Opinion
1-20-0717
09-30-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RASHID MUJKOVIC, Defendant-Appellant.
Attorneys for Appellant: Kathleen T. Zellner and Douglas H. Johnson, of Kathleen T. Zellner & Associates, of Warrenville, for appellant. Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Hareena Meghani-Wakely, and Jessica R. Ball, Assistant State's Attorneys, of counsel), for the People.
Appeal from the Circuit Court of Cook County. No. 16 CR 15404 Honorable James B. Linn, Judge Presiding.
Attorneys for Appellant: Kathleen T. Zellner and Douglas H. Johnson, of Kathleen T. Zellner & Associates, of Warrenville, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Hareena Meghani-Wakely, and Jessica R. Ball, Assistant State's Attorneys, of counsel), for the People.
JUSTICE MITCHELL delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
OPINION
MITCHELL JUSTICE
¶ 1 Defendant Rashid Mujkovic was charged by information with attempted armed robbery and first degree murder. Mujkovic shot the victim in the head at point-blank range, killing him. Following a bench trial, the trial court found Mujkovic guilty of first degree murder but acquitted him of armed robbery. The trial court sentenced him to 85 years' imprisonment. Mujkovic raises the following two issues on appeal: (1) did the trial court abuse its discretion by admitting evidence of Mujkovic's involvement in two prior shootings, which occurred in the hours leading up to the murder, as other acts evidence under Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011), and (2) was the evidence sufficient to prove defendant's intent to commit first degree murder beyond a reasonable doubt?
A jury convicted Mujkovic's codefendant, Florin Mulosmani, of first degree murder, and we affirmed. People v. Mulosmani, 2022 IL App (1st) 200635, ¶ 1.
For the reasons stated below, we affirm.
¶ 2 I.
¶ 3 Following a night of drinking and mayhem, Mujkovic and Florin Mulosmani pulled into a gas station located on West Montrose Avenue on the northwest side of Chicago. They arrived just after 5 a.m. on the morning of May 28, 2016, and they were accompanied by Mulosmani's girlfriend, Tisa Rodriguez, and her friend, Amanda Duran, who waited in Rodriguez's car while the two men went inside to purchase drinks, cigarettes, and aspirin. Mateusz Handley and Damien Cionzynski entered the gas station about one minute after Mujkovic and Mulosmani, having walked from Cionzynski's nearby apartment after an evening together at a bar. As Handley and Cionzynski spoke with the cashier, Mulosmani approached them in the narrow aisle along the front of the counter. Handley, believing that he might have recognized Mulosmani, shook Mulosmani's hand and smiled at him.
¶ 4 Mulosmani then asked Handley for money and cigarettes, and when Handley declined, he smiled and gestured toward Mujkovic, who was standing behind Mulosmani with his right hand grabbing the handle of the pistol tucked into his waistband. Handley observed that Mujkovic was armed and stepped around Cionzynski, who, unaware of increasingly tense nature of the conversation, stepped toward the cashier to purchase cigarettes. Mulosmani, now directly next to Handley, continued to badger him and pointed to Mujkovic, who again brandished his pistol. When Handley still did not oblige, stating that he did not have anything to give, Mulosmani frisked Handley's pockets. Handley slapped Mulosmani's hand and told him to get his hands off him, threatening, "Or I'll beat your ass." Mulosmani, in response, punched Handley, who stepped backward with his hands raised. Cionzynski, now alert to the threat, turned from the cashier to face Mulosmani, who proceeded to punch him seconds later while his hands were behind him in his back pockets. As Cionzynski lunged back at Mulosmani, with one hand grabbing Mulosmani's wrist and the other outstretched toward Mulosmani's chest, Mujkovic pulled the gun from his waistband and shot once, fatally striking Cionzynski in the head.
