WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Defendant Peter Edward Kenzik was indicted in the criminal court of Cook County for the murder of his wife. A jury returned a verdict of guilty and fixed his punishment at life imprisonment. He prosecutes this writ of error to review the judgment of conviction.
Defendant and his wife had been separated about four times during their marriage, the final separation occurring about February 1, 1953. Later that month he went to the apartment occupied by his wife and mother-in-law and attempted a reconciliation. On that occasion he threatened his wife with a gun but later handed it to her at her request. He told his wife and mother-in-law he would kill them if they told the police about the incident. On March 13, 1953, he again went to the apartment and talked with the mother-in-law while waiting for his wife to return from work. After about 20 minutes his wife returned and sat on the couch next to him. The mother-in-law brought them coffee and defendant asked her to leave while he talked with his wife. She went to the kitchen and then heard her daughter scream, "Mama, come quick, Pete is killing me." She rushed into the room and saw defendant stabbing his wife with a knife. The mother struggled with him and he stabbed her until the knife broke. He then left without saying anything. The daughter had been stabbed nine times in and about the chest and twice in the hand. The mother was stabbed five times in the back. They were both taken to the hospital where the daughter died about two hours later.
After defendant left the apartment, he checked in at a hotel under an assumed name where he stayed for two days. He had read in the newspaper that the police were looking for him in connection with the slaying of his wife. He then went to Gary, Indiana, where he stayed two days under an assumed name and after that he spent various amounts of time under various names in Detroit, New York City, Cleveland, Philadelphia, Boston, Buffalo, Cincinnati, St. Louis, Dallas, Houston, Los Angeles, San Francisco and San Diego. He was finally arrested in San Diego on January 25, 1955, and turned over to the Chicago authorities.
He was thereafter indicted for the murder of his wife and tried in May, 1955. A jury found him guilty and fixed his punishment at death. We reversed this judgment of conviction and remanded the cause for a new trial because the defendant had not had a fair trial. (See People v. Kenzik, 9 Ill.2d 204.) The defendant was again tried in May, 1957. The second jury also found him guilty and fixed his punishment at life imprisonment.
It is first argued that it was reversible error to set this cause for trial seven days after defendant received the list of witnesses the People intended to call. In all felony cases the People are required by statute to furnish the defendant with a list of witnesses. (Ill. Rev. Stat. 1959, chap. 38, par. 729.) The purpose of the statute is to prevent surprise and to enable the defendant to combat false testimony. (People v. Ford, 19 Ill.2d 466; Pepole v. Quevreaux, 407 Ill. 176; People v. Weisberg, 396 Ill. 412.) We have held, therefore, that it is within the discretion of the trial court to allow unlisted witnesses to testify, (People v. Ford, 19 Ill.2d 466; People v. Kemp, 396 Ill. 578; People v. O'Hara, 332 Ill. 436,) and the trial court's ruling will not be disturbed unless it appears that defendant has been taken by surprise or prejudiced. (People v. Quevreaux, 407 Ill. 176; People v. Weisberg, 396 Ill. 412.) The burden of showing surprise or prejudice is on the defendant. People v. LaCoco, 406 Ill. 303; People v. Nixon, 371 Ill. 318.
The defendant does not and could not claim to have been surprised, in view of the fact that the trial court granted a continuance of seven days solely on the ground that the list of witnesses had not theretofore been furnished to him. Furthermore, there is no assertion that any of the prosecution's witnesses gave false testimony, and even if this assertion had been made, there is nothing to show that defendant did not have sufficient time to combat such testimony. There is absolutely nothing to indicate an abuse of discretion by the trial court in setting the case for trial seven days after delivery of the list of witnesses.
It is next argued that the trial court erred in forcing defendant to trial under circumstances which deprived him of a competent legal presentation of his case. The record shows that a week before the trial was to begin the defendant, in the absence of counsel, made a motion to the court that his court-appointed counsel, David Bradshaw, be withdrawn as his attorney. The court suggested that Bradshaw make such a motion. The defendant then gave the court a list of lawyers and asked that one of them be appointed to assist him while he represented himself. The court assured defendant he would appoint competent counsel for him although it might not be one of those suggested.
On the day set for trial, Bradshaw moved that he be permitted to withdraw as counsel because the defendant did not want his services. The defendant again stated that he intended to represent himself and asked the court to appoint an attorney from the tendered list to assist him. The court denied defendant's motion because he felt defendant was merely attempting to delay the trial. The defendant went to trial and conducted his own defense with the assistance of Bradshaw, who consented to remain in the case in that limited capacity upon request of the court.
The record contains a considerable number of discussions that were held with respect to who would represent defendant. The defendant gave as his reasons for not wanting Bradshaw to represent or assist him that Bradshaw was prejudiced, that he had no interest in the case, that he lied under oath, that he was not prepared to try the case and that he was incompetent. Defendant tried to prove these accusations by reading letters he had written to Bradshaw and by examining Bradshaw under oath. Bradshaw answered that he was not prejudiced against defendant and that he was prepared to try the case. The record also shows that Bradshaw has tried hundreds of criminal cases, including many murder cases where the extreme penalty was asked. The trial court properly concluded that there was no basis for defendant's reasons for wanting Bradshaw to withdraw.
The court had previously appointed Kevin J. Gillogly, the Public Defender, and Warren Carey at various times to represent defendant before his first trial. Each of these attorneys withdrew and defendant represented himself at that trial. Carey, who had withdrawn at defendant's request, was the attorney who later successfully appealed from that first judgment of conviction. Nevertheless, defendant, while making accusations against Bradshaw, also made similar accusations against Carey.
It is apparent from the record that defendant either could not or would not permit anyone else to accept the responsibility and control of conducting his defense. The trial court fully and properly, on several occasions, explained to the defendant his right to counsel. Defendant, by his requests to represent himself and by his conduct, knowingly waived his right to be represented by counsel.
Despite the fact that defendant had effectively waived his right to be represented by counsel, the court felt that it should have counsel present to assist defendant during the trial. This is what defendant wanted, but he did not want Bradshaw's assistance. In view of the fact that Bradshaw is a competent criminal lawyer, that he was not to have the responsibility and control of the defense of the case and that he was familiar with the case and was ready and willing to ...