Appeal from the Circuit Court of Cook County. The Honorable Michael P. Toomin, Judge Presiding.
Released for Publication August 25, 1994. Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Egan
PRESIDING JUSTICE EGAN delivered the opinion of the court:
After a bench trial, the defendant, Kol Balaj, was convicted of first degree murder and sentenced to the Illinois Department of Corrections for 30 years. He first contends that he was not proved guilty beyond a reasonable doubt.
On March 29, 1987, Balaj, who is also named Skendor Krasnque, shot and killed off-duty Cook County Deputy Sheriff Branislaw Neskovic, who was known as Bronco. The shooting occurred at approximately 11 p.m. at the Kragujevac Restaurant in Chicago.
Hasan Advich testified that he and his wife met Enis and Enisa Cirkic at the restaurant. They sat at a table in the main room. Advich did not see the beginning of the fight between Bronco and Balaj; he first saw them pushing each other in the hallway leading from the back of the restaurant to Lincoln Avenue. Then Bronco came out of the hallway into the main room holding one of his hands. Blood was dripping from Bronco's hands.
Balaj followed Bronco out of the hallway and into the restaurant; Balaj had a silver gun in his hands and said something in a language Advich could not understand. When Balaj spoke, Bronco turned to face Balaj and stood still while holding his hands up and away from his body. "The next thing, [Balaj], he points the gun straight to the chest, and he turned it down, sort of shaking the hand, then fired at Bronco." The cause of Bronco's death was a gunshot wound to the abdomen. After firing once at Bronco, Balaj picked up his jacket from a nearby table and "just walked out."
Enis and Enisa Cirkic saw Bronco follow Balaj into the hall; the men fought in the hallway. Then, Bronco walked into the main room holding his bleeding hands away from his body. Bronco "was walking very slowly" and Enis and Enisa heard him say, "Call the police." Next, Balaj walked into the main room holding a gun. Balaj said, "Don't move, nobody," and then spoke in a different language. When Balaj spoke, Enis saw Bronco turn to face Balaj and take several slow steps backwards away from Balaj. Bronco never moved his hands from the front of his body. After Bronco turned, Balaj walked toward Bronco and pointed the gun at Bronco's chest. Enis testified:
"[Balaj] came close to five, six feet in front [of] Bronco, and he was holding the gun in his chest, you know, and * * * he pulled the gun--pulled the trigger. He moved the gun down and he turned his head a little bit to the left side, and he pulled the trigger."
Mirjana Zagoroe, a waitress at the restaurant, testified that she had seen Bronco both drunk and sober, had observed him in arguments and was required to obtain the restaurant owner's permission before serving Bronco alcohol. Earlier in the evening on March 29, Zagoroe served Bronco cognac. The parties stipulated that at the time of his death Bronco's blood-alcohol level was .257.
Zagoroe saw Bronco walk toward Balaj's table and saw them "arguing or something." Zagoroe told the owner to call the police because she "was afraid" the men would fight. She explained that Bronco was Serbian while Balaj was Albanian; Albanians and Serbians "don't like each other." While she was asking the owner to call the police, Zagoroe saw Bronco running inside the main room holding his hands up and in front of his body. She ducked behind the bar until she heard one shot. After the shot, she looked over the bar and saw Balaj take his jacket and leave the restaurant.
Damjan Betinski testified on behalf of the defendant that he sawBronco "grab" Balaj's throat in the hallway. Bronco then left the hallway holding his hand, which was "a little bit like bleeding." Balaj followed Bronco into the main room "and he was pointing the gun in Bronco here about, and he was just, you know, the gun went down shaking his hands and he put the gun down and he shot the gun." Betinski admitted that he left the restaurant before the police arrived and never told the police what he had witnessed.
Another defense witness, Salih Mujezinovic, testified he was sitting with Balaj when Bronco approached their table and grabbed Balaj by the arm. Balaj and Bronco went into the hallway, where Bronco "took a gun" and told Balaj, "I shoot you." Bronco came out of the hallway holding one of his hands, which was bleeding. Balaj followed Bronco, and Bronco told Balaj in Yugoslavian "I f--- you, I'll burn your mother" and "I'll f--- your mother in Albania." Next, Mujezinovic "just saw a gun shaking and go down and shoot." Mujezinovic admitted that he did not wait to tell the police what he witnessed but explained that the police took him to the station later. He had pleaded guilty to possession of cocaine with intent to deliver in 1984.
Detective Johnson testified that, while Mujezinovic cooperated fully in helping the police find Balaj, he did not tell them Bronco grabbed Balaj's shoulder, did not mention any swearing or racial slurs by Bronco, did not explain that Bronco pulled a gun on Balaj in ...