{ "id": 5211446, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. SAVICKAS, Defendant-Appellant", "name_abbreviation": "People v. Savickas", "decision_date": "1992-05-19", "docket_number": "No. 1\u201490\u20141484", "first_page": "322", "last_page": "336", "citations": [ { "type": "official", "cite": "230 Ill. App. 3d 322" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "419 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 1041", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3126283 ], "weight": 2, "pin_cites": [ { "page": "1048" }, { "page": "1048" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/1041-01" ] }, { "cite": "481 U.S. 200", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212712 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/481/0200-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "380 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3337395 ], "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0915-01" ] }, { "cite": "532 N.E.2d 1365", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2431585 ], "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0453-01" ] }, { "cite": "469 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562925 ], "weight": 2, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0642-01" ] }, { "cite": "521 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "413 N.E.2d 1254", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473083 ], "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0112-01" ] }, { "cite": "529 N.E.2d 972", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217570 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0176-01" ] }, { "cite": "578 N.E.2d 1168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 890", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499463 ], "year": 1988, "pin_cites": [ { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0890-01" ] }, { "cite": "581 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 468", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5276459 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0468-01" ] }, { "cite": "533 N.E.2d 1106", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5556897 ], "pin_cites": [ { "page": "351-52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0344-01" ] }, { "cite": "575 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591446 ], "weight": 2, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0435-01" ] }, { "cite": "526 N.E.2d 141", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "193-97" }, { "page": "197" }, { "page": "197" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "546 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. 2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569773 ], "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0370-01" ] }, { "cite": "538 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] }, { "cite": "407 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 850", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3192295 ], "pin_cites": [ { "page": "858" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0850-01" ] }, { "cite": "483 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130811 ], "weight": 2, "pin_cites": [ { "page": "67" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0054-01" ] }, { "cite": "386 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 721", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3309646 ], "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0721-01" ] }, { "cite": "551 N.E.2d 1012", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "194 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499627 ], "pin_cites": [ { "page": "1055" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/1048-01" ] } ], "analysis": { "cardinality": 1331, "char_count": 34126, "ocr_confidence": 0.784, "pagerank": { "raw": 7.342628621516067e-08, "percentile": 0.4404449834720094 }, "sha256": "3b5fbd41fc91287a64ae3858df489cd89f69ea59b8ac6a133463406b8e1c4fce", "simhash": "1:933e39ff7c2c53d7", "word_count": 5722 }, "last_updated": "2023-07-14T21:56:33.012273+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. SAVICKAS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE DiVITO\ndelivered the opinion of the court:\nDefendant Michael D. Savickas was convicted by a jury of first degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 \u2014 l(aXl), (a)(2)) and was sentenced to 28 years\u2019 imprisonment.\nOn 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\u2019s burden of proof; (3) comments made by the prosecutor denied him a fair trial; and (4) his right to confrontation was violated by the nonproduction of a subpoenaed defense witness.\nOn 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.\nAt 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.\nAfter sitting at the bar for a short time, Stack and Janus, who was Stack\u2019s 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, \u201cGive me the gun. I\u2019m going to shoot this motherfucker.\u201d Shortly thereafter, Walensky was able to push Janus out the front door and return to tending bar.\nAfter 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\u2019s concern. Defendant then threatened that he could have Stack\u2019s 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\u2019s job. Defendant then pulled out his gun and, pointing it at Stack\u2019s stomach, said, \u201cI could blow you away right now.\u201d 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.