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People v. Musial





APPEAL from the Circuit Court of Cook County; the Hon. VINCENT BENTIVENGA, Judge, presiding.


Rehearing denied December 24, 1980.

After a jury trial, defendant was convicted of criminal damage to property and two counts of attempt murder. He was sentenced to terms of 8 to 15 years on each attempt murder and one to three years for criminal damage to property — all to run concurrently. On appeal, he contends that (1) the trial court improperly refused to allow impeachment of a prosecution occurrence witness with a prior burglary conviction; (2) the sentences imposed and defendant's election of the law under which he was sentenced were influenced by the court's misunderstanding of the permissible minimum term; (3) the 8- to 15-year sentences for attempt murder were improper, since the legislature intended to classify attempt murder as a Class 4 rather than a Class 1 felony; and (4) the court failed to give sufficient consideration to mitigating factors in fashioning the 8- to 15-year sentences.

The record discloses that defendant and a friend (Michael Jarvis) were drinking in a bar when defendant became involved in a verbal altercation with Richard Rizzo concerning a woman named Chico. They went outside, apparently to settle the dispute, and it appears that Rizzo struck both defendant and Jarvis. A number of witnesses gave testimony as to subsequent events.

Bernadette Busching, a bartender in the tavern, testified that she saw Rizzo strike defendant outside the tavern but, with the help of Jody Bezdek, she was able to persuade Rizzo to return to the bar where he had another drink and then left; that she followed him across the street, where she saw him break a window of an automobile and try to reach defendant, who was seated behind the wheel of the car which was in front of a bicycle shop; that defendant started the car and drove about a half block away where he made a U-turn, came back, and then drove the car into a group of people in front of the shop — after which she saw James Coates lying on the ground; that the car left but was driven back, and she saw it roll over Coates and then crash into the bicycle shop; and that, when defendant got out of the auto, he said "[s]omething to the effect like, `he was so much bigger than I am that I had to use something.'"

Thannius Worna was in the bar and, when told there was a fight outside, he left the bar and observed a group of people in front of the bicycle shop across the street; that punches were thrown and a man was knocked down, after which he saw a man get into an auto, drive about 40 feet east down the street, make a U-turn, and then drive directly into the people; that someone bounced off the front of a car and fell in front of it; and that the car was driven off but came back a second time and crashed through the window of the shop.

Leroy Cavelle testified that he was standing outside of a nearby bar where he worked; that he heard shouting and saw an auto backing away from the bicycle shop where the window appeared to have been broken; that the auto went east, made a U-turn, and then drove completely inside the shop; and that he ran across the street and saw Coates lying on the ground in front of the shop. During Cavelle's testimony, the defense attempted to impeach him with an 11-year-old burglary conviction, and the court granted the State's motion to prohibit its introduction of evidence thereof, citing the 10-year rule of People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695. The trial court stated, however, that if Cavelle's credibility became an issue during the trial, it would reconsider that ruling.

Michael Jarvis testified that he and defendant left the bar after it closed and crossed the street to defendant's car when Rizzo called defendant a loud mouth and demanded that he stop "fooling around" with Chico, whom Rizzo said was the wife of a friend; that when defendant said he did not know Chico was married, Rizzo struck Jarvis and then defendant; that Jarvis tried to get into his car but Rizzo pulled him out, knocked him to the ground, and kicked him five or six times; that he managed to get away and then saw that Rizzo was trying to drag defendant out of the car; that he had gone around the building in search of a weapon when he heard a crash and saw Rizzo standing outside the shop with blood on his face and defendant with blood running from his nose.

James Coates testified that when he left the bar at the request of Bernadette Busching, he observed a group of people by an automobile parked in front of the bicycle shop across the street; that he joined the group and saw an unknown man lying on the ground; that although everyone was urging Rizzo to calm down, he went to the automobile and tried to open the passenger door; that the car sped off, made a U-turn after going about 40 feet and started back; that his attention then had been directed elsewhere, and he was struck by the car and lost consciousness; that when he awoke he was at the base of the picture window of the bicycle shop; that he had blood on his body and couldn't move his legs; that he then saw a car coming towards him but was unable to move and he again lost consciousness; and that when he awoke, he saw that the car had gone through the window of the bicycle shop.

As a result of the occurrence, Coates was so severely injured that at the time of the trial he was still unable to walk.

Defendant testified that he had talked with Chico but had had no conversation with Rizzo prior to leaving the bar; that as defendant and Jarvis crossed the street, he called them back, told defendant that he had a big mouth and had been "fooling around" with someone else's wife; that when Jarvis stated he did not know Chico was married, Rizzo struck Jarvis and then hit defendant; that Rizzo returned to the bar and he and Jarvis crossed the street where he entered his car, but as Jarvis was getting in, Rizzo appeared, pulled him out, and began beating him; that he (defendant) started the car, put it in low gear, floored it, and proceeded to drive the car directly at Rizzo; that he just "braised" Rizzo with the right side of the car, causing him to fly through the window and the front of his car to enter the building; that when Rizzo came at him again, he backed the car up about 10 feet, aimed the car at Rizzo again, proceeded forward as fast as he could but missed Rizzo and went completely into the building; and that he did not know Coates had been injured until afterwards.

Defendant admitted that he had intended to kill Rizzo out of fear for his life and that of Jarvis, but stated that he had not intended to injure Coates or to damage the bicycle shop.

In addition to its verdicts of guilty on the attempt murders and criminal damage to property, the jury also found defendant guilty of two counts of aggravated battery, but no sentence was imposed thereon as the court found them to be merged with the attempt murders as lesser included offenses. The court informed defendant that he could elect to be sentenced either under the statute in effect in 1976, when the offenses were committed — in which event a 4-year minimum sentence must be imposed for attempt murder as a Class 1 felony; or he could elect under the 1978 law — in which attempt murder was a Class X felony carrying a sentence of not less than six nor more than 30 years.

Defendant elected to be sentenced under the older statute and, after arguments in aggravation and mitigation, the sentences above set forth were imposed with the trial court stating that it was required to "go over and evaluate at least 20 different areas in regard to mitigation and aggravation that are set out under the new law and I assure you, * * *, ...

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