¶ 5 After Cionzynski collapsed on the floor, Mujkovic and Mulosmani ran to the car where Duran and Rodriguez were waiting inside. Having heard the gunshot, Duran had started a video recording on her cellphone, which captured audio of Mujkovic yelling at Mulosmani, the driver, to "get me the fuck out of here." As Mulosmani drove, Mujkovic then told him, "Let's take them to the woods," which Rodriguez believed to mean that Mujkovic intended to kill her and Duran. Instead, they picked up Rodriguez's sister and went to Rodriguez's apartment in Berwyn, where Mulosmani told Rodriguez to prepare to leave town. While Rodriguez and Mulosmani were in her bedroom, Mulosmani told her that Mujkovic intended to kill Duran and that he would kill her, too, if she did not stop crying. Mujkovic then joined them in the bedroom and said, "We need to do this now." While Mujkovic, Mulosmani, and Rodriguez were in the bedroom, however, Duran called a ride and fled Rodriguez's apartment because she felt uncomfortable.
¶ 6 After a search of the neighborhood for Duran was unsuccessful, Mujkovic, Mulosmani, and Rodriguez drove to Mujkovic's apartment in Wrigleyville. Once inside, Mujkovic and Mulosmani recounted the shooting at the gas station and made plans to abscond. Mujkovic bragged about his "good aim," and Mulosmani said he saw Cionzynski's "soul leave his body." Mujkovic also said that would wait until he had more money before leaving town and advised Rodriguez to burn her car. As Mujkovic was cleaning the gun, another man, Mujkovic's friend Caleb, arrived at his apartment. Mujkovic gave the gun to Caleb and told him to dispose of the ammunition before leaving. The group dispersed later that morning, with Mulosmani and Rodriguez returning to Rodriguez's apartment.
¶ 7 Following a police investigation, Mujkovic was arrested in September 2016 and charged with the attempted armed robbery of Handley (720 ILCS 5/8-4, 18-2(a)(2) (West 2016)) and with the first degree murder of Cionzynski (id. § 9-1(a)(1)). Before trial, the State gave notice of its intentions to admit evidence of two other shooting incidents involving Mujkovic, which occurred in the hours before the shooting at the gas station. Ill. R. Evid. 404(c) (eff. Jan. 1, 2011). Over Mujkovic's objections, the trial court heard testimony from Rodriguez and Duran about those shootings. The trial court also viewed the surveillance videos of Cionzynski's shooting recorded by the gas station's security cameras. Those videos, which did not contain sound, were complemented by the testimonies of Handley, Sayed Ali (the cashier at the gas station), and Mujkovic, who all offered their respective accounts of the events immediately preceding Cionzynski's shooting. Mujkovic, in his testimony, claimed that he shot Cionzynski in self-defense, believing that Cionzynski was armed when he lunged at Mulosmani.
¶ 8 The trial court acquitted Mujkovic of attempted armed robbery but found him guilty of first degree murder. The trial court also found that Mujkovic personally discharged a firearm causing Cionzynski's death. In support of the findings, the trial court reasoned that "the evidence about the robbery or attempted robbery [was] a little bit vague," but the shooting was "wholly unjustified" and, thus, "there was absolutely no self-defense." Mujkovic filed a motion for a new trial, which the trial court denied, reasoning that the evidence "overwhelmingly showed" that he "demonstrated feelings of guilt rather than of self-defense" and that "Mulosmani is the one that started the encounter." The trial court sentenced Mujkovic to 85 years in prison-60 years in prison for murder and 25 years for personally discharging a firearm-and this timely appeal followed. Ill. S.Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Mar. 12, 2021).
¶ 9 II.
¶ 10 A. Other-Acts Evidence
¶ 11 Mujkovic argues that the trial court erred in admitting evidence of his involvement with two prior shootings. He contends that the trial court considered that other-acts evidence for the forbidden purpose of establishing his propensity to commit crime. The State contends that the trial court properly considered the evidence of the prior shootings as part of a continuous narrative, as well as to show knowledge, absence of mistake, and intent. It is within the sound discretion of the trial court to determine whether other-acts evidence is relevant to a material issue and whether its probative value is substantially outweighed by its prejudicial effect. People v. Sims, 2019 IL App (3d) 170417, ¶ 29; People v. Hale, 2012 IL App (1st) 103537, ¶ 24. A trial court has no discretion to admit other-acts evidence to prove propensity (save several statutory exceptions that have no application here). See People v. Wilson, 214 Ill.2d 127, 135 (2005) ("This court has repeatedly held that evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant's propensity to commit crimes." (Emphasis added.)).