\nDefendant responded, \u201cOkay. Fine. No problem.\u201d 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 \u201ckick the shit\u201d 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 \u201cdirty motherfucker and a jag-off\u201d 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, \u201cI don\u2019t give a fuck about nothing.\u201d 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\u2019s 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.\nAfter 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.\nThomas 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, \u201cI\u2019m getting the hell out of here.\u201d Prior to leaving the bar through a side door, Vinicky, whom Walensky described as the \u201cmost passivistic\u201d 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.\nAs 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, \u201cWhat\u2019s the matter? Why are you doing all this?\u201d 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.\nFrom 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.\nAfter 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.\nChicago 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\u2019s 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.\nChicago police officer Robert Navigato, upon receiving Gordon\u2019s 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\u2019s truck and another live round near the funeral home.\nChicago 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 \u201chollow point,\u201d which would \u201cmushroom\u201d on impact, thereby creating extensive damage. The other bullet, found near the funeral home, was a \u201c.38 Plus P.\u201d 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 \u201cpocket gun\u201d: the gun\u2019s cocking mechanism was shrouded, which made it very concealable and prevented it from getting caught on clothing when pulled out of a pocket.\nAfter Ptak secured the scene, he went to the hospital where Vinicky was taken and learned that Vinicky had died. In the pocket of Vinicky\u2019s pants, Ptak found Vinicky\u2019s keys and a small, closed pocket knife with a 21/2-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.\nWhen Ptak arrived at the police station, two evidence technicians were preparing to perform a gunshot residue test on defendant. In response to defendant\u2019s 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\u2019s arms and physically restrained him for the test, the results of which were inconclusive.\nWhile in the interview room of the police station, Ptak advised defendant of his rights. After telling defendant that if he had no money for an attorney, one would be provided free of charge, defendant began laughing. Defendant then said, \u201cDo you know who I am? You guys are lucky my father is in Florida. You all would be in trouble.\u201d According to Ptak, the only time defendant appeared concerned was when the evidence technicians began putting things on the desk.\nSeveral days after the shooting, Walensky met with Robert Cooley, an attorney he had seen at the police station after defendant\u2019s arrest. They met at a restaurant where Walensky offered to change his story if defendant\u2019s father paid him $200,000. Cooley said he would \u201cget back\u201d to him, but never did. A few days later, Walensky testified before the grand jury.\nAt trial, Walensky admitted that the liquor license for the New Gold Coast Inn was held in someone else\u2019s name because he was not allowed to operate a tavern due to two prior felony convictions; in 1969, he had been convicted of interstate transportation of stolen merchandise and in January 1988, he had been convicted of issuing a bad check.\nAfter stipulations that the gun was found in a damaged condition and that it could not be determined whether the bullet recovered from Vinicky\u2019s body was fired from it, defendant testified in his own behalf.\nDefendant had been employed as a foreman for the Water Department for approximately eight years. On March 31, 1988, Holy Thursday, he finished his shift at 4 p.m. and went to his bank to cash a check. Afterwards, he stopped by a friend\u2019s business to wish him a \u201cHappy Easter\u201d and then drove to a restaurant called Mia Pueblo to meet Janus. The two had a few drinks and appetizers before leaving about 45 minutes later.\nAt approximately 6 p.m., defendant and Janus arrived at the New Gold Coast Inn, where defendant recognized several other city workers. At the time defendant entered the tavern he was carrying an unregistered gun; he explained that he carried the weapon during working hours for protection because of the rough neighborhoods that he had to enter. The bullets for the weapon were given to him by a Chicago police officer friend.\nAfter arrival at the tavern, Janus got into a \u201cheavy\u201d argument with Stack about the last job performance rating that Janus had given Stack. During the argument, Janus turned to defendant and said, \u201cGive me the gun, I\u2019m going to shoot him now\u201d; defendant, however, did not give his gun to Janus, who was drunk. Shortly thereafter, Janus was escorted out of the bar by Walensky.\nDefendant then turned to Stack and told him that Janus loved him, that he treated him like family, and stated, \u201cif he didn\u2019t, he could have suspended you three times a week, with the long lunches you take.