{ "id": 3539295, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH BERINGER, Defendant-Appellant", "name_abbreviation": "People v. Beringer", "decision_date": "1987-01-05", "docket_number": "No. 83-1327", "first_page": "558", "last_page": "564", "citations": [ { "type": "official", "cite": "151 Ill. App. 3d 558" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "391 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "375" } ], "opinion_index": 0 }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "365 N.E.2d 1118", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1121" } ], "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 778", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5640131 ], "pin_cites": [ { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0778-01" ] }, { "cite": "494 N.E.2d 677", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "686-87" } ], "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 813", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3500909 ], "year": 1983, "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0813-01" ] }, { "cite": "451 N.E.2d 1298", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1305" }, { "page": "1302-03" } ], "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520847 ], "weight": 3, "pin_cites": [ { "page": "394" }, { "page": "390" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0384-01" ] }, { "cite": "481 N.E.2d 1272", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1278" } ], "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599264 ], "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0534-01" ] }, { "cite": "253 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "43 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844221 ], "weight": 2, "pin_cites": [ { "page": "381" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0375-01" ] }, { "cite": "497 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3605530 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0360-01" ] } ], "analysis": { "cardinality": 713, "char_count": 12891, "ocr_confidence": 0.781, "pagerank": { "raw": 1.6455231551997156e-07, "percentile": 0.6917994060657591 }, "sha256": "53cf64b007388bfdd62a311eaf0d412cca395922f33d0e57fa9d9afa355b28f7", "simhash": "1:9b2d20bdfbc766d1", "word_count": 2162 }, "last_updated": "2023-07-14T16:55:10.892091+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH BERINGER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nAfter a jury trial, the defendant, Joseph Beringer, was convicted of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 \u2014 1(a)) and conspiracy (Ill. Rev. Stat. 1983, ch. 38, par. 8 \u2014 2(a)) in the shooting death of Joanne Barkauskas. This case is a companion case to People v. Barkauskas (1986), 147 Ill. App. 3d 360, 497 N.E.2d 1183, where the victim\u2019s husband was convicted of murder, armed violence, solicitation, and conspiracy. The defendant in that case was sentenced to natural life in prison without parole.\nThe facts of the Beringer case are essentially the same as Barkauskas. Edward Barkauskas, the victim\u2019s husband, approached James Galason with a proposition to kill his wife in exchange for part of the insurance proceeds. Barkauskas asked Galason to shoot his wife below the neck so there could be an open casket funeral. Galason, the defendant, and his brother, who was a codefendant, planned the murder, which was committed on July 16,1981.\nThe State called for a death sentence hearing. At this hearing, the judge exercised mercy and sentenced the defendant to natural life in prison without parole for his role as the shooter in a coldblooded contract murder.\nOn appeal, the defendant raises a multitude of errors ranging from erroneous rulings on the admissibility of evidence to gross misconduct by the prosecutors. For the following reasons, we reverse the verdict of the trial court and remand the case for a new trial.\nI\nDefendant argues that the State\u2019s cross-examination for Harvey Webb, the only eyewitness to the murder, denied him a fair trial. Webb witnessed the murder while he was walking to his job as a car wash attendant. He knew the victim by sight, having seen her walk down the street on several occasions. Otherwise, Webb had no connection with the events of the crime.\nWebb testified that he was able to identify the car that was used at the scene of the crime. He further testified that later at the police station, he picked James Galason out of a lineup as the shooter. Webb was able to identify Galason by his characteristically long blonde hair that was blowing in the wind from the fatal shotgun blast.\nThe two State\u2019s Attorneys who cross-examined Webb asked unsubstantiated questions for the purpose of attacking him personally. Generally, the questions insinuated that Webb solicited money for his testimony, that he used drugs before he spoke to the State\u2019s Attorney, and that he conspired with defense counsel to change his testimony because he blamed the police for the fact that he lost his job at the car wash. In particular, Webb was cross-examined as follows:\n\u201cQ. Didn\u2019t you call me and tell me you were locked up on a disorderly?