¶ 12 Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011) prohibits the use of other bad acts and crimes to prove a defendant's propensity to commit a crime and that he acted in accordance with that propensity on a particular occasion:
The rule then, by its own terms, is exclusionary. It represents a policy choice to exclude evidence that may be logically relevant but presents too great a risk of inviting a factfinder to decide the case on an erroneous basis. In a criminal case, the rule operates to preclude the prosecution from introducing other acts by the defendant to show that he has a criminal propensity and therefore is probably guilty of the crime charged. People v. Littleton, 2014 IL App (1st) 121950, ¶ 35. "The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." Michelson v. United States, 335 U.S. 469, 476 (1948)."Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith except as provided by sections 115-7.3, 115-7.4, and 115-20 of the Code of Criminal Procedure ***."
¶ 13 Rule 404(b), however, is not a rule of categorical exclusion, and therein lies the practical difficulties that trial courts must regularly confront. Other-acts evidence, while typically inadmissible to prove propensity, may nonetheless still be admissible to prove some other point material to the controversy:
excluded under Rule 403 if its prejudicial effect substantially outweighs its probative value. Ill. R. Evid. 403 (eff. Jan. 1, 2011)."Such evidence may also be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). It is not enough for the proponent of such evidence to mechanically invoke a litany of the permissible "other purposes." See People v. Illgen, 145 Ill.2d 353, 370 (1991). The permissible other purpose must be a material issue in the case (see Ill. R. Evid. 401 (eff. Jan. 1, 2011)), and the other-acts evidence must be relevant to establishing that purpose without relying on the propensity inference. E.g. People v. Clark, 2015 IL App (1st) 131678, ¶ 59 (argument that other-acts evidence was relevant to proving identity "must fail because it relies upon a propensity inference"); see also 1 Kenneth S. Broun et al, McCormick on Evidence § 190, at 809-10 (4th ed. 1992) ("[T]he connection between the evidence and the permissible purpose should be clear, and the issue on which the other crimes evidence is said to bear should be the subject of a genuine controversy."). And, like all evidence, other-acts evidence offered for a permissible purpose may nonetheless be
¶ 14 Here, the other-acts evidence consisted of testimony about our defendant Mujkovic firing a gun on two occasions in the predawn hours before the murder. In the first instance, he shot from his car at a group of people in Oak Park, hitting one person. In the second instance, less than one hour before the murder, he fired the gun out the car window into the air while a passenger in the back seat. The forbidden propensity inference attaching to this other-acts evidence is that Mujkovic is a person of bad character, and he acted in conformity with that low character when he committed the murder charged in this case. For this purpose, the other-acts evidence is inadmissible.
¶ 15 Was the other-acts evidence admissible for a proper purpose? Undoubtedly, the answer is "Yes." Mujkovic took the stand and interposed a claim of self-defense:
"[DEFENSE COUNSEL]: Let's back up a little bit, Rashid. When you fired the gun at that young man that morning, did you believe in your heart that you were about to be hurt or killed?
[MUJKOVIC]: Yes, sir.
[DEFENSE COUNSEL]: Is that why you shot the gun?
[MUJKOVIC]: Of course. Yes, sir.
* * *
[MUJKOVIC]: I feared for my life. I thought this man was going to kill us so at the time I had no time to think. Everything happened so fast."
¶ 16 A claim of self-defense puts a defendant's intent directly in issue. See, e.g., People v. Charles, 238 Ill.App.3d 752, 762 (1992) (claiming self-defense made intent "the critical issue" of the case (internal quotation marks omitted)). Intent is among the permissible purposes for admitting other-acts evidence. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). But most importantly, the inferential chain supporting admissibility for establishing intent does not rely on the forbidden propensity.
