{ "id": 3315883, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD SPATARO, Defendant-Appellant", "name_abbreviation": "People v. Spataro", "decision_date": "1978-12-29", "docket_number": "No. 77-282", "first_page": "69", "last_page": "75", "citations": [ { "type": "official", "cite": "67 Ill. App. 3d 69" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "352 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 537", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965333 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0537-01" ] }, { "cite": "312 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2696522 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0603-01" ] }, { "cite": "240 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. 2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855750 ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0522-01" ] }, { "cite": "382 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "73 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441461 ], "weight": 2, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0007-01" ] }, { "cite": "299 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2855286 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0960-01" ] }, { "cite": "324 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2702002 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0992-01" ] }, { "cite": "278 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "50 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912984 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/50/0302-01" ] }, { "cite": "224 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377285 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0483-01" ] }, { "cite": "378 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "72 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444213 ], "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0124-01" ] }, { "cite": "25 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352005 ], "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0309-01" ] }, { "cite": "51 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392065 ], "year": 1962, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0418-01" ] }, { "cite": "65 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435255 ], "year": 1972, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0132-01" ] }, { "cite": "368 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3391012 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0859-01" ] }, { "cite": "327 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409438 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0139-01" ] }, { "cite": "363 N.E.2d 371", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463404 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0470-01" ] }, { "cite": "368 N.E.2d 870", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "68 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809407 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0158-01" ] }, { "cite": "350 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379817 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0266-01" ] }, { "cite": "302 N.E.2d 609", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "55 Ill. 2d 142", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937459 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/55/0142-01" ] } ], "analysis": { "cardinality": 753, "char_count": 15389, "ocr_confidence": 0.873, "pagerank": { "raw": 3.593390601144272e-07, "percentile": 0.8873476793434675 }, "sha256": "e4b36679001a680910c9e39419aa9c50c013579ee38063d082d871459ca7d67e", "simhash": "1:2f1cbb72fe75bd97", "word_count": 2571 }, "last_updated": "2023-07-14T17:17:27.014484+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. DONALD SPATARO, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STENGEL\ndelivered the opinion of the court:\nA jury in the Circuit Court of Will County found defendant guilty of murder. He was sentenced to 14 to 20 years in prison.\nShortly after midnight on July 8, 1976, defendant summoned police to the home of his girlfriend, Margaret Ward. Police found Miss Ward lying dead on the floor, shot once in the head. Defendant, who appeared to be distraught, initially told the officers, \u201cShe pulled the trigger, she pulled the trigger and I love her.\u201d Later, defendant was taken to the police station where, after being advised of his Miranda rights, he was twice interviewed by investigating officers. Both interviews were tape recorded with defendant\u2019s consent, and the tapes were played at trial as part of the State\u2019s case-in-chief. In both interviews defendant stated that on the afternoon of July 7, 1976, after conversing with the victim at her home, he went fishing, taking his gun with him. He returned to the victim\u2019s home for supper late that evening and kept the gun in his belt as he ate. After supper, as defendant prepared to go to work, the victim became upset because she did not want him to leave. Defendant\u2019s account of what next transpired and how the fatal shot was fired differed in the two interviews. In his first statement defendant claimed the gun fired when the victim knocked it out of his hand. However, in his second statement defendant made no mention of the victim knocking the gun from his hand, explaining instead that the gun accidentally discharged as he was removing it from his belt. Defendant\u2019s testimony at trial substantially conformed to the statement he gave to the police in the second interview.\nTwo of the victim\u2019s neighbors, Mr. and Mrs. Van, testified that at about 12 o\u2019clock on the night in question they heard a loud argument between a man and a woman in which the woman screamed, \u201cLeave me alone, in the name of God, Jesus, Mary and Joseph, he is going to kill me won\u2019t someone help me.\u201d The witnesses did not know the defendant or victim and could not identify the voices, but defendant acknowledged that the victim habitually used the particular religious phrase mentioned by the witnesses.\nAlso testifying for the State were a criminalist from the Illinois Bureau of Investigation who performed tests on the gun and a pathologist who performed an autopsy on the victim. The experts agreed the fatal shot was fired from within one foot of the victim and the pathologist stated that in his opinion the shot was a contact shot or fired from within one inch of the victim. An expert witness for the defense did not think the shot was a contact shot, but he \u201ccould certainly say it is a close shot.