Appeal from the Circuit Court of Cook County; the Hon. George
Marovich, Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
The defendant, Julian Sowinski, was charged by information with the murder of Timothy George. Following a jury trial in the circuit court of Cook County, the defendant was convicted of murder and sentenced to 25 years' imprisonment. The defendant now appeals his conviction.
The issues raised by the defendant in this appeal are: (1) whether the jury was properly instructed on the law pertaining to the charge of murder when self-defense was an issue in the case; (2) whether the State failed to prove beyond a reasonable doubt that the defendant was unjustified in his use of force; (3) whether the defendant was denied effective assistance of counsel; (4) whether the trial court erred by not giving a voluntary-manslaughter instruction sua sponte; and (5) whether the trial court abused its discretion in determining the defendant's sentence.
We affirm the defendant's conviction.
On May 15, 1983, at approximately 7 a.m., Timothy George was found dead on the lawn of his home in Alsip. A subsequent autopsy revealed that George died of a single gunshot wound to the stomach. A .25-caliber bullet was recovered during the autopsy, and also found in George's blood at that time were 174 milligrams of alcohol per 1000 milliliters of blood, which indicted that he was intoxicated at the time of his death.
At the defendant's trial, Thomas Hogan testified that he had met Timothy George for the first time at a party in Tinley Park on the evening of May 14, 1983. At approximately 1:30 a.m. on May 15, 1983, George asked Hogan for a ride home. Hogan stated that George appeared to be heavily intoxicated, and was having difficulty walking and talking. The two left the party at approximately 2 a.m. in Hogan's 1979 maroon Pontiac Firebird.
When they reached the intersection of 135th and Harlem, Hogan drove into the parking lot where Chrissy's Bar was located and stopped at George's request. Hogan stated that he and George got out of the car and walked up to the front door of the bar. Upon discovering that the door was locked, George began pounding on the door. Hogan heard a voice from inside the bar yelling, "we're closed." Hogan urged George to leave, but he refused and began kicking the door. Hogan then turned away from George and started to walk towards his car. On his way to the car Hogan heard George say, "Come on out here so I can kick your ass." He then heard the bar door open and the sound of people arguing. As Hogan reached his car, he heard several gunshots. Hogan turned around and saw a man holding a gun above his head. Hogan saw the man fire two more shots. George returned to Hogan's car and told Hogan that he had been shot. He showed Hogan his wound which, according to Hogan, was on the left side of his body.
Hogan testified that he then drove his car to the back of the building to get away from "the man with the gun." After George began to get sick, Hogan stopped and helped him get out of the car. George then vomited in the parking lot.
About five minutes later, Hogan helped George get back into the car, and asked him if he wanted to go to a hospital. George said no, and stated that he wanted to go home. When they arrived at George's house, Hogan pulled George out of the car, put him on the front lawn, and left. Hogan testified that he did not call the police or notify anyone because he was afraid. He did not talk to the police regarding the incident until September 1983, when the police contacted him concerning George's death.
At the trial, Hogan was unable to make an in-court identification of the individual who fired the gun at George. He did testify that he never saw George with a weapon in his hand.
The record further reveals that at the time of the incident, the defendant and several other employees of Chrissy's Bar were inside the bar celebrating the birthday of Elaine Radz, a waitress at Chrissy's. The defendant was the manager of Chrissy's Bar and had closed the bar at its normal closing time of 3 a.m. that morning. The front door of the bar was locked during the celebration. Several of the employees who were present inside the bar during the incident also testified at the defendant's trial.
Paul Zajec, who was working as a bartender at Chrissy's on the morning of May 15, 1983, testified that the bar closed at 3 a.m., and that sometime thereafter someone began pounding on the door asking for beer. Zajec stated that the defendant went to the door and started arguing with the man outside. Zajec could hear the defendant yelling, but he could not hear what the defendant was saying. The arguing went on for approximately two minutes. Zajec then heard two shots fired. He looked out the window behind the bar and saw the defendant standing approximately 4 feet away from the door holding a gun in his right hand. Zajec saw the defendant extend his right arm at chest level and fire two or three more shots. He could see two men he did not know standing about 50 feet away from the defendant, directly in the defendant's line of fire. Zajec stated that the two men were shouting at the defendant, and did not appear to have any weapons in their hands.
Zajec further testified that the two men got into a "1977 or 1978 Firebird." Looking out a different window, he watched the two men drive around to the back of the building and saw them get out of the car. Zajec testified that he saw one man lying on the ground and the other man standing over him. By that time, the defendant had come back into the bar through the front door. Zajec told the defendant that he thought the defendant had shot the man. The defendant responded that the man was just "throwing up" because he was drunk.