¶ 17 Other-acts evidence can be relevant to establishing a defendant's intent because it tends to negate inadvertence, accident, self-defense, or other forms of innocent intent. As Justice Joseph Gordon explained for this court a generation ago, "While an innocent state of mind might be present in one instance, the more often it occurs with similar results, the less likely that it was without criminal intent to kill with legal justification." Charles, 238 Ill.App.3d at 762 (earlier shooting properly admitted on issue of intent where defendant claimed later shooting was in self-defense). While a single instance of a lawful shooting in self-defense may be occasioned by a person's reasonable belief "that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force" (720 ILCS 5/7-1(a) (West 2016)), evidence of two prior unlawful shootings just hours earlier by the same person with the same gun makes the claim of an innocent intent less likely. It is the improbability of the act being repeated by chance with an innocent mind that carries probative value on the question of intent, and that is a chain of reasoning independent of the forbidden propensity. See Charles, 238 Ill.App.3d at 762 (citing 2 John H. Wigmore, Evidence in Trials at Common Law § 302, at 245 (Chadbourn rev. ed. 1979) ("[T]he recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state***.")) (hereinafter Wigmore on Evidence); see also 1 Kenneth S. Broun et al, McCormick on Evidence § 190.4 (8th ed. 2020) (recognizing" 'improbability' logic" as reasoning free from propensity); accord 22B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 5250 (2d ed. 2022) ("Wigmore used the 'theory of probabilities' to justify relevance.").
¶ 18 Contrary to Mujkovic's claims, the trial court did nothing improper with this other-acts evidence. The trial court recounted the facts that constituted the other-acts evidence as testified to by Rodriguez and Duran, and then connected it with Mujkovic's intent:
"[THE COURT]: *** I do know that they were out on the street that night with a gun which obviously was loaded and they knew it was loaded and operable because it had already been fired. They're screwing around harassing people. The desire by Mr. Mujkovic in particular to shoot the gun and cause havoc and damage.
* * *
[THE COURT]: [T]he deceased throws a punch and [Mujkovic] responds by shooting him in the head at point blank range. There is nothing about this case that indicates to this Court that he was acting in any kind of self defense towards himself or others."
Thus, the trial court considered the other-acts evidence on the issue of intent and expressly found that it negated the claim of self-defense. This is textbook use of other-acts evidence to prove intent. See, e.g., People v. McCarthy, 132 Ill.2d 331, 344 (1989) (evidence of previous assaults admitted to negate claim of acting under sudden passion); People v. Young, 381 Ill.App.3d 595, 601 (2008) (evidence of other stabbings admitted to rebut defendant's claim of accident); Charles, 238 Ill.App.3d at 762-63; People v. Tucker, 176 Ill.App.3d 209, 222 (1988) (evidence of defendant aggressively brandishing a gun hours earlier admitted to rebut a claim defendant shot the gun in self-defense).
¶ 19 Mujkovic argues that the other shootings were unrelated and not sufficiently similar to the murder to be admitted as other-acts evidence. To be sure, other-acts evidence must possess "some threshold similarity to the crime charged." (Internal quotation marks omitted.) People v. Bedoya, 325 Ill.App.3d 926, 938 (2001). Time and place proximity alone are not enough. Charles, 238 Ill.App.3d at 762 (citing People v. Lindgren, 79 Ill.2d 129, 139 (1980)). The degree of the similarity required depends in part on the purpose for which its offered (Bedoya, 325 Ill.App.3d at 938), and when offered to prove criminal intent, the similarity required is less.
