APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Joseph Ganci, was charged by indictment with the offenses of murder, attempt murder and conspiracy to commit murder in connection with the shootings of David Wright and Anthony Hernandez. (Ill. Rev. Stat. 1973, ch. 38, pars. 8-2, 8-4, 9-1.) Upon a bench trial defendant was found to be guilty as charged. Judgment was entered on the verdicts with respect to the charges of murder and attempt murder. Defendant was sentenced to serve concurrent terms of confinement in the Illinois State Penitentiary of 33 to 100 years and 11 to 33 years respectively.
From entry of the judgments of conviction defendant appeals contending: (1) that the trial court improperly denied defendant's motion for substitution of judges; and, (2) that the trial court abused its discretion in limiting the scope of defendant's cross-examination and in unduly extending the scope of the prosecution's cross-examination of certain defense witnesses.
A review of the evidence adduced at trial reveals that in the late afternoon hours of June 8, 1974, David Wright and Anthony Hernandez were struck by gunfire as they walked together near the intersection of Devon and Lakewood Avenues in Chicago, Illinois. The gunman, Joseph Ganci, approached the pair and discharged four rounds from a pump-action sawed-off shotgun into their bodies from point-blank range. Two of the rounds were fired as Wright and Hernandez lay prostrate in the street. Wright's wounds proved to be mortal. Ganci fled the United States, repaired to the Bahamas and was arrested upon his return to the United States.
At trial, Hernandez testified that on the afternoon in question, he and Wright had lunch together and visited the "R" Lounge, located at Clark Street and Devon Avenue, for approximately 1 1/2 hours during which time each consumed several alcoholic beverages. Hernandez indicated that neither he nor Wright were armed although the latter carried a brown brief case. According to Hernandez, as they approached the intersection of Lakewood and Devon Avenues a brown Thunderbird automobile driven by one Gary Kellas drew up so as to block the walkway. Joseph Ganci exited the vehicle, drew a sawed-off shotgun, pointed it at Hernandez and ordered him into the car. Hernandez testified that he raised his hands above his body while stepping backward and away from Ganci. Ganci stepped forward and discharged his shotgun. Hernandez testified that he and Ganci were involved in a fist-fight one week prior to the shooting during which Ganci knocked Hernandez unconscious.
During its case-in-chief the State adduced the testimony of five occurrence witnesses who were in the immediate vicinity at the time of the shooting.
Mary Grob testified that she observed two men, one of whom carried a brief case, approach the intersection in question; that another man, identified as defendant, appeared at the corner wielding a gun; that the two men faced defendant, begged him not to shoot, and backed into the intersection; and, that during the confrontation both men had their "hands up." According to Grob, one of the men dropped his brief case and was shot. Shortly thereafter, his companion was wounded and defendant proceeded to fire additional shots into his prostrate victims. This description of the occurrence was substantially corroborated by the testimony of other bystanders including Lorraine Howard, Elaine Geiser, O.D. Mason and Charles W. Dietrich. Four expended shell casings were recovered from the scene by police department personnel as well as an opened brown brief case found to contain only Wright's personal effects.
The deceased's wife testified that her husband often had occasion to carry a brief case in connection with his employment. Post-mortem examination of Wright's body established that he had suffered two shotgun wounds; that both shots were fired from a distance of approximately two feet; and, that at the time the shots were fired, Wright's left arm and head were "flexed" in such a manner that his hand was cocked toward his head.
The State also adduced the testimony of Agent Gerard Forrester of the Federal Bureau of Investigation. Forrester effected defendant's arrest in Miami, Florida, and thereafter interrogated defendant concerning the events of June 8, 1974. According to Forrester, defendant informed him that prior to the shootings defendant had been in the vicinity of the "R" Lounge when an unidentified female acquaintance emerged from the tavern and advised defendant that two individuals were in the bar with "pieces" (i.e., a pistol and a sawed-off shotgun concealed in a suitcase). Ganci allegedly stated that he thereafter observed Hernandez approaching with a shotgun; that defendant disarmed Hernandez, seized the weapon and ordered the pair to "freeze"; that the pair separated and moved as if reaching for weapons. Defendant stated that he feared for his life, began shooting the weapon and became so "frightened" that he continued to fire after Wright and Hernandez had been incapacitated. Forrester testified that Ganci made no mention of a brief case being in possession of either Wright or Hernandez. According to Forrester, Ganci also informed him that at the time of his arrest Ganci had intended to return to Chicago to "say good-bye to his old lady" and then "lay low in a small town."
At trial, defendant testified in his own behalf and substantially denied making the statements attributed to him by Forrester. Defendant indicated that on the afternoon in question he received a telephone call from one Janet Wagner who informed him that two men, one of whom was Hernandez, were looking for him at the "R" Lounge and that Hernandez was threatening to kill him to revenge the previous altercation. According to defendant, another individual identified as John Kristovich, made a similar report to defendant and further stated that one Danny Marzano had observed what Marzano believed to be the barrel of a shotgun concealed inside a suitcase carried by Wright. Neither Kristovich nor Marzano testified at trial.
Defendant testified that he then obtained a sawed-off shotgun and, in the company of James Oldham and Gary Kellas, drove to the "R" Lounge in order to find Hernandez and "clear up" the matter. Ganci testified that he observed Hernandez and his companion walking in the vicinity of Lakewood and Devon Avenues. Ganci did not recognize the individual identified as David Wright. Ganci stated that he asked Hernandez if he was looking for him but that Hernandez continued to walk. Thereafter, according to defendant, Hernandez approached the car in which defendant was seated and threatened to "blow [defendant] away." Defendant lifted his shotgun and ordered the pair to "freeze." As defendant exited the vehicle the two men backed away and made what defendant asserted were suspicious moves toward their belts and the suitcase. Defendant testified that he feared the suitcase contained a weapon, that he fired his shotgun in self-defense and continued to fire because he was frightened. Defendant admitted that he fled the scene after the shootings.
Defendant also adduced the testimony of Nicholas Nyznyk. Nyznyk testified that he was tending bar on the occasion in question and that John Kristovich, Janet Wagner, Danny Marzano, Anthony Hernandez and his friend were amongst the patrons in the bar on that afternoon. Nyznyk stated that he heard Hernandez ask for defendant and threaten to "get even" with defendant. Janet Wagner testified that she telephoned defendant after she had spoken to John Kristovich and relayed Hernandez' threats against defendant's life.
Initially, defendant contends that it was error for the trial court to deny defendant's motion for substitution of judges without a hearing pursuant to section 114-5 of the Illinois Code of Criminal Procedure. (Ill. Rev. Stat. 1973, ch. 38, par. 114-5.) The relevant statutory provision appears as follows:
"(c) * * * [A]ny defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion."
1 While it is true that a motion for substitution of judges is to receive liberal rather than strict construction (People v. Harston (1974), 23 Ill. App.3d 279, 319 N.E.2d 69), a defendant must comply with the statutory provisions for the motion and must file it at the earliest practicable moment. (People v. Breitweiser (1976), 38 Ill. App.3d 1066, 349 N.E.2d 454.) Defendant must show cause and his ...