APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
On April 4, 1977, Mary Cantrell (hereinafter referred to as victim) was fatally wounded when a .20-gauge shotgun held by Walter Kradenych (hereinafter referred to as defendant) discharged. Defendant was charged by indictment with her murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(2)). After a bench trial, defendant was convicted and sentenced to serve 14 years to 14 years and one day in the State penitentiary. Defendant appeals his conviction, presenting the following issues for review: (1) whether defendant was proved guilty of murder beyond a reasonable doubt and (2) whether the trial court erred in allowing the prosecution, after trial commenced, to amend its witness list to include two persons who testified to oral, inculpatory statements allegedly made by defendant.
For the reasons hereinafter set forth, we affirm defendant's conviction.
The following evidence was adduced at trial: Ronald Rothmund, a Chicago police officer, testified that on April 4, 1977, he and his partner responded to a radio call that a woman had been shot at 1114 North Winchester. When he arrived at the building, he proceeded to the second floor apartment where he found a woman lying face down on the kitchen floor in a pool of blood. At this time he noticed a $20 bill in victim's hand, which he took into custody and inventoried. The officer conversed with a Mr. Mikka, who was also present in the apartment, and subsequently went outside to search for a person matching the description given to him by Mikka. As Rothmund returned to the doorway of the building, he noticed a .20-gauge shotgun shell on the ground.
John Ozga testified that on April 4, 1977, between 3 and 4 p.m. he was visited by defendant at 4025 West Palmer where Ozga lived with his mother. Defendant and Ozga conversed in the hallway and defendant asked Ozga if he had any .20-gauge shotgun shells, to which Ozga replied, "No." After Ozga told defendant that he did not know who was "messing around" with Mary (the victim), defendant stated that "he was going to catch him or her, kill him or her." There was no one else present during this conversation. Ozga's mother had previously left the apartment, and his girlfriend, although present in the apartment, was not in the vicinity of the conversation.
At an undetermined date subsequent to April 4, 1977, Ozga saw defendant at a basketball court and inquired about defendant's court case. Defendant replied that "he got off, or he thinks he is going to get off because it was an accidental death." Approximately two weeks to a month after this encounter, the two men again had occasion to meet at the same basketball court. Ozga inquired "how it happened and if he meant it," to which defendant replied, "Yeah, I think I meant it because she two-timed on me." Ozga never mentioned these conversations to the police because he did not think he would be a witness and did not want to get involved. The first time Ozga told anyone about his various conversations with defendant was when he spoke to the assistant state's attorney approximately two days prior to the day he testified.
Bruce Mikka testified that on April 4, 1977, at approximately 5-5:30 p.m. he was at his home at 1114 Winchester with his fiancee, Sophie Kurkowski, preparing dinner. Defendant arrived accompanied by his girlfriend, Mary Cantrell (victim); she went into the kitchen with Kurkowski, and defendant requested that Mikka accompany him to the living room. At defendant's request, Mikka loaned defendant $20 so that defendant and victim could go to a motel. While still in the living room, defendant was holding a brown, double-barrelled, sawed-off shotgun which he had brought with him to Mikka's apartment. During this conversation, defendant engaged in a "flipping action" with the gun which he produced by releasing a lever which allowed the gun to open and close by the movement of defendant's hand. While in Mikka's apartment, there were no harsh words exchanged between defendant and the victim, and she in no way indicated that she felt threatened.
The two men left the living room. Mikka returned to the kitchen and defendant, still carrying the weapon, went to the bathroom, where he remained for a few minutes. When defendant emerged, Mikka was at the stove. He glanced over his right shoulder and saw the gun lifted in the air. Mikka stated at trial that defendant pointed the gun "at" victim, and it discharged. However, the witness testified at the preliminary hearing that when he looked over his shoulder he "noticed the shotgun being lifted in the air and it blasted." Mikka also testified that he did not actually see defendant pull the trigger, but the victim was shot as a result of the "blast."
Immediately after the shot, both Kurkowski and Mikka screamed and Kurkowski ran from the apartment. Mikka told defendant to leave, whereupon defendant stated, "Don't tell anybody." Mikka left the apartment after defendant and saw defendant in the gangway dismantle the shotgun and leave the building. Mikka then found his fiancee and told her to notify the police.
Sophie Kurkowski's testimony substantially corroborated that of her fiance, Bruce Mikka. She stated that while she was at his apartment on April 4, 1977, at approximately 5 p.m., defendant and victim arrived together. No loud words were exchanged between the couple, and victim made no attempt to leave the apartment. Kurkowski did not see anything in defendant's hand when he went to the living room with Mikka, but when the two men returned to the kitchen, defendant was carrying a sawed-off shotgun. Defendant then went into the bathroom, but she was not certain whether he took the gun with him. The next time that she noticed the gun, defendant had it in his hand and he was standing near the kitchen table. She was sitting at the table with her back to the victim, but she could see defendant from that position. Defendant fired the gun, she turned around, saw the victim lying on the floor and then ran from the apartment down the stairs. She heard defendant ask Mikka to "not tell anyone." Defendant left the apartment after she did and ran past her down to the gangway where she observed him take the gun apart.
Although at the grand jury investigation Kurkowski testified that defendant "pointed the gun at" the victim, she was actually unable to see the victim from her seat at the table, immediately preceding the gunshot, and therefore could not ascertain where defendant was pointing the gun.
Hasey Petich testified that she was well-acquainted with the Cantrell family and had known the victim since she was two years old. On April 4, 1977, between 4 and 5 p.m., Petich was at a tavern and saw defendant walk past her to the back of the bar. Defendant had a shotgun shell in each hand, and he raised his left arm stating, "This bullet is for Mary," then raised his right arm stating, "This is for Puerto Rican Ray." Petich left soon after defendant and went to a drugstore to pick up some medicine. While there, she attempted to contact the victim's residence by telephone but the line was busy. Petich stated that she did not call the police during this time, but when she returned home she again unsuccessfully attempted to contact the victim's residence. She was not contacted by the police, nor did she contact them about defendant's threat. *fn1 She told the victim's family about the incident in the bar, but the first time she told any official was a few days prior to trial when she talked to the assistant state's attorney.
Sophie Ozga testified that on April 4, 1977, her son John was living with her. She left her house at approximately 2:30 p.m. to go to work. She did not see defendant that day, nor did she know whether her son had any shotguns in the apartment at that time. Police officers came to her house and confiscated a .12-gauge shotgun which they found behind the couch.
Robert Podgorny, a Chicago police officer, testified that on April 4, 1977, he began an investigation into the death of Mary Cantrell. In connection with the investigation, his partner received an anonymous telephone call concerning the location of the murder weapon, and they proceeded to the home of John Ozga. When Mrs. Ozga answered the door, they informed her that they were looking for her son and the weapon used to kill Mary Cantrell. Mrs. Ozga gave them permission to look in the apartment and, contrary to Mrs. Ozga's testimony at trial, Officer Podgorny stated that she told him that on the day of the shooting she saw defendant in her apartment. She further told the officer that she had seen a gun in the china cabinet prior to defendant's arrival, but that it was not there after his departure. Podgorny stated that the officers recovered a .12-gauge shotgun from the apartment, although it was not the murder weapon. They found no .20-gauge shotgun but discovered ...