\u201d Defendant then showed Stack his gun, stating, \u201cDave, if we all had it in for you, I would have given [the gun] to Casey, when he asked for it. He would have shot you. Nobody shot you, nobody beat you up, nobody harassed you. You\u2019re just being paranoid. Why don\u2019t you sit down, finish your beer. It\u2019s Easter weekend, relax, forget about it.\u201d After that exchange, in which no threats were issued by him, defendant put the gun away.\nThereafter, Walensky began to swear at defendant and told him to leave the bar. Defendant told him that he wanted to finish his beer, but Walensky came around the bar and jerked him off his bar stool. Defendant\u2019s gun fell out of his pocket, but he picked it up and put it back in his pocket. Walensky then told defendant that he had to leave the bar and began swearing at him; defendant swore back at Walensky and \u201cmight\u201d have told him that he \u201cwanted to kick his ass.\u201d Walensky then pushed defendant out of the tavern.\nDefendant, who wanted to return to finish his beer, tried to reenter the tavern, but the door was locked. He then banged on the window with his hand; he had a large silver ring on his finger which may have made the banging loud. Defendant then walked away, but returned a few seconds later. After banging on the window a second time, defendant walked south on Maplewood, when he heard a voice say, \u201cYou\u2019re a jagoff.\u201d Defendant turned around to face Vinicky standing by the tavern\u2019s side door. Defendant could also see Walensky standing by the front door holding a baseball bat. Vinicky, who then said to defendant, \u201cYou\u2019re a jagoff and I\u2019m going to waste you,\u201d reached into his jacket, and started to pull out a gun. Defendant panicked, grabbed his gun, and shot Vinicky. Defendant then ran, but returned to the tavern when he realized what he had done. As he neared the tavern, he heard someone yell to shoot him so he ran into the alley. He then emptied his gun and threw it on the roof, thinking that nobody could then shoot him with his own gun. After throwing the gun away, defendant banged on the doors of the funeral home, yelling for someone to call the police.\nAfter defendant was arrested and taken to the police station, he became afraid; he began wiping his hands on his face and clothing because he did not know what the evidence technicians were going to do to him. Defendant did not tell the police that they would be in trouble because of his father, who was a State senator; nor did he ever tell anyone in the bar that evening that he could have their jobs or could close down the tavern.\nAfter defendant\u2019s testimony, several witnesses testified that defendant was a peaceful, nonviolent person.\nAt the close of the evidence, the jury found defendant guilty of first degree murder; he was subsequently sentenced to 28 years\u2019 imprisonment.\nI\nDefendant initially contends that he was not proved guilty of first degree murder beyond a reasonable doubt. Specifically, he maintains that he was justified in the use of deadly force in self-defense. In response, the State asserts that defendant was properly found guilty of first degree murder beyond a reasonable doubt.\nThe Illinois statute on self-defense states:\n\u201cA person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself *** against such other\u2019s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself ***.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 7 \u2014 1.)\nKilling in self-defense is justified where (1) force has been threatened against a person; (2) the threatened person is not an aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; and (5) the threatened person must reasonably believe that danger exists, countering it requires force, and the force used was required. People v. Parker (1990), 194 Ill. App. 3d 1048, 1055, 551 N.E.2d 1012.\nHere, the only witness, other than defendant, to the shooting was Walensky. Defendant contends that the testimony of Walensky, a convicted felon and an admitted extortionist, is not credible and must be scrutinized with caution. Nonetheless, issues concerning the credibility of witnesses are for the trier of fact to decide. (People v. Mosley (1979), 68 Ill. App. 3d 721, 725, 386 N.E.2d 545.) Here, the jury was presented with all the evidence concerning Walensky\u2019s convictions and his attempt to extort money from defendant\u2019s father; moreover, the jury was instructed that evidence of a prior conviction may be used to judge the believability of a witness.\nDefendant further contends that his testimony established that he did nothing to provoke Vinicky, but that Vinicky threatened to \u201cwaste\u201d him and pulled a gun on him, and that he reasonably believed that he had to shoot Vinicky, a \u201chuge,\u201d drunk man. He maintains that Vinicky \u201cwas armed and drunk, shouted obsenities [sic] at [him], and was himself reaching for his weapon when the defendant was forced to used [sic] deadly force to repel the attacks upon him by two huge individuals.\u201d\nDefendant, however, ignores the testimony from Walensky, who stated that Vinicky was the \u201cmost passivistic\u201d person he knew; that Vinicky never got into or interfered in any fights; and that Vinicky merely asked defendant \u201cWhy are you doing this?\u201d Similarly, Chaplics described Vinicky as someone who was very quiet and \u201cnever said anything to anybody.\u201d Pecelli likewise never saw Vinicky get into a fight or have any trouble with anyone. Furthermore, no gun was found on or near Vinicky and testimony from Vinicky\u2019s daughter established that she had never known her father to own or ever carry a gun.