People v. Mulosmani

2022 IL App (1st) 200635

196 N.E.3d 1162

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

v.Florin MULOSMANI, Defendant-Appellant.

No. 1-20-0635

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed January 7, 2022

Thomas M. Breen, Todd S. Pugh, Jonathan M. Brayman, Robert W. Stanley, and Chelsy L. Van Overmeiren, of Breen & Pugh, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak and Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Following a jury trial, defendant Florin Mulosmani was convicted of first degree murder and sentenced to 40 years’ imprisonment. On appeal, defendant contends that the trial court erred in admitting (1) evidence that, prior to the instant offense, codefendant fired a gun from a car defendant was driving and (2) codefendant's hearsay statements as evidence of defendant's consciousness of guilt. He also contends that the evidence was insufficient to convict him of first degree murder beyond a reasonable doubt and that the State misstated the law in closing arguments. For the reasons stated below, we affirm.

¶ 2 I. JURISDICTION

¶ 3 On May 8, 2019, a jury found defendant guilty of first degree murder. The court sentenced him to 40 years’ imprisonment on February 28, 2020, and he filed his notice of appeal that day. Thus, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Mar. 12, 2021), governing appeals from a final judgment of conviction in a criminal case.

¶ 4 II. BACKGROUND

¶ 5 Defendant and codefendant Rashid Mujkovic were charged with the first degree murder of Damien Cionzynski while armed with a firearm and the attempted armed robbery of Mateusz Handley, allegedly committed on or about May 28, 2016. One first degree murder charge alleged felony murder based on attempted armed robbery. Codefendant was also charged with first degree murder with the allegation that he personally discharged a firearm proximately causing death.

¶ 6 The State tried defendant for first degree murder on theories of intentional murder, strong probability of death or great bodily harm, and felony murder based on attempted armed robbery. Defendants had simultaneous trials, defendant by jury and codefendant by the trial court.

¶ 7 A. Motions In Limine

¶ 8 During motions in limine , the State sought to admit coconspirator statements against defendants. In the motion, the State alleged a chain of events preceding and including the charged offenses to establish context for the alleged coconspirator statements. At about 2:30 a.m., defendants were in a car with Tisa Rodriguez, with defendant driving. Defendants yelled at people crossing the street, then codefendant shot at them and hit one. Defendant drove near Rodriguez's home and said that he did not want to drive around with the gun. Codefendant handed defendant the gun, and he went into an alley, returning to the car without the gun. However, just before they were about to pick up Amanda Duran, codefendant told defendant that they had to go back for the gun and that codefendant wanted to reload it. After picking up Duran, defendants returned for the gun and drove on. During the drive, codefendant fired the gun several times into the air. Duran was upset by this and briefly left the car before defendant coaxed her back. At about 5 a.m. Cionzynski and Handley were in a gasoline station when defendants arrived there. After defendants entered with Rodriguez and Duran outside, codefendant displayed a gun while defendant searched Handley's pockets and told him to give up his property. When Handley pushed defendant's hand away, defendant punched him in the face. Defendant then searched Cionzynski's pockets and struck him, and when he resisted, codefendant shot him. Rodriguez and Duran heard the gunshots. Defendants fled in the car with Rodriguez and Duran.

¶ 9 The alleged coconspirator statements were then made in the car. Duran recorded codefendant telling defendant that they had to leave the area quickly. Defendant remarked that he hurt his hand striking two men inside the gasoline station. Codefendant told defendant that he wanted to take Rodriguez and Duran to the woods, which Duran took to mean that he wanted to kill them. Defendants drove Rodriguez and Duran to Rodriguez's home, and defendant told her to pack. Defendants said that they were leaving the state, and defendant told Rodriguez that codefendant planned to kill Duran in the home. Rodriguez wept, and defendant told her that codefendant would kill her as well if she continued to cry. Codefendant told defendant to "do it," which Rodriguez took to mean killing Duran immediately. Duran fled during this conversation, and codefendant told defendant that they had to find her. They went back to the car but did not find Duran. Defendant drove to codefendant's home, where defendants discussed the murder and leaving the area, including codefendant suggesting burning the car. Rodriguez saw codefendant cleaning the gun. Defendants learned that police were seeking codefendant. Codefendant told a man Rodriguez knew as "White Boy" to "grab all his ammo," as codefendant did not want anything incriminating in his home if police came there.

