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09/11/87 the People of the State of v. Mile Gvojic

September 11, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MILE GVOJIC, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

513 N.E.2d 1083, 160 Ill. App. 3d 1065, 112 Ill. Dec. 474 1987.IL.1324

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

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

After a bench trial, defendant, Mile Gvojic, was convicted of attempted murder and aggravated battery. Subsequently, he was sentenced to a term of eight years' incarceration. In this appeal, defendant asserts that the evidence presented by the State failed to prove his guilt beyond a reasonable doubt, that his conviction for aggravated battery based on the use of a deadly weapon was legally inconsistent with the trial court's finding that the knife allegedly used was not a "dangerous weapon" and that aggravated battery is a lesser included offense of attempted murder when based on the same act and his conviction for both offenses was improper.

Complainant, James Essary, testified that at 4:10 a.m. on January 22, 1981, he was off duty from his position as a patrolman for Calumet City, Illinois, at the time that he and his brother, Keith Essary, left a tavern located in Burnham, Illinois. As the Essarys were leaving the tavern, defendant and his companion, Russell Jehze, were being refused admission into the tavern by two bouncers who stood at the door with John Smierciak, a free-lance photographer who took photographs at the tavern. Complainant told defendant and Jehze, "You might as well go. They are not going to let you in." Jehze spat on complainant and raised his fist at him. Complainant then pushed Jehze and held him against a wall until Jehze agreed that the altercation had terminated. Complainant and Keith then left to go to complainant's car in the parking lot, but Jehze then became involved in an altercation with Keith. Complainant pulled Keith away from Jehze. Complainant and Keith proceeded to walk in different directions to the complainant's vehicle.

After the complainant had entered his automobile and started the engine, defendant approached the driver's side of the car and stated that he wanted to talk to complainant. When complainant lowered his window, defendant "cursed," "yelled," then reached into the vehicle and struck complainant, who attempted to close his window, open the door and exit the car. During the ensuing struggle at the door, defendant repeatedly stabbed complainant with a knife until the blade broke in complainant's skull. John Smierciak arrived and struggled with defendant over the knife while complainant lay on the car. Defendant fled from the scene and Smierciak assisted complainant, who had been stabbed on his hand, chest, collar bone, head, lungs and throat. Complainant was hospitalized for 10 days, during which time the broken blade was removed from his skull.

John Smierciak testified that in the early morning on January 22, 1981, he and "Bill-the-bouncer" were in the vestibule of a tavern. Defendant and Russell Jehze "banged" on the glass door and the bouncer told them that the tavern was closed. Complainant and his brother, Keith Essary, then left the tavern and had a confrontation with defendant and Jehze. When complainant and Keith walked away, Jehze spat on Keith, who then turned and fought Jehze. Complainant restrained Keith and the two brothers proceeded from the scene. Jehze was unconscious and bled profusely while attended to by defendant. After Jehze had been revived, defendant walked towards complainant's car and wrestled with complainant, who sat in the car. When Smierciak arrived at the vehicle, the combatants were outside the car. Complainant, who was in a "daze," was "covered with blood" and a piece of the broken knife blade embedded in his skull, told Smierciak to disarm defendant. Smierciak wrenched the knife from defendant, who fled from the parking lot. Smierciak then administered to complainant's bleeding throat and chest. Keith Essary arrived, removed a gun from complainant's pants and ran in the same direction in which the defendant had fled. Subsequently, police officers arrived.

Officer John W. Daley testified that in the early morning on January 22, 1981, he was on patrol in his squad car when he received a radio call of an "unconscious person" at a tavern on 141st and Croissant Streets. When he arrived there, Russell Jehze had a head injury but refused assistance. Complainant, who was acquainted with Officer Daley, then called him and the officer observed John Smierciak attempt to separate complainant and defendant, who were wrestling in the parking lot. Officer Daley rushed to the fight scene, where defendant had "pinned" complainant to a car. Complainant, who was bleeding profusely from the head and neck, stated that defendant had stabbed him. Smierciak attempted to hold defendant, who fled when Officer Daley attempted to take defendant into custody. Officer Daley pursued the defendant, apprehended him, and escorted him back to where complainant and Smierciak were. On their return, Keith Essary, who was distraught, fired a gun at defendant.

It was stipulated that Dr. Kaufman from St. Margaret's Hospital would testify that the tip of the knife removed from complainant's skull was given to the police department and that Cynthia Seeberg, who worked at the crime laboratory, would testify that the tip of the blade matched the broken knife seized from defendant. Also, Michael Boyle, an assistant State's Attorney, testified that the weapon recovered from defendant was a broken buck knife and that when the pieces were joined the blade was 3 1/8 inches long.

Defendant testified that at 4 a.m. on January 22, 1981, he and Russell Jehze went to a tavern where they were to meet friends, but the bouncer refused to admit them. The bouncer struck Jehze on the head with a flashlight and three other men helped the bouncer "knock" Jehze against a wall. When complainant attempted to strike Jehze, defendant interceded and "someone" struck defendant's head. Defendant then fell and when he attempted to stand, Keith Essary kicked defendant's head and ribs. Defendant denied that he had known Keith prior to the incident. Defendant stated that Keith or complainant had spat on Jehze and that the latter retaliated in kind. Jehze collapsed to the ground as he bled from his mouth. When defendant tried to revive Jehze, someone cut defendant's finger with a knife. Defendant fled to the parking lot to escape his assailants, but "someone" "pinned" defendant to a car. Complainant and two other men beat defendant with "something that felt like a gun." Defendant ran when Officer Daley arrived and did not stop until he fell on ice and injured his head. The police officer then apprehended defendant and returned him to the parking lot. Keith Essary then fired a gun at them. Officer Daley then seized Keith and reprimanded him.

Defendant was transported to a hospital and questioned by police officers. Defendant denied that he saw Russell Jehze spit on complainant, that he had a knife, or that he had attempted to kill complainant.

DeWayne Nelson Fields testified that on January 22, 1981, he and Diana Hastings waited at a tavern where they were to meet defendant and Russell Jehze. The bouncer first conversed with defendant and Jehze, and then pushed Jehze and struck him with a flashlight. Complainant and Keith Essary left the tavern during the confrontation between defendant, Jehze and the bouncer. The next ...


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