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People v. Bartall

OPINION FILED OCTOBER 21, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

KURT BARTALL, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the circuit court of Cook County, the Hon. Paul A. O'Malley, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 2, 1983.

In the early morning hours of December 30, 1979, the defendant, Kurt Bartall, fired two shots from his automobile as it traveled along Milwaukee Avenue in Chicago. One of these shots killed a young woman who was standing in an adjacent parking lot. In a jury trial in the circuit court of Cook County the defendant was convicted of murder and armed violence and was sentenced to imprisonment for 20 years.

The appellate court, with one justice dissenting, reversed the defendant's conviction. (105 Ill. App.3d 867.) The majority of the appellate court concluded that it was reversible error for the trial court to admit evidence of a shooting incident that occurred nearly 20 hours after the homicide. The dissenting justice's view was that the subsequent shooting incident was admissible to establish the context of the defendant's arrest. (105 Ill. App.3d 867, 875 (Linn, J., dissenting).) He also suggested that even if it was improper to admit the subsequent shooting incident, this error was harmless beyond a reasonable doubt in view of the overwhelming evidence of the defendant's guilt.

This court granted the People's petition for leave to appeal (87 Ill.2d R. 315(a)). The defendant contends that his conviction must be reversed because he was not proved guilty of murder beyond a reasonable doubt, because the trial court improperly admitted evidence of the subsequent shooting incident, because the trial court committed other errors, and because the prosecutor made inflammatory and highly prejudicial remarks in his opening and closing statements. Finding no reversible error among these claims, we reverse the judgment of the appellate court and affirm the decision of the circuit court.

THE EVIDENCE AT TRIAL

On the evening of December 29, 1979, the victim, Betty Quinn and a friend, Eileen Kampwirth, visited a tavern at 5840 North Milwaukee Avenue in Chicago. Quinn parked her automobile in a grocery store parking lot about half a block away. The lot was adjacent to the southeast-bound lanes on Milwaukee Avenue, and Kampwirth testified that Quinn's automobile was parked 12 feet inside the curb.

At the tavern the two women met Mark Tatum and Bill Will, friends of Kampwirth. At about 2:30 a.m. on the morning of December 30, 1979, the four left the tavern together and went to Quinn's automobile. Kampwirth and Will both testified that as the group stood in the parking lot there were no parked cars, walls or other obstructions between them and the street. Suddenly, Kampwirth heard a gunshot which sounded like "a very loud firecracker." Will, on the other hand, heard two bangs no more than 45 seconds apart. Shortly after the first bang Will saw Quinn as she "looked out towards Milwaukee Avenue." After the second shot he saw an automobile heading away from the parking lot. The automobile appeared to be traveling at the speed limit in the inside northwest-bound lane of Milwaukee Avenue. Both Will and Kampwirth turned to look at Quinn, who had been standing the closest to Milwaukee Avenue, and found her lying on the ground bleeding profusely from the face.

Will also testified that he lives near the parking lot and that on occassion he has walked at night on the sidewalk across the street from it. He stated that on such occasions the light from the street lamps was sufficient to illuminate objects in the parking lot.

Shortly after the shooting, Quinn was pronounced dead at a nearby hospital. A physician who performed an autopsy testified that the victim died from a bullet wound to the head. At the time of the autopsy the victim was 5 feet 6 inches tall, and a bullet entrance wound was found on the rear of her head about three inches from the top. The wound followed a horizontal course through the victim's head, and a bullet exit wound was located near the right upper eyelid. Two bullet jacket fragments were recovered in the course of the autopsy.

Police evidence technicians also recovered a bullet from a dry cleaners located several doors down Milwaukee Avenue from the parking lot. This bullet had left a hole in the front window of the building about six feet off the ground.

