People v. Savickas

• Decision Date: 19 May 1992
• Docket Number: No. 1-90-1484,1-90-1484
• Citation: 230 Ill.App.3d 322,171 Ill.Dec. 713,594 N.E.2d 1233
• Parties: , 171 Ill.Dec. 713 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael D. SAVICKAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1233

594 N.E.2d 1233

230 Ill.App.3d 322, 171 Ill.Dec. 713

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael D. SAVICKAS, Defendant-Appellant.

No. 1-90-1484.

Appellate Court of Illinois, First District, Second Division.

May 19, 1992.

Jack O'Malley, State's Atty. (Renee Goldfarb, Linda Woloshin, of counsel), Chicago, for plaintiff-appellee.

Edward R. Vrdolyak, Ltd. (William E. Reynolds and Phillip J. Bartolementi, of counsel), Chicago, for defendant-appellant.

Justice DiVITO delivered the opinion of the court:

Defendant Michael D. Savickas was convicted by a jury of first degree murder (Ill.Rev.Stat.1985, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)) and was sentenced to 28 years' imprisonment.

On appeal, he contends that (1) he was not proved guilty of murder beyond a reasonable doubt; (2) the jury was improperly instructed as to the State's burden of proof; (3) comments made by the prosecutor denied him a fair trial; and (4) his right to confrontation was violated by the non-production of a subpoenaed defense witness.

On March 31, 1988, Robert Walensky owned and operated the New Gold Coast Inn, a tavern located at 71st and Maplewood in Chicago. At approximately 4 p.m. that day, Daniel Chaplics and James Pecelli, both employees of the City of Chicago Department of Streets and Sanitation, arrived at the tavern. They sat at the bar and had several screwdrivers. At around 4:45 p.m., Kevin Murray and David Stack, employees of the City of Chicago Water Department, arrived at the tavern and also sat at the bar, drinking beer.

At approximately 6 p.m., defendant and Casey Janus, both foremen with the Water Department, entered the tavern and sat at the bar. Murray and Stack each had known defendant for about 12 years; neither Chaplics nor Pecelli knew defendant, but Pecelli was introduced to him later that evening.

After sitting at the bar for a short time, Stack and Janus, who was Stack's immediate supervisor, began a loud, profane argument that Walensky tried to stop. Janus, who appeared to be drunk, refused to settle down, so Walensky grabbed him by the arm, attempting to escort him out of the tavern. Janus then turned to defendant and said, "Give me the gun. I'm going to shoot this motherfucker." Shortly thereafter, Walensky was able to push Janus out the front door and return to tending bar.

After a few minutes, defendant began arguing with Stack, asking him why he did not like his boss, Janus. Stack responded that what happened between Janus and him was not defendant's concern. Defendant then threatened that he could have Stack's job. Although Murray, Chaplics, Pecelli, and Walensky heard defendant arguing with Stack, they did not hear the entire substance of the argument; Chaplics, however, did hear defendant tell Stack that he could have Stack's job. Defendant then pulled out his gun and, pointing it at Stack's stomach, said, "I could blow you away right now." Stack pushed the gun away and asked defendant what he was doing. Chaplics, who saw defendant pointing the gun at Stack, told Walensky, who then came out from behind the bar and asked defendant to leave.

Defendant responded, "Okay. Fine. No problem." However, defendant turned to the bar and began arguing again. After Walensky told him to leave again, defendant began verbally abusing Walensky, telling him that he could close down the tavern and that he could "kick the shit" out of him. Walensky told defendant to get out yet another time; several of the other city workers, though, said that they could take care of defendant and asked that Walensky give him a beer. Walensky put a beer bottle down in front of defendant, but pulled it away again when defendant called him a "dirty motherfucker and a jag-off" and threatened, again, to shut down the tavern. Defendant also said that he was a member of the Chicago Outlaws, a motorcycle gang, and told Walensky, "I don't give a fuck about nothing." Although defendant wanted his beer back, Walensky refused to serve him and came around the bar and jerked defendant off his bar stool. At that time, defendant's gun fell to the floor. After defendant picked the gun up, Walensky walked him to the front door and pushed him out of the tavern.

After Walensky walked behind the bar, defendant began banging with the butt of his gun on the front window of the tavern. After banging several times, defendant walked away, but returned seconds later and resumed banging on the window with his gun. Walensky then grabbed a baseball bat which he kept behind the bar and ran out the front door, watching defendant walk south on Maplewood. Stack, Murray, Pecelli, and Chaplics stayed at the bar and did not go outside.