\nAs a reviewing court, this court is not at will to overturn the judgment of the trier of fact unless the evidence fails to prove each element of the crime beyond a reasonable doubt. (People v. Almo (1985), 108 Ill. 2d 54, 67, 483 N.E.2d 203.) The issue of self-defense is one of fact (People v. Williams (1980), 85 Ill. App. 3d 850, 858, 407 N.E.2d 608), and where, as here, defendant\u2019s testimony is contradicted, the trier of fact need not believe defendant. Defendant\u2019s testimony concerning what occurred inside the tavern is contradicted by numerous witnesses; defendant testified that he never threatened anyone with the loss of his job or the closing of the tavern, yet Stack, Walensky, and Chaplics all testified that they heard defendant\u2019s threats and saw defendant threaten Stack with his gun.\nThe jury, which listened to the testimony of defendant and the succession of witnesses presented by the State, and which observed the demeanor and sincerity of the witnesses, was better able than this court to judge witness credibility. Defendant\u2019s testimony was uncorroborated. The State\u2019s version was corroborated in many respects, and specifically by the absence of a gun on or near Vinicky\u2019s body. We note that any inconsistencies in the testimony of the State\u2019s witnesses were emphasized by defense counsel during cross-examination. The jury was free to believe the State\u2019s witnesses and to disbelieve defendant, obviously an interested witness in his own behalf. See People v. Almo, 108 Ill. 2d at 67.\nAll the evidence, viewed in a light most favorable to the prosecution (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453), compels the conclusion that a rational trier of fact could have reasonably found the elements necessary to convict defendant of first degree murder beyond a reasonable doubt.\nII\nDefendant next contends that the jury was improperly instructed as to the burdens of proof for both first and second degree murder. Specifically, he asserts that the court failed to instruct the jury that the State had the burden to disprove his mitigating factors beyond a reasonable doubt. He argues that the jury should have been apprised that the State was required to disprove the elements of self-defense beyond a reasonable doubt.\nIn response, the State maintains that defendant has waived his right to raise this issue because of his failure to object both at trial and in a post-trial motion. (See People v. Wade (1989), 131 Ill. 2d 370, 375, 546 N.E.2d 553.) The State further argues that, assuming arguendo that the issue is not waived, the court\u2019s instructions properly stated the applicable law.\nDefendant asserts that section 3 \u2014 2 of the Criminal Code of 1961, which provides that, if an affirmative defense is raised, the State has the burden of proving a defendant guilty beyond a reasonable doubt as to that issue together with the elements of the offense, applies in the instant case where defendant raised the issue of self-defense. (Ill. Rev. Stat. 1985, ch. 38, par. 3 \u2014 2.) He relies upon People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538, for support. Neither case, however, supports reversal of defendant\u2019s conviction based upon the instructions given in the instant case. In Reddick, the Illinois Supreme Court held that the then-existing pattern jury instructions for murder and voluntary manslaughter, when given together, suffered from two related defects; the instructions incorrectly informed the jury that the State was required to prove the mental conditions that reduce murder to manslaughter when properly the State should have been required to disprove those circumstances. (People v. Reddick, 123 Ill. 2d at 193-97.) In Shields, the Illinois Supreme Court held that Reddick applied retroactively to those cases that had been pending on direct review when the court decided Reddick.\nThe Reddick court noted, however, that its holding would have only limited application due to the legislature\u2019s abolition of voluntary manslaughter and its enactment of the offense of second degree murder. (People v. Reddick, 123 Ill. 2d at 197.) Under former law, the State had the burden to prove the elements of murder beyond a reasonable doubt; the defendant then had the opportunity to present evidence of a factor in mitigation, serious provocation or unreasonable belief, either of which must have been present to reduce an offense of murder to voluntary manslaughter. (People v. Reddick, 123 Ill. 2d at 197.) The State then had the burden to prove the absence of the factor in mitigation beyond a reasonable doubt. (People v. Reddick, 123 Ill. 2d at 198.) Under the present statute, which became effective July 1, 1987, the State still bears the burden to prove the elements of first degree murder; however, the defendant now bears the burden to prove, by a preponderance of the evidence, one of the factors in mitigation which must be present to reduce an offense of first degree murder to second degree murder. People v. Shumpert (1989), 126 Ill. 2d 344, 351-52, 533 N.E.2d 1106; Ill. Rev. Stat. 1987, ch. 38, par. 9-2.\nIn the instant case, the instructions given properly advised the jury of the burdens of proof for both first degree murder and second degree murder. The instructions provided that the State had the burden to prove defendant guilty of first degree murder beyond a reasonable doubt, but that it was defendant\u2019s burden to prove by a preponderance of the evidence that a mitigating factor was present for a guilty verdict for second degree murder.