Over the defendant's objection the trial court admitted evidence of a subsequent offense by the defendant in order to establish his intent in the Quinn homicide. The testimony of Kathy Preze provided most of the evidence of the subsequent offense. Preze testified that at about 10:30 p.m. on December 30, 1979, she was driving her automobile northbound on Milwaukee Avenue when a silver automobile with license number KB 26 swerved in front of her and braked hard. Preze swerved into another lane and a short time later heard a noise that sounded like a firecracker. As the vehicles continued down the highway a man in the driver's seat of the other automobile, whom she later identified as the defendant, made an obscene gesture at her and pointed a gun at her face. Preze swerved her automobile into oncoming traffic to avoid the gun and heard another noise that sounded like a firecracker. The defendant's automobile then "turned off its lights and sped away."

Preze immediately reported the incident to the Niles police department, and the defendant and Cindy Kerstein, his fiancee, were apprehended within the hour. At the time of his arrest the defendant was wearing a shoulder holster which contained a loaded handgun. Two empty rounds and a box of live ammunition were found on the floor of the defendant's automobile. Preze was in the Niles police station as the defendant and Kerstein were brought in, and she testified she heard the defendant call out several times to his fiancee: "[D]on't tell them anything, we'll get out of this one. Just don't tell them anything." In the station it first occurred to Preze that the defendant was an acquaintance of her family.

An inspection of Preze's vehicle revealed a bullet hole in the fender above the right rear tire, and about two months after the incident Preze discovered a bullet lodged in a box in the trunk of her automobile. Sergeant Vincent Lomoro, a police evidence technician, compared this bullet and the bullet fragments recovered in the autopsy of Betty Quinn with bullets test fired from the gun the defendant was carrying at his arrest. He concluded that the bullet fragments and the bullets were all fired from the defendant's gun.

Frank Cappitelli, a Chicago police detective, visited the parking lot on Milwaukee Avenue between 2:30 a.m. and 3 a.m. on the morning of the homicide and observed that the lighting in the area was sufficient to illuminate the surrounding buildings and automobiles on Milwaukee Avenue. The following evening Detective Cappitelli interviewed the defendant at the Niles police station and told him that he was investigating a homicide which had occurred on Milwaukee Avenue in the preceding day or so. The defendant expressed a willingness to talk with the detective, but denied having been on Milwaukee Avenue the evening before or having committed a shooting there. He stated that he was in Elkhorn, Wisconsin, with his fiancee and that the weapon recovered by the Niles police had been purchased in Wisconsin at about 10 a.m. on the morning of December 30.

The detective returned the following morning, and in this interview the defendant gave him another statement. The detective testified:

"[The defendant] stated that at approximately 11:30 in the p.m. on 29th December '79 he was on Milwaukee Avenue with his girlfriend Cindy Kerstein, that they were proceeding northwest on Milwaukee Avenue, that he fired two shots at approximately the 5700 or 5800 block on Milwaukee Avenue, that before he fired the shots he looked around to see if there was any police or anyone else. He stated at that time he didn't see anyone. He then stated he looked into the parking lot and did not see anyone in the parking lot. He also told me that when he fired the weapon, he used his left hand out the window in an upward direction." [The record reflects that the detective bent his left arm at the elbow and pointed his hand towards the ceiling of the courtroom.]

When the detective told the defendant that "it was virtually impossible or impossible for him to fire a weapon from this position and have the path of the bullet strike the objects that we assumed they did strike" the defendant admitted that "well, maybe it wasn't like this." The defendant also told the detective that after the shooting he and Kerstein had proceeded to Elkhorn, Wisconsin, and returned to Chicago late the following evening.

The prosecution offered several exhibits which were received in evidence, including pictures of the scene of the homicide, a picture of the victim, a picture of the defendant, a picture of the bullet hole in the fender of Preze's automobile, and pictures of the defendant's automobile. The court also arranged for the jury to view the scene of the homicide during the nighttime.

Cindy Kerstein was the only witness for the defense. She testified that in the early morning hours of December 30, 1979, she was with the defendant as he drove his silver Thunderbird down Milwaukee Avenue in Chicago. They had been driving around for several hours without incident, but as they reached the 5700 block of North Milwaukee Avenue she heard a gunshot come from where the defendant was sitting. Almost immediately she heard a second shot. Kerstein screamed at the defendant and asked him what he was doing. The court sustained an objection by the prosecutor and did not permit Kerstein to testify concerning the defendant's response to her query.

