People v. Bosek

• Decision Date: 18 March 1991
• Docket Number: No. 2-89-1151,2-89-1151
• Citation: 569 N.E.2d 551,210 Ill.App.3d 573
• Parties: , 155 Ill.Dec. 370 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Norman BOSEK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 551

569 N.E.2d 551

210 Ill.App.3d 573, 155 Ill.Dec. 370

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Norman BOSEK, Defendant-Appellant.

No. 2-89-1151.

Appellate Court of Illinois,

Second District.

March 18, 1991.

George P. Lynch (argued), George Patrick Lynch, Ltd., Chicago, for Norman Bosek.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, Marshall M. Stevens (argued), State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice WOODWARD delivered the opinion of the court:

Defendant, Norman Bosek, was charged in a four-count indictment with the offense of first degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1). Following a jury trial, defendant was found guilty of second degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-2). Defendant was sentenced to serve a term of six years' imprisonment in the Illinois Department of Corrections with a credit for time served. Defendant appeals, raising the following issues: (1) whether the jury was properly instructed on the presumption of innocence and burden of proof; (2) whether the defendant was proved guilty of second degree murder beyond a reasonable doubt; (3) whether the trial court erred in admitting evidence of uncharged crimes allegedly committed by the defendant against his family; (4) whether the trial court erred in failing to instruct the jury that it could consider evidence of the victim's violent and aggressive behavior; and (5) whether defendant's conviction was the result of his failure to receive competent and effective assistance of counsel. We affirm. A summary of the evidence at trial is set forth below.

For the State.

Brenda Cash testified that at approximately 12:10 p.m. on November 21, 1988, she arrived at Pratt Wayne Woods to meet a friend, Gary Smythe, for lunch. Smythe was already there, so she joined him in his car, a silver Thunderbird. She also noticed a brown or tan hatchback in the parking lot. The couple had talked for five or six minutes when the witness noticed that a blue car had pulled into the parking lot directly behind the tan hatchback. A man, later identified as the defendant, exited the blue car, with a gun in his hand, and stood in front of the driver's door. A woman, later identified as the defendant's wife, Janice Bosek, exited the passenger side of the tan hatchback and moved to the rear of the car. A man, later identified as the victim, Lucien Gilbert, exited the driver's side of the hatchback and also moved to the back of the hatchback. According to witness, Gilbert was dressed in a brown uniform.

The witness testified that the three individuals were standing one to two feet apart, the victim and Janice looking at the defendant. They were all angry and were arguing; defendant pointed a gun at the victim, who had nothing in his hands. The witness turned back to look at Gary, at his request, when she heard a pop sound, like a firecracker. She turned back to look and saw Janice grabbing the defendant's arm screaming for help. She then saw the defendant point the gun down. She could not see the victim at that time. She then heard two more pops. She estimated that 30 seconds elapsed between the first pop and the second two. Janice began to run towards the Smythe car yelling for help, at which point Gary began to back up his car so they could leave. As they left the parking lot, the witness observed the defendant running after Janice and also saw the victim face up on the ground, arms away from his body. She observed no weapon on the ground.

The witness testified further that, as Gary and she were reporting the shooting at the ranger's station, the blue car drove by. The witness told the ranger that the man driving the blue car had been involved in the shooting, and the ranger left to follow the blue car. Gary and she returned to the parking lot, where she observed Janice holding the victim's head and crying. The witness observed a rifle at the end of the victim's feet, perpendicular to the body.

On cross-examination, the witness denied seeing the victim lift the hatchback up and stated that she did not notice if it was up. She also admitted that she did not tell Gary that the defendant had a gun in his hand.

Gary Smythe testified that he arrived at the Pratt Wayne Woods at approximately 12:05 p.m. on November 21, 1988. A tan hatchback car was also in the parking lot. A man and a woman were seated very close together in the driver's seat. Smythe parked his car between 50 and 75 feet away from the tan hatchback. Smythe was joined by a friend, Brenda Cash, who sat in the passenger side of his car. A little while later, he heard a pop sound and noticed that the geese and ducks were flying away. He also observed that the time was 12:19 p.m. on his clock radio. Approximately 30 seconds later, he heard two more pop sounds and a woman screaming. He looked over his left shoulder and saw the victim lying on the ground. He also saw defendant standing about even with the head of the man lying face up on the ground. Defendant's right arm was pointed straight down, and his left arm was beckoning to Janice, who was about 20 feet from him walking back and forth. The witness saw no movement from the man on the ground. He also noticed a blue Lincoln automobile in the parking lot about 10 feet from the hatchback. Brenda and he reported the shooting as Brenda had testified, and then they returned to the parking lot. Brenda got in her car and left.