"[T]he same degree of identity of the two offenses is not necessary when evidence of defendant's involvement in another offense is not offered to prove the commission of the crime charged, but is offered to prove the absence of an innocent frame of mind or the presence of criminal intent. In such a case, mere general areas of similarity will suffice. If these general similarities are shown, evidence of the defendant's involvement is another offense may be shown to establish the necessary criminal intent of the defendant in the offense charged." People v. McKibbins, 96 Ill.2d 176, 185-86 (1983) (citing 2 Wigmore on Evidence §§ 302, 304, at 241-47, 249-51).
¶ 20 In Bedoya, the appellate court held that other-acts evidence (a defendant shooting at three different buildings) was irrelevant to prove an intent to murder in a case where a defendant claimed self-defense. Bedoya, 325 Ill.App.3d at 939. The Bedoya court also held that the probative value of the evidence was substantially outweighed by its prejudicial effect because the other-acts evidence was cumulative and required a trial within a trial to establish who shot at the three buildings. Id. at 940-41. The critical concern underpinning the Bedoya holding on each of these points was the very real risk of confusing and prejudicing the jury by inviting them to decide the case based on the other acts. See id. at 941. That was a nonissue here. Mujkovic waived his right to a jury trial and proceeded to a bench trial. A trial judge is presumed to consider evidence only for the limited and proper purpose it serves. Littleton, 2014 IL App (1st) 121950, ¶ 35. Further, the other-acts evidence came in through limited testimony from two witnesses (Rodriguez and Duran), and the evidence received only a passing reference in the State's closing argument. Finally, the trial court expressly acknowledged the risks inherent in other-acts evidence and weighed that risk of prejudice against the probative value of the evidence. Against this backdrop, admitting the other-acts evidence was within the trial court's discretion.
¶ 21 Mujkovic raises a series of additional arguments of no moment. First, he claims the trial court erred in admitting the evidence of the Oak Park shooting in the State's case-in-chief after having sustained a defense objection to the evidence in limine. But defense counsel in his cross-examination of Rodriguez elicited testimony from the witness about the Oak Park shooting. He opened the door to the testimony. Even then the trial court stated he would only consider the evidence for the limited purpose of establishing something largely irrelevant-Rodriguez's knowledge and state of mind (proof of nothing relative to Mujkovic). But none of that matters: Mujkovic ultimately testified, and that prompted the trial court to revisit the use of the evidence. There is nothing unfair about revisiting or even reconsidering an in limine ruling in light of how the evidence unfolds at trial. See People v. Zimmerman, 2018 IL App (4th) 170695, ¶¶ 145-47 (a trial court always has authority to revisit rulings in limine). Rare is the trial where this does not happen. Further, Mujkovic chose a bench trial while his codefendant Mulosmani chose a jury trial, so the order of some proof may have been slightly disjointed (without objection).
¶ 22 Second, Mujkovic complains about the alternative bases urged by the State for admitting the other-acts evidence: continuing narrative, knowledge, and absence of mistake. Frequently, other-acts evidence is admissible on more than one theory. See, e.g., People v. Banks, 161 Ill.2d 119, 138 (1994) (in murder prosecution, evidence of severe abuse perpetrated by defendant on two children was admissible to show motive, intent, and absence of mistake). As we have cautioned, the admission of other-acts evidence should not be done mechanically. To the extent this shotgun approach suggests an absence of hard thought about a legitimate use of this type of evidence, it will not fare well with a trial judge engaging in a principled exercise of discretion. Because the trial court clearly used the other-acts evidence to rebut the claim of self-defense, we see no reason to consider other potentially proper but hypothetical uses of this evidence.
¶ 23 Finally, even if it was error to admit the other-acts evidence, any such error on this trial record would be harmless. See People v. Adkins, 239 Ill.2d 1, 23, 33-34 (2010) (citing People v. Hall, 194 Ill.2d 305, 339 (2000)). The gas station's security cameras captured the shooting from several different angles, and two other witnesses, Handley and Ali, provided firsthand accounts of the shooting that were inconsistent with Mujkovic's theory of self-defense. The trial court found Rodriguez and Duran to be particularly credible witnesses who were able to testify to the Mujkovic's statements immediately before and after the murder. Here, the evidence of Mujkovic's guilt was overwhelming.
