People v. Mujkovic

235 N.E.3d 628

2022 IL App (1st) 200717

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Rashid MUJKOVIC, Defendant-Appellant.

No. 1-20-0717

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed September 30, 2022

Appeal from the Circuit Court of Cook County. No. 16 CR 15404, Honorable James B. Linn, Judge Presiding.

Kathleen T. Zellner and Douglas H. Johnson, of Kathleen T. Zellner & Associates, of Warrenville, for appellant.

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.

OPINION

JUSTICE MITCHELL delivered the judgment of the court, with opinion.

¶ 1 Defendant Rashid Mujkovic was charged by information with attempted armed robbery and first degree murder.¹ 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?

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. § 94(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 tridal 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

[1–3] ¶ 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, 435 Ill.Dec. 515, 139 N.E.3d 186; People v. Hale, 2012 IL App (1st) 103537, ¶ 24, 365 Ill.Dec. 41, 977 N.E.2d 1140. 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, 291 Ill.Dec. 615, 824 N.E.2d 191 (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.)).

[4, 5] ¶ 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:

"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 ***."

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, 383 Ill.Dec. 272, 14 N.E.3d 555. "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."...