According to the witness, he went over to the hatchback and observed the victim, who had a rifle lying across his ankles, perpendicular to his feet. His feet were at the bumper of the car and his head away from the car. He did not observe the victim's arms because Janice was covering his body with hers.

On cross-examination, Smythe testified that he did not witness the shooting. Smythe also testified that the hatch of the hatchback was up. On redirect examination, Smythe testified that the blue Lincoln was about 10 to 15 feet back from the hatchback.

Kristian Johnson testified that on November 21, 1988, he arrived at Pratt Wayne Woods at approximately 12:20 p.m. As he pulled into the parking lot, he observed several vehicles, including a tan-colored Chevette hatchback and a silver Thunderbird. As he started to eat his lunch, he heard a cracking sound and noticed that all the geese flew into the air. He then looked to his left and saw the victim lying on his back and the defendant standing next to the victim, with a gun in his hand. The victim's feet were toward the rear of the Chevette, and his arms were at his side. He did not see a weapon either in the victim's hands or on the ground. The witness heard Janice, who was standing next to the Chevette, say, "I will go," or "I was going to go with you." The witness also observed a Lincoln Continental parked at an angle 10 to 15 feet behind the Chevette.

The witness testified further that after he heard the cracking sound, he started his car to leave the parking lot. As he was leaving the parking lot, he observed the defendant, who was standing a couple of feet away from the head of the victim, lower his arms, and he heard three or four more shots. He did not see any movement from the victim. Approximately 15 to 30 seconds elapsed from the time he heard the first cracking sound to the second set of shots. The witness then drove to the ranger station and reported the shooting. Two people in a silver Thunderbird arrived and made the same report. At that point, the blue Lincoln drove by, and the witness identified the driver for the ranger, who then pursued the Lincoln.

According to the witness, he then returned to the parking lot, where he observed Janice lying on the victim's body. He also observed a rifle lying across the victim's ankles, perpendicular to his body. The barrel of the rifle was pointing toward the victim's right side. The witness had not previously seen the rifle.

On cross-examination, Johnson admitted making a statement to the police that he could not be sure he saw a gun in defendant's hands but that common sense told him that something had made the gunshot wounds. However, he testified that he did see a weapon in the defendant's hand.

Leo Eugene Vessling, a fire fighter-paramedic for the St. Charles fire department, testified that at approximately 12:29 p.m. on November 21, 1988, he and three other fire fighters-paramedics were dispatched to the Pratt Wayne Forest Preserve in Wayne. When he first observed the victim, the victim's feet were near the rear of the car, and he was face up. There was a large gun lying across the victim's right leg with the gun butt to his right and the barrel to the left, approximately midway between the knee and the ankle. The witness observed two wounds to the chest. Cardiopulmonary resuscitation (CPR) was begun on the victim, as well as other emergency procedures, and the victim was transported to Delnor Hospital in St. Charles.

On cross-examination, Vessling testified that the victim was dressed in a tan uniform. He did note that the hatch on the car was up but did not look inside the car. In a report he gave, he stated that the victim's arms were to his sides, but he was not sure where his hands were.

Michael Panacchia, a Du Page County sheriff deputy, testified that on November 21, 1988, he took photographs of the victim at Delnor Hospital. He identified the victim's clothing, which consisted in part of a uniform, combat boots, and a holster.

James Slowinski, a Du Page County sheriff's deputy, testified that at approximately 12:30 p.m. on November 21, 1988, he was dispatched to Pratt Wayne Woods to investigate a shooting. Upon arriving on the scene, he observed the victim lying on his back; he appeared to have two bullet wounds in the chest near the heart area. Near the victim's feet was a small compact vehicle with the hatchback open. Inside the hatchback, the witness observed a semiautomatic rifle...