¶ 24 B. Sufficiency of the Evidence
¶ 25 Mujkovic next contends that the State failed to prove him guilty beyond a reasonable doubt. When the sufficiency of trial evidence is at issue, we must determine whether, taking the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Jackson, 2020 IL 124112, ¶ 64.
¶ 26 Once a defendant affirmatively raises self-defense, the burden shifts to the State to prove, in addition to the elements of first degree murder, that the use of force was not justified beyond a reasonable doubt. People v. Castellano, 2015 IL App (1st) 133874, ¶ 149. If the State negates the defendant's self-defense claim, the trier of fact must then find the defendant guilty of either first degree or second degree murder. People v. Jeffries, 164 Ill.2d 104, 127-28 (1995). To be guilty of second degree murder based on an unreasonable belief in self-defense, the defendant must prove by preponderance of the evidence that all of the first five elements of self-defense existed, which are as follows: (1) force is threatened against the person, (2) the person threatened is not the aggressor, (3) the danger of harm was imminent, (4) the threatened force was unlawful, and (5) the defendant actually and subjectively believed a danger existed that required the use of force applied. 720 ILCS 5/9-2(c) (West 2016); Castellano, 2015 IL App (1st) 133874, ¶¶ 149, 153.
¶ 27 Mujkovic argues that his conviction is inconsistent with his testimony, with the trial court's finding that he and Cionzynski had "a very chance random conflict," and with the State's theory that the shooting followed from an attempted armed robbery, a charge of which he was acquitted. Mujkovic contends that if the State's evidence was sufficient to prove any level of criminal intent, it would be of his unreasonable belief in the need to shoot Cionzynski in self-defense.
¶ 28 But the State's evidence showed that Mujkovic's codefendant, Mulosmani, escalated the altercation by attempting to reach into Handley's pockets and then punching both Handley and Cionzynski. Mujkovic testified that he did not brandish his gun to intimidate Handley and that Handley was the aggressor, but the trial court was not required to accept defendant's version of events. See Castellano, 2015 IL App (1st) 133874, ¶ 145 ("A trial court's decision to believe one witness's account of an attack over another 'is virtually unassailable on appeal.' "). Defendant also testified that he believed that Cionzynski was reaching for a weapon when he pushed Mulosmani, yet the videos of the incident showed that both of Cionzynski's hands were outstretched and visible when defendant shot him. The trial judge is not required to accept any possible explanation compatible with the defendant's innocence to find a reasonable doubt, and the reviewing court will not substitute its judgment for that of the trier of fact simply because the evidence is conflicting. People v. Siguenza-Brito, 235 Ill.2d 213, 224-25, 228 (2009).
¶ 29 Moreover, the trial court found Rodriguez and Duran, who testified about defendant's conduct before and after he shot Cionzynski, "to be compelling witnesses," and we do not retry a defendant or substitute our judgment for that of the trier of fact regarding witness credibility or the weight of evidence. Jackson, 2020 IL 124112, ¶ 64. In a bench trial, "it is for the trial judge, sitting as the trier of fact, to determine credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence." Siguenza-Brito, 235 Ill.2d at 228.
¶ 30 The trial court's finding that Mujkovic "overwhelmingly showed" feelings of guilt was also borne out in the record: Mujkovic fled the gas station before police arrived, contemplated killing the other witnesses (Rodriguez and Duran), tried to hide incriminating evidence, and planned to leave town to evade any consequences. In light of this other evidence, the trial court simply chose not to believe Mujkovic's claim of self-defense. Viewed in a light most favorable to the State, the evidence supports the trial court's findings that defendant did not shoot Cionzynski in fear of any unlawful force that was threatened against him or Mulosmani, and we conclude that a reasonable trier of fact could thus find defendant guilty of first degree murder.
¶ 31 III.
¶ 32 Accordingly, the judgment of the circuit court is affirmed.
¶ 33 Affirmed.