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12/27/95 PEOPLE STATE ILLINOIS v. THOMAS MISCHKE

December 27, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
THOMAS MISCHKE, ANTHONY SERENAS, AND NOE TORRES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Michael Buckley Bolan, Judge Presiding.

As Corrected January 9, 1996.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., And Tully, J., Concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Following a bench trial, defendants, Thomas Mischke, Anthony Serenas, and Noe Torres, were found guilty of first-degree murder (720 ILCS 5/9-1(a)(2) (West 1992)). Serenas and Torres were convicted based on the accountability theory. Mischke was sentenced to 28 years' imprisonment, Serenas to 24 years' imprisonment, and Torres to 20 years' imprisonment. The three cases were consolidated on appeal.

Defendants assert that (1) the State failed to prove that they had the requisite intent for first-degree murder; (2) the trial court erroneously applied felony murder rules under the guise of misdemeanor murder; (3) the trial court erroneously applied the doctrine of transferred intent; (4) the trial court erroneously deprived them of the defense of accident or misadventure; (5) the trial court erroneously excluded state of mind evidence; (6) Mischke's conviction should be reduced to second-degree murder; and (7) the sentences should be reduced. In addition, defendants Serenas and Torres assert that the trial court (1) erred in applying the common design rule in finding them accountable for first-degree murder; (2) denied them the right to confrontation and due process by making inconsistent and erroneous rulings on severance and the admission of evidence; and (3) erroneously allowed the to be cross-examined regarding their failure to make certain statements to the police.

On December 29, 1991, at 2 a.m., there was a traffic altercation between the occupants of Mischke's black Mustang and Frank Dobson's automobile. Following the altercation, Mischke chased Dobson's vehicle, but lost sight of it. Mischke was driving, Serenas was in the front passenger seat, and Torres was in the back seat. Dobson returned to the apartment complex where Shannon Beckefeld lived which was at 4064 W. 115th Street in Chicago, while Mischke continued to look for Dobson's vehicle.

Eventually, defendants found Dobson's vehicle at the apartment complex, where another altercation occurred between defendants and Dobson and Beckefeld. It ended after Beckefeld hit Serenas with a rock and Mischke sped away.

At trial, Dobson testified that he ran inside to get help when defendants returned ten minutes later. When he came back outside, defendants were on top of Beckefeld beating her. After Dobson yelled for them to get off, Mischke pointed a black .22 caliber gun at Dobson's face. Mischke told Dobson to get on his knees, but Dobson refused. Instead, he backed up towards the apartment building and yelled that Mischke had a gun. Serenas had a pipe in his hand and Torres had a small club.

At that point, Robert Burke and John Dean, who had not been involved in the previous altercations, came out of the building. Beckefeld was still lying on the ground. Mischke pulled the trigger twice as he continued to point the gun at Dobson. Both times, the gun clicked but did not fire. Then, Mischke backed away toward the parking lot. Dobson did not hear anyone yell that the police were coming. As all three defendants ran toward the parking lot, he ran after them with a table leg in his hand.

Dobson saw the victim, Anthony Sciortino, come from between two parked cars. Mischke, still backing up, ran past Sciortino, who turned around and faced Mischke. He had nothing in his hands and was standing still. Dobson did not hear Sciortino say anything to Mischke. Nevertheless, Mischke turned and fired the gun twice at Sciortino. The first time, the gun clicked, but the second time it fired. Mischke fled and Sciortino walked 25 feet, then dropped to the ground. At the time of the shooting, Serenas and Torres were in the parking lot 30 feet away.

Beckefeld testified that defendants confronted her in front of her apartment building when they returned after the second altercation. Mischke pointed a gun at her and said, "Turn around Bitch." He pulled the trigger, which clicked, then ordered her to walk up the hill while he held the gun in her back.

As they went up the hill, they were flanked by Serenas, who had a pipe, and Torres, who had something shiny in his hand. Dobson came out of the building just as Mischke kicked her and knocked her to the ground. Serenas beat her on the back with the pipe and Torres kicked her. After the beating, Beckefeld stayed on the ground because she was scared. As a result, she could hear, but not see, what was happening.

She heard Mischke order Dobson onto his knees, then heard someone yell from the building that the cops were coming. Defendants ran and Beckefeld heard Mischke yell to Sciortino to get on the ground and that he was going to blow his brains out.

John Dean testified that he and Robert Burke were in Beckefeld's apartment when Dobson and Beckefeld came into the apartment and left again. Dean and Burke followed them outside, where Dean saw Beckefeld on the grass a short distance from the building's entrance. Torres knocked Beckefeld down and kicked her two or three times while Mischke pointed a gun at Dobson. He pulled the trigger, but the gun did not fire. As Mischke flaunted the gun, waving it around, Serenas came over to talk to Dean and Burke. There was a lot of commotion and everyone was pushing and shoving each other. Dean did not hear anyone yell that the police had been called.

When Mischke was backing away toward the parking lot, Dean did not see Serenas and Torres. Sciortino walked past Mischke, then stopped and turned around. Mischke pointed the gun at Sciortino, who put up both hands. Even though Sciortino did not threaten Mischke, Mischke pulled the trigger three times. The third time, the gun went off and Sciortino was shot.

Robert Burke's testimony was similar to Dean's. In addition, he stated that Sciortino yelled to Mischke, "Don't ever point a gun at me," before Mischke pulled the trigger three times. Although Sciortino never ran up to ...


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