Thomas Vinicky, who occasionally cleaned and stocked the tavern for Walensky, however, got up from his bar stool where he was drinking a beer, telling Pecelli that, "I'm getting the hell out of here." Prior to leaving the bar through a side door, Vinicky, whom Walensky described as the "most passivistic" person, was not involved in any of the arguments at the bar, nor did he attempt to assist Walensky in expelling Janus or defendant from the bar.

As Walensky stood by the front door of the tavern, he could see defendant just beyond the side door, facing both him and Vinicky, who had exited the tavern through the side door. Vinicky, whose back was turned to Walensky, asked defendant, "What's the matter? Why are you doing all this?" Defendant, who was a few feet from Vinicky, then pulled out his gun and, as Vinicky was stepping backward, shot him in the chest. Walensky ran back into the bar, yelling that defendant had shot Vinicky and to call an ambulance. No one inside the tavern saw the shooting.

From behind the bar, Walensky grabbed a .32 revolver, and, accompanied by Chaplics, went out the side door to where Vinicky was lying. Walensky, Chaplics, and several other patrons of the tavern went over to Vinicky, who had no weapon in his hands or near him. Defendant then appeared from between two houses in the distance and began to walk towards the people gathered around Vinicky. Defendant still had his gun in his hand and was twirling it on his finger. Pecelli, who was also outside, yelled to Walensky to shoot defendant, but defendant continued to walk towards the tavern. When sirens could be heard, defendant abruptly turned and walked behind the alley of a funeral home.

After defendant went behind the funeral home, Edwin Gonzales, a 16-year-old from the neighborhood who had heard the gunshot and had seen defendant twirling his gun, saw defendant throw something on top of a roof. He also saw defendant try to stick something into the glass doors of the funeral home. As several police officers approached on foot, Gonzales saw defendant walk towards a truck, where he was apprehended by the police. Gonzales then told the police about the object on the roof.

Chicago police officer Harold Gordon was the first officer to arrive at the scene and, after calling an ambulance, took Pecelli with him in his squad car to look for defendant. Not finding him, Gordon let Pecelli out of the car; shortly thereafter, an older woman, who acted as the caretaker of the funeral home, shouted to Gordon that someone was hiding in the home's parking lot. Gordon conveyed this information by radio, entered the parking lot on foot, and, seeing defendant, ordered him to halt and then placed him under arrest.

Chicago police officer Robert Navigato, upon receiving Gordon's radio dispatch, entered the parking lot and saw defendant in the custody of Gordon. Navigato was told by Gonzales of the object on the roof and, after climbing to the roof, he recovered a snub-nosed .38 caliber revolver from the gutter. A search of the area also disclosed a spent cartridge and a live round near the passenger side of defendant's truck and another live round near the funeral home.

Chicago police detective Thomas Ptak, assigned to protect the scene of the crime, spoke with the officers present and examined the bullets found. The bullet found near the truck was a "hollow point," which would "mushroom" on impact, thereby creating extensive damage. The other bullet, found near the funeral home, was a ".38 Plus P." That bullet was also capable of inflicting extensive damage because it contained more powder and it had been manually serrated at its top, which would make it open up faster upon impact. According to Ptak, Chicago police officers were prohibited from carrying the Plus P bullets because those high-power bullets cause too much damage. Ptak also examined the gun; he found it to be a "pocket gun": the gun's cocking mechanism was shrouded which made it very concealable and prevented it from getting caught on clothing when pulled out of a pocket.

After Ptak secured the scene, he went to the hospital where Vinicky was taken and learned that Vinicky had died. In the pocket of Vinicky's pants, Ptak found Vinicky's keys and a small, closed pocket knife with a 2 1/2 inch blade. An autopsy disclosed that Vinicky had died from an extra-large bullet wound to the chest, inflicted by a high- power bullet. The autopsy also revealed that Vinicky was two times over the presumptive limit for intoxication.

When Ptak arrived at the police station, two evidence technicians were preparing to perform a gunshot residue test on defendant. In response to defendant's inquiry about what they were doing, Ptak explained that the evidence technicians were going to perform a test on his hands in order to determine whether he had earlier fired a gun. Defendant then began wiping his hands across his sweaty face and beard. When told that that would interfere with the test, defendant continued to rub his hands across his shirt and pants. Ptak and the two evidence technicians then grabbed defendant's arms and physically restrained him for the test, the results of which were inconclusive.

While in the interview room of the police station, Ptak advised defendant of...