Steven Guevera was also tending bar at Chrissy's during the early morning of May 15, 1983. He, too, testified that after the bar closed someone began kicking the front door asking for beer, and that the defendant went to the door and told the man that the bar was closed. The man repeated his request for beer and then said either, "do you want to get blown away" or "you're gonna get blown away." According to Guevera, the defendant opened the door and told the man to leave. Guevera then saw the defendant put his hand into his pocket, take something out of his pocket, and as he did so, turn his back away from Guevera. Guevera stated that he heard two shots which he presumed were fired by the defendant. After the shots were fired, the defendant came back into the bar and handed Guevera a small chrome and silver gun. The defendant told Guevera to put the gun away. Guevera cleaned the gun by wiping the handle, and put the gun under the bar. He testified that he never saw the gun again. When asked on direct examination, Guevera stated that he never saw the man who was banging on the door with any weapon in his hands.
Carmen Nudo, who worked as a doorman at Chrissy's Bar, and Elaine Radz, who, as stated previously, was a waitress there, also testified at the trial. Much of their testimony was similar to that of Paul Zajec and Steven Guevera. They testified that they heard banging at the door and that the defendant went to the door and told the man that the bar was closed. After the man refused to leave, the defendant opened the door and went outside. Nudo testified that he heard people arguing, followed by the sound of gunshots. Nudo went to the door, stepped outside and saw two men he did not know standing near a car. One of the men told Nudo that "he was going to get his brothers and come back and fix them all." The two men then got into the car and drove off. After the defendant and Nudo returned to the bar, the defendant told Nudo that he "gave the guy a crack upstairs the head." When Nudo asked the defendant about the shots he had heard, the defendant replied, "never mind."
Ms. Radz testified that she was able to identify the man at the door as Timothy George, and that he was not carrying a weapon. She said that she did not know what transpired after the defendant unlocked the front door and went outside. Ms. Radz did testify that following the incident no one had called the police. She also stated that on the following Monday, May 16, 1983, the defendant told her not to mention the incident to anyone, because he had not yet told the owners of the bar.
The defendant, who testified on his own behalf, stated that shortly after he had closed the bar at 3 a.m. on May 15, 1983, someone began pounding and kicking the door asking for beer. The defendant told the man to leave because the bar was closed, but the kicking continued. The defendant then opened the door and heard the man say, "you want to get blown away?" and "what the hell's with you you want me to blast you?" The defendant stated that the man turned to his left and reached into his back pocket. At that point, the defendant pulled out his gun and fired two warning shots into the air. The defendant stated that the man continued to reach into his pocket and pulled out an object that "flashed and made a loud noise." The defendant then fired another warning shot into the air. He said the other man fired one shot straight ahead, and then put what the defendant thought was a gun into his back pocket. The defendant fired another shot, but stated that he never fired anywhere near the man, and that all of his shots were fired into the air. The defendant stated that the man did not appear to have been shot. He said that the man swore at him and told him that he would be back with his brothers to get him and everyone else in the bar. Shortly thereafter, everyone left the bar because they were afraid the man might return with his brothers.
The defendant testified that the gun he used that night was a .22-caliber automatic and belonged to the owners of Chrissy's Bar, George and Christina Thorp. He stated that he was carrying the gun in his pocket on the morning of the occurrence because he was getting ready to leave and usually took the gun home with him every night. The defendant said that he did not call the police because the person creating the disturbance had left, and everyone wanted to go home. He stated that he left the gun at the bar that evening, but when he returned to the bar the following Monday morning he could not find the gun. He said that he learned of the victim's death approximately one week later, but did not call the police. He was eventually contacted by the Alsip police department in September 1983 as part of its investigation into George's death.
Glynes McDonnell was called as a rebuttal witness. She testified that she lived with George, and that they left home together to go to a party on the night of May 14, 1983. She stated that George was dressed in a white T-shirt and gray tweed trousers when he left home that evening. These trousers did not have a right rear pocket, and the left rear pocket was stitched almost completely closed. McDonnell further stated that George was right handed.
After the close of all the evidence and during the instruction conference, the defendant advised the court that he had conferred with his attorney regarding alternative verdicts, and instructed his attorney not to tender any instructions other than guilty and not guilty of murder. Defense counsel also told the assistant State's Attorney that he only wanted instructions on murder and self-defense. The State then submitted certain definitional and issues instructions without any objection by defense counsel. The court accepted the instructions as tendered.
During closing arguments, defense counsel stated that the defendant did not believe he had shot Timothy George, but that if he did, it was in self-defense. Defense counsel told the jury that the State had the burden of proving the defendant guilty beyond a reasonable doubt. In its rebuttal argument, the prosecution acknowledged its burden of proof for the murder charge, and advised the jury that the court would instruct them on the issue of self-defense.
Thereafter, the jury found the defendant guilty of murder. The trial judge entered judgment on the verdict and, subsequently, sentenced the defendant to 25 years' imprisonment. The judge stated that this sentence included one additional year over the 20 year minimum for each month of the five-month period that the victim's family did not know what had happened to Timothy George. After plaintiff's post-trial motions were denied, the defendant filed this appeal.
The defendant's first contention on appeal is that the jury was improperly instructed on the law pertaining to the charge of murder when self-defense was an issue in this case.
The Illinois Pattern Jury Instructions (IPI) provide that when an affirmative defense, such as self-defense, is raised, the elements of that defense should be ...