss Weaver had already testified, he could not possibly remedy the damage in any way.
Weaver is clearly distinguishable from the instant case. Here, Patricia Stanford did not testify as to the statement before defense counsel had an opportunity to object. As previously explained, a few days before Patricia Stanford testified, the prosecutor advised defense counsel of the substance of the testimony she was . expected to present. While in Weaver there was no time to request a continuance before the testimony was heard, such was obviously not the case here. Clearly, the defendant in this case had sufficient time to request a
The second issue presented in this appeal is whether certain statements made by the prosecutor during closrebuttal argument deprived the defendant of a fair trial. In reviewing the defendant’s allegations of error here, we first note that a prosecutor is allowed a great deal of latitude in making the closing argument (People v. Stock (1974), 56 Ill. 2d 461, 467; People v. Neumann (1986), 148 Ill. App. 3d 362, 373-74), and the trial court’s determination of the propriety of the argument will generally be followed absent a clear abuse of discretion (People v. Smothers (1973), 55 Ill. 2d 172, 176). To constitute reversible error, the complained-of remarks must have resulted in substantial prejudice to the accused, such that absent those remarks the verdict would have been different. (People v. Morgan (1986), 112 Ill. 2d 111, 132.) In reviewing allegations of prosecutorial misconduct, the
The defendant’s first allegation of error in this case involved the prosecutor’s statement to the jury, “Let’s take a real close look at the defense of paranoia *** and we’ll show you it’s all a fabrication.” Our review of the record indicates that this comment was not objected to at trial or raised in the motion for a new trial, which, of course, constituted a waiver of the right to raise this issue on appeal. (People v. Adams (1985), 109 Ill. 2d 102, 116; People v. Jackson (1981), 84 Ill. 2d 350, 358.) However, even assuming, arguendo, the issue had been preserved for appeal, this comment does not constitute reversible error. We have examined the context in which the above statement was made and find that it does not amount to an accusation that defense counsel fabricated a defense and encouraged the defendant to testify accordingly. (See People v. Freedman (1954), 4 Ill. 2d 414, 421.) The prosecutor was merely suggesting that, in light of Dr. Stipes’ failure to find defendant insane, defendant’s only alternative was to advance a defense of paranoia. The prosecutor was not suggesting that defense counsel concocted a baseless defense and encouraged defendant to lie about her paranoia, or that defense counsel somehow misrepresented the facts. Clearly, this comment did not rise to the level of impeaching defense counsel’s integrity as in People v. Emerson (1983), 97 Ill. 2d 487, 497, where the prosecution in that case accused the defense attorney of laying down a smoke screen “composed of lies and misrepresentations, and innuendoes.” We, therefore, conclude that, when read in its proper context, no prejudicial error occurred here as a result of the prosecutor’s remark.
The seallegation of error here involves the pros-argument that the defense in this case was . on the defendant’s belief that if she convinced that she was paranoid, “they [the jury] can find iefendant] guilty of voluntary manslaughter and fendant] can walk out of that door today. I [the t] can be home before the jurors are home, if me [the defendant] guilty. It is a fact ladies and in.” Defense counsel’s objection to the state-is immediately sustained by the trial court, e trial court instructed the jury to consider only mce in the case and warned the jury that closing ts are not evidence and that arguments not t the evidence must be disregarded. The trial .0 admonished the jury “not to concern yourself isible punishment or sentence for the offense luring your deliberation.”
Defendant asserts that the prosecution prejudiced t by misinforming the jury that a voluntary filter conviction would result in no punishment ■ the defendant. She argues that the jury’s verreflect the view that the defendant would go hey returned a verdict of guilty of voluntary fhter, and therefore the statement was highly il.
This courtourt has held that it is error for a prosecutor to the jury the punitive effect of the verdict when will have nothing to do with fixing punishment. ;. People v. Galloway (1963), 28 Ill. 2d 355, 362.) How-h information may form the basis for a reversal t is a material factor in the conviction of a it. See People v. Cimino (1970); 45 Ill. 2d 556.
e case, the prosecutor’s comment was l unrepeated. The defendant’s, immediate objects isolated comment was sustained by the trial i additional curative instructions were tendered
The defendant’s third allegation of error in this case involves the prosecutor’s statement to the jury, “Now is the time, Ladies and Gentlemen, to remove, the cloak of innocence from this defendant and join Donald in saying ‘No Mary, No Mary.’ ” We find no error in the prosecutor’s comment. It is fundamental that a prosecutor may argue that the defendant is guilty when she states, or it is apparent, that such argument is based solely on the evidence. (See People v. Tiller (1982), 94 Ill. 2d 303, 319.) Immediately prior to making this statement, the prosecutor said in closing argument:
“Ladies and Gentlemen, consider all of the evidence when you go back to deliberate. Consider thé photographs. Remember what the defendant told the police immediately after the killing. Remember what Doctor Stipes said he believed the defendant believed, at that time.”
Clearly, when the prosecutor’s comment is read in its entirety, it is apparent that her argument regarding defendant’s guilt was based on the evidence presented in the case and not on her own personal beliefs.
For the reasons stated herein, the judgments of the appellate and circuit courts are affirmed.
Judgments affirmed.
JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.