\u201d\nOn appeal defendant\u2019s initial contention is that the statements given by him to police both at the scene and during the taped station-house interviews were obtained in violation of his constitutional rights and should not have been admitted into evidence. Defendant claims three separate violations of his rights under Miranda. First, he argues the statements he made to officers at the scene were inadmissible because he had not been advised of his Miranda rights prior to making those statements. Second, he claims that, although he was advised of Ms rights prior to each of the stationhouse interviews, other statements by the investigating officers negated the effect of those warnings so as to render his statements involuntary. Third, defendant suggests that the warnings given at the station were defective in that they led him to believe he had a right to consult with a lawyer only if he agreed to make a statement and only after going to court. We reject each of defendant\u2019s arguments and conclude that defendant\u2019s statements were properly admitted into evidence.\nAlthough defendant was not advised of his Miranda rights prior to making a statement at the scene, both the Illinois and United States Supreme Courts have held that statements made in response to routine investigatory questions, and asked during a brief initial period of noncoercive detention, are admissible. (People v. Hubbard (1973), 55 Ill. 2d 142, 302 N.E.2d 609; People v. Schott (2d Dist. 1976), 39 Ill. App. 3d 266, 350 N.E.2d 49.) We believe the questions asked defendant, who had himself summoned police to the scene, were of such a routine nature, and there is nothing in the record to suggest that defendant\u2019s responses were not voluntarily made. In fact, the evidence indicates that defendant\u2019s statement, \u201cShe pulled the trigger * * was volunteered by him before he was asked any questions by the officers.\nPrior to giving any statements at the police station defendant was advised of his Miranda rights and he signed a statement saying that he understood and waived those rights. Nevertheless, he claims on appeal that his waiver was not knowingly given and his statements not voluntarily made because the interviewing officers made other statements to him which led him to believe that he was not a suspect and that his statements would not be used against him. We find defendant\u2019s claim to be without merit.\nWhether a defendant\u2019s statement was voluntarily made is to be determined by the trial court based on the totality of the circumstances surrounding the making of the statement. (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870; People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371.) Counsel for defendant filed numerous pretrial motions which included his motion to suppress the confession. We conclude that the factual determination necessary to a denial of the motion to suppress was not contrary to the manifest weight of the evidence and that the court\u2019s ruling was not erroneous as a matter of law. The officer did initially tell defendant he was not being charged with an offense and that his statement was needed to complete the accident investigation. However, the evidence does not indicate these statements were made to deceive the defendant or to negate the influence of the Miranda warnings. On the contrary, the evidence indicates the officer\u2019s statements were true. Prior to taking defendant\u2019s statement the officers had no reason to believe the death was other than an accident as defendant claimed. Defendant was not searched, handcuffed, booked, fingerprinted or photographed prior to the stationhouse interviews. Though a police report prepared several hours later indicated defendant was arrested at the scene, the investigating officers testified he was not arrested at that time and that he was taken to the police station only because he was interfering with the investigation by his nervous pacing and incessant conversation. The officers carefully warned defendant that his statements could and would be used against him in court, and we have no basis for finding that defendant did not understand that clear warning.\nSimilarly, we have no reason to find that defendant did not understand his right to consult with a lawyer before answering any question. He was properly advised of that right; he said he understood that right; and he signed a statement waiving that right. On the basis of such evidence we cannot say the trial court erred in concluding that defendant voluntarily waived his rights and voluntarily made statements to the police. Defendant\u2019s statements were properly admitted into evidence.\nIn his second major contention on appeal, defendant argues that, even if his taped statements made to the police were properly admitted into evidence, certain other statements made by police officers on the tapes should have been deleted before the tapes were presented to the jury. He claims he was denied a fair trial because of the admission of these prejudicial statements. However, defendant did not object to the admission of these statements at trial, nor did he raise the issue in his post-trial motion. This court has held that objections to evidence are waived by failure to interpose proper objections in apt time (People v. Johnson (3d Dist. 1975), 28 Ill. App. 3d 139, 327 N.E.2d 535), and by failure to bring alleged errors to the trial court\u2019s attention in a post-trial motion (People v. Mazzone (3d Dist. 1977), 52 Ill. App. 3d 859, 368 N.E.2d 207). We note that in a pretrial motion which was granted by the trial court, the defendant requested that certain statements with racial overtones be deleted, but failed to include in the motion a request to also eliminate the material of which the defendant now complains. In the instant case we adhere to our earlier holdings and conclude that defendant waived any objection to admission of the taped conversations.\nFor the same reasons we also conclude that defendant waived his objection to the way the jury was instructed on the question of motive. At the State\u2019s behest the trial court instructed the jury that the State was not required to prove motive. Defendant\u2019s counsel offered no objection to this instruction and the issue was not raised in defendant\u2019s post-trial motion. Objections to instructions not raised in the trial court will not be considered for the first time on review. Johnson; Mazzone.