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People v. Hosty

OPINION FILED AUGUST 5, 1986.

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

v.

SHAWN HOSTY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Dwight McKay, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant Shawn Hosty was convicted of murder, armed violence and concealment of a homicidal death, and was sentenced to 40 years' imprisonment. He raises the following issues on appeal: (1) the trial court erred in limiting the scope of cross-examination of the State's chief witness; (2) he was not proved guilty beyond a reasonable doubt of murder; (3) the trial court erred in imposing judgment on two counts of murder where only one death was involved; (4) the trial court erred in entering judgment and imposing sentence on a conviction of armed violence based on a murder for which defendant was also convicted and sentenced; (5) the trial court improperly imposed a 40-year sentence for the Class 3 felony of concealment of a homicidal death; and (6) the sentence was excessive.

Marilyn Kogelis testified for the State that she had been married to the deceased, Eugene Kogelis. She saw him come home at 3 a.m. on November 6, 1983. He was high on heroin and left the house at 11:30 a.m. Around noon, defendant, a friend of Eugene's, called asking for him. He told Marilyn that Eugene had stolen $1,700 worth of heroin from him and he requested that she tell Eugene defendant was looking for him. She last saw her husband around 2 p.m. that afternoon, high and sitting in his car at his mother's house. She gave him defendant's message. Defendant phoned after November 6, asking where her husband was. On November 30 she saw her husband's car in a parking lot at O'Hare Airport.

Helen Kogelis saw Eugene, her son, at her home at 4 p.m. on November 6. The doorbell rang at 5 p.m. and Eugene stepped outside with defendant, who was yelling at him, and Pat Stomp, one of Eugene's heroin sources. Defendant and Stomp left after about 10 minutes, and Eugene left the house at 7 p.m. After she had gone to bed, she heard him leave the house again at 10:30 that night. After her daughter-in-law reported seeing Eugene's car at the airport, it was towed to a garage in Calumet City.

Police officer Kelly Matthews viewed Eugene's body in the trunk of that car on December 9. There were multiple puncture wounds in the head and body, scrape marks, and leaves and weed particles on the body and clothes. On December 10 defendant was arrested on an unrelated drug charge and was questioned about the homicide. Matthews told defendant he thought defendant was involved in the murder of Eugene Kogelis, but defendant was not arrested again and charged with the murder until January 11, 1984.

On December 19 Matthews met with Kathleen Wolf, who had lived with defendant from August 1981 to September 1983 and who had come forward with information on the murder. He obtained an order to install listening and taping devices in her apartment and on her phone from December 28 to January 7, 1984. Matthews testified that he never told Wolf what to ask defendant nor directed her conversations with defendant. Defendant visited Ms. Wolf's apartment once or twice between December 28 and January 7.

Kathleen Wolf testified for the State that she saw defendant and Pat Stomp in front of Stomp's mother's house around 4:15 p.m. on November 6, 1983. Defendant got in Wolf's car and said that Eugene Kogelis had taken from him heroin valued at $1,700. Defendant stated that he and Stomp were going to look for Eugene. Later that day, Wolf drove defendant to Eugene's parents' home and waited while he confronted Eugene. She drove defendant home after about 20 minutes, and he told her that Eugene was going to come over to explain what had happened to the heroin. Defendant said he got a gun from his brother and that he intended to kill Eugene. At the defendant's house Wolf asked defendant if he was really going to kill Eugene, and he told her not to worry, that he knew what he had to do.

Later, while they were watching television upstairs, defendant answered the door and Wolf heard voices from downstairs. Defendant called up to her that it was Eugene and that they were going to walk the dog. After five minutes she heard 4 to 5 gunshots, a pause and one more shot. Defendant came back in and told her he had killed Eugene, who had said "don't do it" after being shot in the back. She saw blood on his pants and socks. Defendant said he had to move the body closer to the house, and when he returned he had removed his pants and socks. He told her he had dragged the body closer and had covered it with leaves. He said she was his alibi and they were waiting for Billy Vanderver to come and take the body to the airport. Stomp and defendant's brother came to the house, and Stomp asked to see the body. He and defendant went to the basement after he and defendant came back in, and defendant handed Stomp a small bag. When Wolf left the house she saw deceased's car in the driveway.

She next saw defendant at his home on November 12. He told her not to say anything about the murder or she would be dead. He said he and Vanderver had taken the body to the airport that night. She testified that at a preliminary hearing she had said that defendant told her that Vanderver had melted the gun down. Defendant came to her apartment on November 19. When she asked if the body had been found, he told her that no one knew anything. In later conversations, he told her that only she, Pat and Denise Stomp, Billy Vanderver, Joe Hosty and Mike Hurley knew about the murder. On December 9 he called her on the pay phone in her building and told her that the deceased's body had been found, and that he wanted to meet with her. He called her at work and arranged a meeting at a motel; however, she did not go into the motel because it was surrounded by police.

On December 18 defendant called to say he had been picked up for questioning and would be over. He and Wolf went to a coffee shop where he told her the police had no clues and if she kept quiet he would not be stuck with the murder. Defendant warned her the police might try to trick her. On December 26 he told her he had worn work clothes during the murder and that there were no fingerprints. He burned the gloves and clothes he wore and he and Vanderver had driven the body to O'Hare. Defendant also said that Pat Stomp had been sentenced in Indiana that day and that he was afraid Stomp might talk to get a lighter sentence.

During cross-examination of Wolf, the State objected to defendant's attempt to question Wolf about the taped conversations with defendant, because the period of time went beyond the scope of the direct examination and would be hearsay. The trial court sustained the objection and later denied a defense motion to have Wolf declared the court's witness.

Defendant testified that he attempted to find Eugene Kogelis because he believed Eugene had stolen from him 17 grams of heroin. He saw Kathleen Wolf in the area and also argued with Eugene in front of Eugene's parents' home on November 6. Eugene had not admitted taking the heroin, and defendant was not satisfied with the meeting. He did not see decedent after that afternoon, and had called Marilyn Kogelis on November 7, 8, and 9, trying to locate Eugene.

The parties stipulated that four bullet wounds caused Eugene Kogelis' death and that leaf material taken from his body and from the car could have come from behind defendant's home. The court found defendant guilty of murder, armed violence and concealment of a homicidal death. It denied defendant's motion for a new trial and sentenced defendant to 40 years' imprisonment.

Defendant first contends that it was reversible error for the trial court to sustain the State's objection to his cross-examination of Kathleen Wolf concerning the taped conversations with defendant. He urges that the trial court improperly restricted the cross-examination because other State witnesses had testified to the taping, and ...


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