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People v. Bartall

OPINION FILED APRIL 8, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KURT BARTALL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL A. O'MALLEY, Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Cook County, the defendant, Kurt Bartall, was convicted of murder and armed violence and sentenced to a term of 20 years in the Illinois State Penitentiary. The defendant's main arguments on appeal are that the State failed to prove him guilty of murder beyond a reasonable doubt and that the trial court erred in permitting the introduction of evidence of another crime. The defendant also raises several instances of prosecutorial misconduct and other trial errors which will be discussed later in the opinion.

At approximately 12:20 a.m. on December 30, 1979, Betty Quinn, Eileen Kampwirth, Bill Will and Mark Tatum were standing in a Jewel parking lot located on Milwaukee Avenue near Austin. They had just come out of a bar called "The Bag." The parking lot adjoined the southeast bound traffic lanes. According to Kampwirth's testimony there were no walls between the parties in the lot and Milwaukee Avenue and no parked cars between the parties and Milwaukee Avenue. Kampwirth stated that she heard a gun shot which sounded like a very loud firecracker. She looked first at Will and then at Quinn who was on the ground to her right. Quinn was lying on her back and bleeding profusely from the face.

Will testified that while in the parking lot, he heard two bangs, not more than 45 seconds apart. After the second bang, he saw a car in the northwest bound lane going at a normal speed.

A significant issue on appeal concerns the testimony of Kathy Preze. She testified over objection as to an occurrence which took place on the evening of December 30, 1979, 20 hours after the shooting of Quinn. She stated that at about 10:30 that evening she was driving in a northwest direction along Milwaukee Avenue near Devon when a car pulled in front of her and hit the brakes. She swerved to avoid it and heard a noise like a firecracker. When she looked into the other car, the driver made an obscene gesture and then pointed a gun at her face. She identified the defendant as the man who pointed the gun at her. When she saw the gun, Preze put up her hand and swung the car into on-coming traffic. She heard another noise that sounded like a firecracker. The defendant's car then turned off its lights and sped away. Preze proceeded to the Niles police station and reported the incident. She later noticed a bullet hole on the passenger side above the rear tire. She saw the defendant at the Niles police station about a half hour later, and stated that the defendant's family had been friends of hers for years.

Chicago police detective Frank Cappitelli testified as to the contents of two statements made by the defendant. In the first statement, the defendant said that he was not on Milwaukee Avenue at the time of the Quinn shooting. He was in Elkhorn, Wisconsin, with his girlfriend, Cindy Kerstein. In the second statement, the defendant stated that he and Kerstein were driving northwest on Milwaukee Avenue in the late evening hours of December 29, 1979. He looked to see if there were any police around him and when he saw no one he fired two shots. He looked into the Jewel parking lot and did not see anyone in the parking lot.

A firearms examiner for the Chicago Police Department testified that in his opinion, two bullet jacket fragments which were removed from the body of the deceased were fired from the gun recovered from the defendant. By stipulation, Carol Christian testified that she was the manager of Rose's Cleaners, located at 5762 North Milwaukee Avenue. She was contacted by the Chicago Police Department at about 4 a.m. on December 30, 1979, and went to the store. She found a bullet hole in the front window. An evidence technician recovered a bullet from the wall.

Cindy Kerstein testified for the defense. She stated that she was engaged to the defendant and was driving with him along Milwaukee Avenue on the evening of December 29, 1979. As they were driving, she heard two shots which were fired from the defendant's gun. She described the condition of the car windshield as "just how they get in the winter time when you don't wash your car. That's slush, dirt on there." Kerstein said she did not see people on the street at the time she heard the shots and did not see people near that area on the sidewalk after she heard the first shot fired. The prosecutor was later permitted to show that at the preliminary hearing she testified that she saw people on the sidewalk on the driver's side of Milwaukee Avenue. Kerstein testified that after the shots were fired, she and the defendant drove to Elkhorn, Wisconsin. The next evening at approximately 10:30, she was again driving along Milwaukee Avenue with the defendant. She was dozing off in the passenger's seat and felt the defendant hit the brakes. The defendant appeared to be angry, and was saying, "[T]hey cut me off. They cut me off." He then said that he was going to "shoot her tires out." An objection to that statement was sustained.

During the course of the trial, the jury visited the scene and was allowed to observe the lighting conditions in the parking lot where Quinn was shot.

The first contention raised by the defendant is that the State failed to prove him guilty of murder beyond a reasonable doubt. He claims that the evidence established that he was, at worst, guilty of involuntary manslaughter.

To support this contention, the defendant points out that there is no direct evidence that he saw Quinn or that he intentionally fired at her. Thus, to find him guilty of murder, the jury had to infer that conditions were such that he must have seen the people standing in the parking lot and further, that he intended to shoot at Quinn. According to the defendant, that inference could not reasonably be drawn from the evidence presented to the jury for several reasons. First, the defendant and Quinn were complete strangers and it is therefore unreasonable to infer that he intended to fire at her. Second, although the State presented evidence that the parking lot was "well-lighted" at the time of the shooting, Kerstein's testimony established that the defendant's vision was clouded by the slush and dirt on his windshield. Third, the shooting occurred at 2:30 a.m., a time when people are not normally out in the streets. Fourth, the defendant left the scene at a normal rate of speed, which indicated that he had no reason to believe he had hurt anyone. Finally, the evidence showed that the first of the two bullets fired by the defendant went into the window of a store which was unoccupied at the time. This fact tended to show that the defendant was merely engaging in reckless behavior and did not intend to fire into a group of people.

• 1 It is well established that the question of whether a homicide is murder or involuntary manslaughter is to be resolved by the trier of fact. (People v. Farmer (1980), 91 Ill. App.3d 262, 414 N.E.2d 779.) A court of review will not disturb a jury's verdict in this respect unless the evidence is palpably contrary to the finding or so unsatisfactory as to raise a reasonable doubt of the defendant's guilt. People v. French (1972), 3 Ill. App.3d 884, 279 N.E.2d 519.

• 2 Contrary to the defendant's assertion, the jury did not have to conclude that he intentionally fired at Quinn in order to find him guilty of murder. Under the Illinois definition of murder, the jury need only find that he voluntarily fired shots at a group of people, without justification, knowing there was a strong probability of death or great bodily harm to one or more of the individuals present. Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2).

• 3 In the case at bar, the jury was called upon to draw certain inferences as to the manner of Quinn's death from the circumstantial evidence presented. The State presented evidence that the parking lot was well illuminated and that there were no cars or other obstacles between the defendant's car and the group standing in the lot which would obstruct the defendant's view. The jury had the opportunity to observe the lighting conditions in the lot and, as evidenced by the verdict, concluded that the defendant was able to see the people standing there. Thus, the jury inferred from all the evidence before it that the defendant voluntarily fired a gun in the direction of a group of people he saw standing in a parking lot. The jury chose to disregard those arguments and explanations that would cause reasonable doubt. In our judgment, there was sufficient evidence to allow the above inferences to be drawn and to sustain the jury's verdict. The cases cited by the defendant do not require a different result. In People v. Bembroy (1972), 4 Ill. App.3d 522, 281 N.E.2d 389, the court reversed a murder conviction because the trial court had refused to give an instruction on involuntary manslaughter. Bembroy therefore does not contradict the proposition that the question of whether a killing is murder or involuntary manslaughter is a question of fact for the jury. In the case at bar, the jury was given instructions on both murder and involuntary manslaughter. In People v. Felton (1973), 12 Ill. App.3d 201, 298 N.E.2d 372, the defendant fired a shot through a closed door, killing her boyfriend. The appellate ...


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