\nA. No, sir.\nQ. And you wanted me to get you out of jail?\nA. No, sir.\nQ. Didn\u2019t you tell me that?\nA. No, sir.\nQ. And that you would come in this court if I paid you money, didn\u2019t you tell me that?\nA. No, sir.\nQ. And you would say anything\u2014\nMR. STAMOS: If I may make an objection, inserting himself in this case as a witness. It is improper for him to be asking these forms of questions, get on the stand and testify.\nTHE COURT: You will have to perfect your impeachment.\nMR. WADAS: I understand that.\nQ. Didn\u2019t you tell me, Mr. Webb, if I scratch your back you will scratch my back, didn\u2019t you tell me that?\nA. No, sir.\n* * *\nQ. How much did you have to drink before you came to our office that morning?\nMS. PLACEK: Objection.\nTHE COURT: Overruled. I will sustain the form, as to the form.\nMR. WADAS:\nQ. Had you been drinking that morning?\nA. A glass of orange juice.\nQ. Had you been drinking any alcoholic beverages?\nA. I had not been out of the house.\nQ. How much of any reefer did you smoke that morning?\nMS. PLACEK: Objection.\nMR. WADAS:\nQ. Did you take any drugs or smoke any reefer that morning?\nA. I don\u2019t mess with it.\nQ. You don\u2019t mess with reefer?\nA. No.\nQ. Didn\u2019t you tell us, Mr. Webb, you didn\u2019t remember anything about the case and you didn\u2019t want to remember anything about the case, didn\u2019t you say that?\nA. No, sir.\nQ. Didn\u2019t you ask us how much money we were going to pay you to come into court?\nA. No, sir.\nQ. You didn\u2019t ask us for money to testify?\nA. I didn't ask for anything.\nQ. Told us what you wanted to say, if we paid you money?\nA. I ask [sic] you for a cigarette.\n* * *\nQ. Didn\u2019t Ms. Placek tell you now remember Harvey put it on the police and the State\u2019s Attorney you lost your job because of the police\u2014\nMS. PLACEK: I am going to object to that and it is a personal attack against me.\nTHE COURT: Be seated. The jury will disregard that.\nMR. WADAS:\nQ. Did Marijane Placek say that to you or not?\nA. No, sir.\nQ. She didn\u2019t tell you remember to put it on the police that is the reason why you lost your job?\nA. No, sir.\nQ. You had no conversation with her?\nA. No, sir.\u201d\nThis unsubstantiated cross-examination destroyed Harvey Webb\u2019s credibility before the jury. None of these questions had any factual foundation. On at least one occasion the judge reminded the prosecutor that he would have to perfect his impeachment, he responded \u201cI understand that,\u201d but never did. This conduct violates People v. Nuccio (1969), 43 Ill. 2d 375, 381, 253 N.E.2d 353, 356, where the Illinois Supreme Court stated:\n\u201cThe impropriety of the cross-examination does not rest simply upon unsupported insinuations of misconduct, but also upon the State\u2019s failure to present appropriate rebuttal testimony in response to the defense witnesses\u2019 specific denials of misconduct ***.\u201d 43 Ill. 2d 375, 381, 253 N.E.2d 353.\nThe State responds to this Nuccio violation by arguing that \u201c[i]n order for the failure to complete impeachment to rise to the level of reversible error, the unfounded insinuation that the witness is unbelievable or is lying must be substantial, repeated, and definitely prejudicial.\u201d (People v. Redman (1985), 135 Ill. App. 3d 534, 542, 481 N.E.2d 1272, 1278.) The State\u2019s reliance on Redman is misplaced because this case fits squarely within its rule. First, the \u201cunfounded insinuation\u201d was \u201csubstantial\u201d because the prosecutors implied that Webb twice suborned perjury, used drugs, and conspired to change his testimony. Second, the objectionable questions were \u201crepeated\u201d occurring at no less than four separate points during cross-examination. Third, the questions prejudiced defendant because after the eyewitness Webb was impeached, the uncontroverted evidence indicated that the defendant was the shooter, a fact the judge specifically relied upon in his sentence of natural life without parole.\nThe State\u2019s cross-examination also impugned the integrity of defense counsel, further prejudicing defendant. Such conduct has been consistently condemned. (See People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298, 1305 (cases cited therein).) Moreover, the prejudice that accrued to defendant could not be cured by the court\u2019s instructions because the prosecutor repeated the prejudicial question after objection had been sustained and the jury instructed to disregard it. Thus, the unperfected cross-examination constituted reversible error.\nII\nDefendant assigns error to the following closing argument remarks by the prosecutor:\n\u201cWhat about Joanne Barkauskas\u2019 rights. I want to mention her rights and talk to you about that because she can\u2019t be here today to speak up for herself. What about her right to grow old, to have a family. Her rights are never considered in this case, not one word has been mentioned about Joanne Barkauskas\u2019 rights.\n* * *\nI\u2019m not asking you to convict on *** [sympathy], my client who didn\u2019t have a lawyer before she was destroyed; who didn\u2019t have a jury trial before she was taken out.