\nDefendant contends that, because he raised the affirmative defense of self-defense (Ill. Rev. Stat. 1987, ch. 38, par. 7 \u2014 14), the court should have instructed the jury that the State had the burden of proving him guilty beyond a reasonable doubt as to that issue. (Iill. Rev. Stat. 1987, ch. 38, par. 3 \u2014 2(b).) Although it is true that where there is evidence of self-defense, the State must negate self-defense beyond a reasonable doubt (People v. Buckner (1991), 220 Ill. App. 3d 468, 581 N.E.2d 102; People v. Brown (1991), 218 Ill. App. 3d 890, 895, 578 N.E.2d 1168), a review of the record demonstrates that any failure to supplement the instructions was harmless beyond a reasonable doubt and any additional instructions could not have affected the jury\u2019s verdict. See People v. Buckner, 220 Ill. App. 3d at 473; People v. Fierer (1988), 124 Ill. 2d 176,186, 529 N.E.2d 972.\nNowhere does the record reflect that the jury was erroneously advised that it was defendant\u2019s burden to prove self-defense; rather, even the State in closing argument acknowledged to the jury that the State\u2019s burden was to disprove self-defense. Furthermore, we find a dearth of evidence of self-defense in the record. Because the evidence supporting defendant\u2019s first degree murder conviction was so clear and convincing that the jury\u2019s verdict could not have been different had additional instructions been given, defendant\u2019s argument must fail. People v. Shields, 143 Ill. 2d at 454.\nIll\nDefendant next contends that he was denied his right to a fair trial by prejudicial remarks made by the prosecutor during opening statements and closing arguments, and statements made by the prosecutor allegedly in violation of a motion in limine.\nThe State responds that defendant has waived his arguments concerning statements made in closing argument and in violation of the motion in limine because he failed to raise those issues in his post-trial motion. In the alternative, the State asserts that all comments were proper.\nThe complained-of comments involved the State\u2019s remarks during its opening statement and its closing argument that defendant\u2019s father was a State senator. During opening statement, the prosecutor informed the jury that it was important for them to know that defendant\u2019s father was a senator because the evidence would show that defendant thought that this fact\n\u201cgave him the power to threaten people with handguns, to threaten people with the loss of their jobs, to threaten Chicago Police Officers, to do whatever he wanted to do \u2014 because his father is State Senator Savickas.\nIt also enabled one of our witnesses to think that he would make a buck, *** attempt to get some money from this guy, because there was something at stake for this State Senator.\u201d\nIn closing, the prosecutor argued that the witnesses who testified against defendant did so because they did not \u201ccare who his dad is.\u201d The prosecutor further argued that \u201cYou\u2019re going to be treated the same when you\u2019re dead, and not just by God who doesn\u2019t care if you\u2019re rich or powerful or a senator\u2019s son.\u201d\nNotwithstanding defendant\u2019s assertions of prejudicial error, the comments made by the prosecutor were not improper. The purpose of an opening statement is to inform the finder of fact what the evidence will show. (People v. Warmack (1980), 83 Ill. 2d 112, 125, 413 N.E.2d 1254.) It is improper, however, for the prosecutor to comment on testimony which will be introduced and then fail to introduce that evidence. (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.) In the instant case, the statements made during opening statement were clearly comments upon the evidence the prosecutor intended to introduce at trial, and which later was introduced. The evidence at trial showed that defendant threatened one person with the loss of his job and another with the loss of his tavern, and that he told the police that they would be in trouble, but for the fact that his father was in Florida. The record does not indicate that, as defendant argues, the prosecutor\u2019s remarks were intended to inflame the passions of the jury (see People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275), but rather, indicates that the remarks were merely comments upon the evidence introduced later at trial. Similarly, the prosecutor\u2019s statements in closing argument properly commented upon the evidence introduced at trial and drew legitimate inferences therefrom. People v. Rader (1988), 178 Ill. App. 3d 453, 468, 532 N.E.2d 1365.\nDefendant also asserts that the State violated an in limine order excluding testimony about a saying on the T-shirt that defendant wore on the day of the shooting, reading, \u201cGun Control Means Being Able to Hit the Target.\u201d The court found that the T-shirt\u2019s message was \u201chighly inflammatory\u201d and thus barred it.\nAt trial, the prosecutor asked defendant, \u201cNow, without saying what was on [your T-shirt], did it have a saying on it?\u201d The court sustained defense counsel\u2019s objection and the prosecutor continued with a different line of questioning. Defendant attaches reversible error to this one reference to the T-shirt.