¶ 10 The State argued that the various statements by defendants demonstrated a conspiracy between them and were made in the course of that conspiracy. A conspiracy can be shown by inference from circumstantial or direct evidence, including the acts and declarations of the participants in the conspiracy, the State argued.

¶ 11 Following arguments by the parties, the court granted the motion in part.

The court allowed the statements to be used to show consciousness of guilt by flight and "trying to eliminate some witnesses" and evidence. However, they would not be admitted as evidence of a conspiracy because they did not include "an agreement to do certain things together."

¶ 12 The State also sought to introduce other-crimes evidence against defendants: specifically, that witnesses saw defendants with a gun, codefendant fired that gun out of a car window, and codefendant was seen with the same gun after the charged offenses. The State argued that this evidence was part of a continuing narrative with the charged offenses and demonstrated defendant's knowledge that codefendant had a loaded gun before the charged offenses.

¶ 13 During arguments, the defense argued that the evidence would be more prejudicial than probative, as it had "nothing to do with what happened in that gas station" and Duran could testify to the gun. The State told the court that it would not use the first shooting where someone was shot against defendant and the jury would not hear evidence of that shooting. The court found the remaining evidence—defendants hid a gun, then retrieved and reloaded it, and codefendant fired it into the air as defendant drove—admissible to show defendant's knowledge that codefendant had an operable firearm. The court also found the evidence to be "part and parcel of the same course of conduct" of "meandering around" with the gun and killing with it. The incident where someone was shot would be excluded as to defendant unless he opened the door by testifying.

¶ 14 B. Trial Evidence

¶ 15 1. Handley

¶ 16 Handley testified that he and Cionzynski were friends for many years and saw each other nearly every day. Late on May 27, 2016, they were drinking together in a bar and then at Cionzynski's home. At about 5 a.m. on May 28, they walked to a gasoline station to buy cigarettes. When they entered, Handley saw defendants; the station clerk was also present in his bulletproof booth. "[T]hey asked me what's in my pockets and I just told them nothing and they—one of them just started patting me down." Handley clarified that defendant, "the one in the red shirt in the video" from the station, frisked him. Defendant asked Handley what he had in his pockets, then started searching his pockets. When Handley grabbed defendant's hand and pushed it away, codefendant "flashed a gun at me" from his pocket and waved it so that Handley noticed it. As this was occurring, Cionzynski was buying cigarettes from the clerk. After Handley pushed defendant's hand away, defendant punched him. "I guess [Cionzynski] ended up punching him back, then after all I remember is him getting shot in the head." Though defendant punched him, Handley was focused on codefendant, who had a gun. Once Cionzynski was shot, Handley focused on applying first aid rather than watching where defendants went beyond noticing that they left.

¶ 17 The parties stipulated to security video of the incident, which was played at trial. Handley pointed to himself and Cionzynski in the video wearing a white shirt and gray shirt respectively, to codefendant wearing a black shirt, and to defendant in a red shirt. Handley shook defendant's hand because he looked familiar. Handley noted video of defendant grabbing his pocket and noted a still picture from the video showing defendant indicating the gun in codefendant's pocket.

¶ 18 After the incident, Handley spoke with police. He was shown an array of photographs after reviewing and signing an advisory form, and he identified defendant as the man in red from the incident.

In September 2016, he viewed a lineup, again after reviewing and signing an advisory form, and identified codefendant as the shooter in black.

¶ 19 On cross-examination, Handley testified that he and Cionzynski both drank a significant amount of beer on the night in question from about 8 p.m. until the time of the incident about 5 a.m. He acknowledged that Cionzynski was intoxicated and he was "pretty tipsy" himself. He reiterated that defendants were already inside the gasoline station when he and Cionzynski arrived. He recognized defendant and had no...