\n* * *\nAnd what do you think \u2014 don\u2019t you think the lawyers were helping each other out a little, too? Mr. Stamos and Miss Placek, you noticed how they cross-examined all the witnesses in this case.\nDid you notice how Mr. Stamos cross-examined Joey, not Mr. Beringer, Joey.\nYou noticed how Miss Placek cross-examined Kenny, not her client, Kenny.\nVery kind. Something I thought Miss Placek was incapable, kindness; but she displayed it to Kenny Beringer.\nI thought she was incapable of courtesy to other people; but she displayed courtesy to Kenny Beringer because they are trying to help each other out. They start with the common ground of attacking Jimmy Galason.\u201d\nDefendant argues that the above comments constituted an improper appeal for sympathy for the deceased and her family, \u201can insidious cry for vengeance,\u201d and a further attack on defense counsel. The State counterargues that these statements were taken out of context. In addition, the State argues that these statements did not arouse the jury\u2019s passions and sympathies because it explicitly reminded the jury not to decide the case based on sympathy.\nThe State\u2019s arguments are unpersuasive. A careful review of the record indicates that these statements were not taken out of context. Indeed, reading the closing argument as a whole reveals other similar examples of statements designed to arouse the jury\u2019s passions. Moreover the second paragraph above amply demonstrates how the State \u201creminded\u201d the jury not to convict based on sympathy. First, it implored the jury not to be swayed by sympathy for the victim, but in the same breath it played on the passions and emotions of the jury. An isolated reminder that sympathy should not play a role in the jury\u2019s decision making is wholly ineffective when the State has persistently aroused the jury\u2019s passions.\nThe remarks in the first excerpted paragraph, about Joanne Barkauskas\u2019 rights and her family\u2019s rights, are strikingly similar to those found to be prejudicial in People v. Littlejohn (1986), 144 Ill. App. 3d 813, 827, 494 N.E.2d 677, 686-87, and People v. Starks (1983), 116 Ill. App. 3d 384, 390, 451 N.E.2d 1298, 1302-03. For example, Starks found the following statements prejudicial: \u201c \u2018[defendant] took away his [the deceased\u2019s] right to get married, his right to have a happy life, his right to finish school and maybe get a better job, his right to children if he wanted, his right to buy a house.\u2019 \u201d (116 Ill. App. 3d 384, 390, 451 N.E.2d 1298.) Both Starks and Little-john held that actual prejudice accrued to the defendant as a result of such argument. Similarly, we find in this case that the commentary about Joanne Barkauskas\u2019 rights and her family\u2019s rights was designed to arouse the sympathy and passions of the jurors and thus was improper.\nAs demonstrated by the third set of excerpted paragraphs above, the State continued its attack on defense counsel that it began during the cross-examination of Harvey Webb. Accusations of deceptions between the defense counsels and personal attacks on defendant\u2019s attorney served no purpose except to prejudice the jury. (People v. Suggs (1977), 50 Ill. App. 3d 778, 783, 365 N.E.2d 1118, 1121.) In light of the earlier attacks, these remarks during closing argument seem designed to finish the disparagement of defense counsel\u2019s integrity.\nTo summarize, we find that the State\u2019s conduct in this case was so egregious as to deny defendant a fair trial. The State used unsupported cross-examination to destroy a key defense witness and impugn the integrity of defense counsel. Further, during closing argument it aroused the jury\u2019s passions with vengeful commentary and completed its personal attacks on defense counsel.\nA heinous crime was committed in this case. Certainly the responsible parties should be punished, but only after a fair trial. The State\u2019s brazen misconduct insured that the defendant would not receive a fair trial. Accordingly, the judgment of the circuit court is reversed and the cause is remanded for a new trial. We expect that the errors discussed herein will not be repeated on retrial.\nOur disposition makes it unnecessary for us to consider the remaining issues raised by defendant on appeal. We note, however, that we believe the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt. This does not mean we are making a finding as to defendant\u2019s guilt or innocence which would be binding on retrial, but rather our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.\nReversed and remanded.\nCAMPBELL and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Peter D. Fischer, and Craig M. Antas, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH BERINGER, Defendant-Appellant.\nFirst District (1st Division)\nNo. 83-1327\nOpinion filed January 5, 1987.\nJames J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Peter D. Fischer, and Craig M. Antas, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0558-01", "first_page_order": 580, "last_page_order": 586 }