Kerstein also testified that it had recently snowed and the windshield and windows of the car had so much dirt and slush on them that one could not see out of them. She claimed that she did not see any people on the sidewalk when she heard the defendant fire the shots, but the prosecution offered her sworn testimony at the preliminary hearing in which she stated that after the gunshot she saw people on the sidewalk on the defendant's side of the automobile. Moreover, she admitted on cross-examination that she did see people on the sidewalks in another block farther down on Milwaukee Avenue.

Kerstein testified that after the shooting she and the defendant drove to the defendant's summer home in Wisconsin and spent the night there. The following evening they returned to Chicago and were driving on Milwaukee Avenue near Devon when she felt the defendant hit his brakes and swerve the vehicle around a parked automobile. She reported that the defendant was angry and said, "They cut me off. They cut me off." She testified that the defendant said he was going to shoot out the tires on the other vehicle, but when the prosecutor objected, this remark was stricken from the record. Shortly after the defendant made these remarks, Kerstein heard a gunshot coming from where the defendant was sitting.

On cross-examination the prosecutor attempted to impeach the value of Kerstein's testimony by questioning her about a false statement she had made to police in which she had first told them that at the time Quinn was killed, she and the defendant were in Wisconsin and that she had never seen the gun found on the defendant at his arrest.

THE SUFFICIENCY OF THE EVIDENCE

"In criminal cases * * * it is our duty, where a verdict of guilty is returned by a jury or where a similar finding is made by a court * * *, not only to carefully consider the evidence but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged." People v. Jordan (1954), 4 Ill.2d 155, 156.

Here, the defendant contends that the prosecution failed to prove him guilty of murder beyond a reasonable doubt because it did not establish that he had the mental state required for that crime when he shot the victim from his automobile. In his brief the defendant admits that "[t]he killing of Betty Quinn was a senseless, tragic occurrence," but he contends that he was, at most, reckless in shooting her and that, at worst, he is guilty not of murder but of involuntary manslaughter.

"The common-law distinctions between murder and manslaughter have always involved considerations of degree [citations], and similar considerations appear in the Code definitions" of those crimes. (People v. Davis (1966), 35 Ill.2d 55, 60.) Section 9-1(a) of the Criminal Code of 1961 defines the crime of murder and provides in part that "[a] person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death * * * [h]e knows that such acts create a strong probability of death or great bodily harm to that individual or another." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(2).) On the other hand, the Code defines the crime of involuntary manslaughter as requiring only "reckless" conduct of a type "likely to cause death or great bodily harm to some individual." (Ill. Rev. Stat. 1977, ch. 38, par. 9-3(a).) "A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow * * *; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 4-6.

To prove the crime of murder, it is not necessary to show that the defendant has a specific intent to kill or do great bodily harm or that he knows with certainty that his acts will achieve those results. "It is sufficient to show that he voluntarily and wilfully committed an act, the natural tendency of which was to destroy another's life." (People v. Latimer (1966), 35 Ill.2d 178, 182-83.) In People v. Cannon (1971), 49 Ill.2d 162, for example, the defendant was found guilty of murder notwithstanding his testimony that he had accidentally killed the victim when he shot into the air over a crowded playfield to warn a rival gang member against attacking him with a baseball bat. In affirming the murder conviction this court observed that the defendant "intended to fire the gun and did in fact point it and shoot in the decedents' general direction. This act, done voluntarily and wilfully, is sufficient evidence of the intent requisite to constitute the offense of murder." 49 Ill.2d 162, 166; cf. People v. Gonzales (1968), 40 Ill.2d 233, 241-42 (where defendant admitted firing a shotgun into a group of men standing in front of a tavern, no error occurred in denying a manslaughter instruction); Mayes v. People (1883), 106 Ill. 306, 313 ("`* * * if a ...


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