\nWhile it is improper to refer to evidence which has been excluded (People v. Burton (1978), 63 Ill. App. 3d 915, 919, 380 N.E.2d 929), the prosecutor\u2019s question in the instant case did not violate the motion in limine; it merely asked whether defendant was wearing a T-shirt with a saying. Defendant\u2019s argument that the jury necessarily concluded that the saying was harmful to defendant\u2019s case does not follow.\nBecause none of the complained-of remarks, taken singularly or as a whole, constituted reversible error, defendant\u2019s argument must fail. People v. Estes, 127 Ill. App. 3d at 650.\nIV\nDefendant lastly contends that he was denied his sixth amendment right to confrontation due to the nonproduction of a witness at trial. The State responds that defendant was not prejudiced by the nonproduction because another witness\u2019 testimony established exactly the same information.\nIn the instant case, Walensky testified that he met attorney Robert Cooley, whom he had seen at the police station on behalf of defendant, at a restaurant four to five days after the shooting. There, Walensky offered to change his testimony for $200,000. Unknown to Walensky, at the time of the meeting, Cooley was an informant for the Federal government and the meeting was the subject of government memos.\nThereafter, the defense requested production of both the memos and Cooley, later serving subpoenas on the United States Attorney\u2019s Office. Defense counsel was told that Cooley\u2019s production would be difficult because he was in protective custody. The memos, stating in summary form the events of the meeting, however, were tendered to the defense on March 7, 1990. The memos were not prepared by Cooley; rather, they were summaries prepared by the government.\nTwo days before the commencement of trial, on April 20, 1990, the attorneys met at the office of the United States Attorney. Counsel for defendant was told that Cooley was available on the telephone and, with the other attorneys present, spoke with Cooley. Cooley refused to discuss the case, but stated that, if put on the witness stand, he would talk. Cooley, upon further questioning, however, stated that the memoranda made about the meeting were \u201cbasically correct\u201d and that \u201cI could not help either side. I know nothing in addition to what you know.\u201d Cooley was never produced as a witness, despite a circuit court order entered on January 25, 1990, compelling his production.\nThe confrontation clause of the sixth amendment guarantees the right of a criminal defendant to be confronted by the witnesses against him, essential to which is the right to test the truth of their assertions through cross-examination at trial. (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) For purposes of the confrontation clause, a \u201cwitness against a defendant\u201d is one whose testimony is part of the body of evidence which the jury may consider in determining his guilt or innocence. Richardson v. Marsh (1987), 481 U.S. 200, 95 L. Ed. 2d 176,107 S. Ct. 1702.\nIn the case at bar, defendant asserts that there is \u201cno question of the Defendant\u2019s need to call Robert Cooley\u201d and argues that the fact that Walensky testified about his meeting with Cooley does not mitigate the prejudice suffered. He maintains that the record indicates \u201cthat more information was available than what the government chose to tender or what Walensky chose to say at trial.\u201d He does not, however, say what that information might be.\nDespite defendant\u2019s assertions, it is what he was allowed to do, not what he was prohibited from doing, that is important; \u201c[t]he issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine whether the witness is worthy of belief [citation], not whether any particular limitation has been placed upon defendant\u2019s ability to cross-examine a witness or whether the jury has knowledge of any specific fact.\u201d (People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420.) Where the entire record reflects that the jury was apprised of adequate factors concerning relevant areas of impeachment, no constitutional issue arises merely because defendant was prohibited from pursuing an area of inquiry. People v. Hines, 94 Ill. App. 3d at 1048.\nAccordingly, defendant\u2019s contention that his rights were violated by his inability to impeach Walensky\u2019s testimony with Cooley\u2019s testimony must fail. Not only did Walensky testify as to everything that occurred between Cooley and him, but Cooley himself stated to defense counsel that he could not provide any more information than what the attorneys already knew. Because the jury was apprised of Walensky\u2019s attempts at extorting money from defendant\u2019s father through Cooley, we find that defendant\u2019s right to confrontation was not violated.\nBased upon the foregoing, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nHARTMAN, P.J., and SCARIANO, J., concur.", "type": "majority", "author": "JUSTICE DiVITO" } ], "attorneys": [ "Edward R. Vrdolyak, Ltd., of Chicago (William E. Reynolds and Phillip J. Bartolementi, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. SAVICKAS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201490\u20141484\nOpinion filed May 19,1992.\nEdward R. Vrdolyak, Ltd., of Chicago (William E. Reynolds and Phillip J. Bartolementi, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0322-01", "first_page_order": 342, "last_page_order": 356 }