WRIT OF ERROR to the Circuit Court of Cook County; the Hon.
JOSEPH DRUCKER, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 24, 1968.
The defendant, Santiago Osorio Gonzales, was found guilty of murder and sentenced to 199 years imprisonment following a jury trial in the circuit court of Cook County. In this court the defendant contends that his constitutional right to counsel was impaired; that his motion to suppress statements was erroneously denied; that a shotgun was improperly admitted into evidence; that the trial court erroneously refused to give the jury an instruction on manslaughter; and that the closing argument of the prosecutor contained inflammatory and prejudicial remarks.
On September 10, 1959, at approximately 10 P.M. Guido J. Garro was shot and killed while standing in front of a tavern. A witness testified that at the time of the shooting he observed an automobile pull up to the front of the tavern and a person rise from the rear seat with an object. A flash and noise followed and the witness then noticed Garro lying on the ground, mortally wounded from a shotgun blast. None of the persons at the scene of the shooting were able to identify the occupants of the automobile.
On October 28, 1959, a Chicago police officer, Howard Roos, carrying a warrant for the defendant's arrest, went to Kingston, New York, where he took custody of the defendant and returned him to Chicago that same afternoon. After having lunch with Roos and two other police officers, the defendant was taken to the North Avenue police station where he signed a statement admitting that he had fired a shotgun into the group of men standing in front of the tavern. Present at the taking of this statement were four police officers and a priest. A second statement, similar to the first, was signed by the defendant on the following day, October 29, 1959.
The defendant thereafter retained Manuel Segarra as counsel, and on February 29, 1960, both the defendant and his attorney appeared before Judge Harry G. Hershenson and presented a petition requesting the court to allow Segarra to withdraw as defendant's attorney, or in the alternative "to appoint a competent attorney to direct and assist him in representing the defendant." In support of this request the petition asserted, in substance, that Segarra had been practicing law for less than one year and that, in view of the severity of the crime with which the defendant was charged, "the petitioner feels that unless he is assisted or directed by an experienced trial lawyer * * * the interest of the defendant will not be properly served." In response to this petition Judge Hershenson entered an order appointing the Public Defender of Cook County as additional counsel to assist Segarra in the trial of the case. At this point Mr. Oakey from the Public Defender's office appeared in court and was advised of the appointment. Segarra and Oakey thereafter entered into a conversation, the nature of which is not disclosed by the record, and afterwards Judge Hershenson noted that Segarra would proceed alone on the remaining motions. Segarra then moved for a severance as well as for an order suppressing the two statements given by the defendant. Both of these motions were denied and on May 9, 1960, the case was called to trial before Judge Joseph Drucker.
Prior to trial the following colloquy took place between a Mr. Flaherty of the Public Defender's office and the trial judge:
"MR. FLAHERTY: Your Honor, I understand the court sheet shows that the Public Defender has been appointed in this case to assist counsel here in the case.
THE COURT: Who did that, Judge Hershenson?
MR. FLAHERTY: Yes, that is what I understand.
THE COURT: It has come to the attention of the Court that there is an order entered showing that the Public Defender has been appointed to assist defense counsel Manuel Segarra in the defense of this case, however, the record should show that the assistance is to merely be advisory assistance since the Public Defender has not been called in to assist in the preparation of the case and is being asked by counsel Segarra merely to sit with him and advise him as to legal steps during the course of the trial and not to participate in any way in the activity of the trial.
MR. FLAHERTY: That's right, Judge. I might apprise the Court I know nothing about the factual situation here and anything else about the case. I will give whatever assistance I can in a legal way."
Following this conversation the case proceeded to trial before a jury resulting in defendant's conviction for the murder of Guido J. Garro.
Defendant first contends that his constitutional right to counsel was violated by the manner in which the court responded to his attorney's petition requesting either leave to withdraw or the assistance of co-counsel. He particularly urges that once Judge Hershenson had appointed associate counsel to assist Segarra at the hearing on the motion to suppress, it was error to allow Segarra to proceed alone in view of his admission of inexperience. As we have pointed out earlier, after Judge Hershenson had informed Oakey that the Public Defender's office was to assist Segarra, Oakey and Segarra entered into a discussion, the contents of which was off the record. We are unable to determine therefore the reason behind Judge Hershenson's decision to allow Segarra to proceed alone. We do not agree with the defendant, however, that this decision in and of itself would warrant reversal. There is no doubt but that a defendant is entitled to effective representation at such a critical stage of the proceedings as a motion to suppress, but any claim that such effective representation was denied must be supported by the record. The only factor which defendant discusses with regard to the motion to suppress is that his privately retained counsel admitted to inexperience. While it is true that inexperience may result in incompetence, it is not necessarily equated with it. Defendant relies on People v. Blevins, 251 Ill. 381, 390, where the court stated: "Oppression may result to a defendant defended by young and inexperienced counsel where he is prosecuted by an array of experienced and able attorneys, * * *." The court in Blevins went on, however, to point out the "record shows that by reason of the inexperience of plaintiff in error's counsel incompetent evidence of a highly prejudicial nature was introduced by the prosecution on the trial." No such examples of incompetency at the motion to suppress have been set forth by the defendant. He urges us, rather, to speculate as to the psychological disadvantage at which ...