\nDefendant\u2019s next contention on review is that the trial court erred in not instructing the jury on the theory of involuntary manslaughter. Defendant did not tender an involuntary manslaughter instruction and in fact argued against giving such an instruction. Nevertheless, he argues that the court had a duty to give the instruction sua sponte. We disagree. The supreme court has recently held:\n\u201cUnder Illinois law, the burden of preparing jury instruction is primarily on the parties, not on the trial court. (Ill. Rev. Stat. 1973, ch. 110, par. 67; 58 Ill. 2d R. 451.) Generally, the trial court is under no obligation either to give jury instructions not requested by counsel or to rewrite instructions tendered by counsel. (People v. Parks (1976), 65 Ill. 2d 132, 137; People v. Springs (1972), 51 Ill. 2d 418, 425; People v. Moorelander (1962), 25 Ill. 2d 309, 312.) Moreover, no party may raise on appeal the failure to give an instruction unless he shall have tendered it. (58 Ill. 2d R. 366(b)(2)(i).)\u201d People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513, 515.\nWhen the evidence in a murder case could support a verdict of manslaughter and the defendant does not request a manslaughter instruction, the giving of such an instruction is committed to the discretion of the trial court. (People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266.) Although there may be exceptions to the rule where it would be error for the court not to give a manslaughter instruction sua sponte, those exceptions are rare, being limited to cases where the evidence is very close on the question of whether defendant is guilty of murder or manslaughter. People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756; People v. Hall (5th Dist. 1975), 25 Ill. App. 3d 992, 324 N.E.2d 50; People v. Mitchell (1st Dist. 1973), 12 Ill. App. 3d 960, 299 N.E.2d 472.\nThe instant case does not fall within the exception. Although defendant\u2019s various accounts of the incident in question, standing alone, may have been sufficient to raise the issue of involuntary manslaughter, the other evidence in the case was overwhelmingly against such a result. Defendant said the victim knocked the gun from his hand or that the gun accidentally discharged as he was removing it from his belt. He denied there was any argument between him and the victim. However, two neighbors testified they heard a loud argument between a man and a woman in which the woman begged for her life in phrases characteristically used by the victim. All of the scientific evidence in the case indicated the fatal shot was fired within a very close range of the victim, probably within one inch of the victim. The failure of the trial court to sua sponte give the omitted instruction did not constitute a substantial defect which would invoke the limited exception to the waiver rule.\nFurthermore, we must be particularly hesitant to require a court to give an instruction on its own motion where it may well have been part of the defense strategy not to have the instruction given. (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) In that case the defendant contended that the trial court erred in not directing a mistrial sua sponte and severing the trials of the two defendants.\nThe court then held that the defendants waived the issue by failing to raise it at trial or in a post-trial motion, and that no plain error was shown to satisfy requirements for an exception to the waiver rule. There was no plain error because it was conceivable that defense strategy encompassed allowing the statements, with the inconsistencies, to be put in evidence to show their consistency in the larger and most crucial areas of the alibi defense. In the case at bar defense counsel argued against giving an involuntary manslaughter instruction, suggesting instead that the evidence would only support a verdict of guilty of murder or not guilty. It is reasonable to assume that it was part of defense strategy to have the jury presented with only these two alternatives. Under such circumstances we cannot say it was error for the trial court to proceed as defendant suggests. Indeed, \u201cThe interruption of this strategy may have, in itself, constituted error.\u201d People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227, 231.\nDefendant\u2019s fifth contention is that he was not proven guilty of murder beyond a reasonable doubt. The contention is clearly without merit. As indicated above the evidence was more than sufficient to support a finding that defendant murdered the victim during the course of a loud and violent argument. Defendant\u2019s contrary explanation of the death was rejected by the jury, whose function it is to weigh testimony, judge credibility and resolve disputed factual matters. (People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645.) We see no reason to disturb the jury\u2019s determination in this case.\nFinally, defendant argues it was error for the trial court not to give the second paragraph of Illinois Pattern Instructions, Criminal, No. 3.02 (1968), which provides:\n\u201cYou should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.\u201d\nHowever, this paragraph is to be given only where there is no direct evidence in the case. (People v. Minish (3d Dist. 1974), 19 Ill. App. 3d 603, 312 N.E.2d 49.) We have held that any statements made by defendant are to be considered as direct evidence. (People v. Fletcher (3d Dist. 1976), 40 Ill. App. 3d 537, 352 N.E.2d 10.) Defendant in this case gave at least three statements explaining how the incident in question occurred. These statements constituted direct evidence and justified the trial court\u2019s rejection of the tendered instruction.\nThe judgment of the Circuit Court of Will County finding defendant guilty of murder is affirmed.\nAffirmed.\nSCOTT, P. J, and ALLOY, J., concur.", "type": "majority", "author": "Mr. JUSTICE STENGEL" } ], "attorneys": [ "Julius Lucius Echeles, of Chicago, for appellant.", "Edward Petka, State\u2019s Attorney, of Joliet (James E. Hinterlong and Gerry R. Arnold, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD SPATARO, Defendant-Appellant.\nThird District\nNo. 77-282\nOpinion filed December 29, 1978.\nRehearing denied January 29, 1979.\nJulius Lucius Echeles, of Chicago, for appellant.\nEdward Petka, State\u2019s Attorney, of Joliet (James E. Hinterlong and Gerry R. Arnold, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0069-01", "first_page_order": 91, "last_page_order": 97 }