WRIT OF ERROR to and APPEAL from the Circuit Court of Massac
County; the Hon. C. ROSS REYNOLDS, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1973.
Defendant, Richard Farnsley, was convicted of murder following a jury trial in the circuit court of Massac County and was sentenced to the penitentiary for a term of 40 years. He initially had filed a writ of error to this court, and thereafter sought post-conviction relief in the Massac County circuit court, which relief was denied without an evidentiary hearing. Both matters have been consolidated for purposes of decision.
Deceased, Harlan Reynolds, was the owner of a tavern in Brookport, Illinois. Shortly after midnight on January 26, 1958, Reynolds closed his establishment. Robert Montgomery, an acquaintance, testified that at this time he talked briefly to Reynolds outside the tavern and noticed that he was carrying a revolver and a box. Reynolds departed for his home, which was located a short distance from the tavern, and Montgomery stated that he then heard several explosions and a scream. He immediately went to Reynolds' house, where he saw deceased's body. He placed the time of this occurrence at about 12:35 A.M.
Deceased's wife testified that she was awakened by her husband's call for help and a gunshot. She went outside and discovered him lying on the porch near an unopened cash box which contained currency and checks totaling about $750. She further claimed that she and her husband had known defendant for several years and that he at one time had operated a pool hall at the rear of the tavern.
Mitchell McCandless, deceased's neighbor, testified that he noticed a vehicle, which he identified as a Packard, near his home that night. He later heard five shots and saw three unidentified occupants driving away in the car.
Byron Lents and Woodrow Arnold were the crucial State witnesses. Both had previously pleaded guilty to the murder and were awaiting sentencing at the time of defendant's trial. Lents testified that two weeks prior to the murder defendant asked him if he was interested in making some money and Lents said that he was. Defendant then told him to procure a car. However, Lents was apparently unable to do so. He was also unable to obtain an automobile a week later at defendant's request.
Finally, on January 25, 1958, Lents stated that defendant told him that he had arranged for the use of a vehicle. He told Lents to meet him that evening at the Sportsman's bar, which was located in Paducah, Kentucky. Lents testified that he arrived at the bar with a female companion where he met defendant and Marjorie Jones. Defendant then told him that Arnold, a bartender in this tavern, was going to drive the car. Lents, after leaving his companion, met Arnold and they picked up defendant at his apartment, which was located in Paducah, and then drove to deceased's house. There, Lents claimed, he took the gun which Arnold had brought and hid behind a hedge in deceased's yard as defendant had suggested. As Reynolds approached, Lents stepped from his concealment and shouted. Reynolds immediately turned and shot twice, wounding Lents. Lents said he then fired three shots at Reynolds and fled. He denied having a knife or similar object in his possession at this time. He further claimed that after the shooting he was taken to his sister's house by Arnold and defendant. A relative then called the police and Lents was arrested and taken to a hospital. Lents denied that any promises had been made to him by the prosecution.
Arnold testified that defendant asked him if he wished to make some "easy money" by robbing Reynolds. Arnold agreed to provide his automobile (Packard) and a weapon, which was owned by his employer. His testimony concerning the events surrounding the murder is substantially identical to that of Lents. In addition he testified that after the shooting he threw the weapon into the Ohio River on their return to Paducah. He also stated that he had not received any prosecution promises in return for his plea of guilty.
Marjorie Jones testified that she went to the Sportsman's bar on the evening of the murder and saw Arnold and Lents. She stated that defendant, who was also present, did not talk to these two men while she was there. This witness further claimed that she and defendant left the bar at about 11:30 P.M. and went to his apartment. Approximately fifteen minutes after their arrival, she said, defendant excused himself, stating that he would return in thirty minutes. She testified that during this interval she went to sleep, but was awakened by defendant when the police arrived several hours later. She admitted that she had consumed many drinks that evening.
Defendant testified in his own behalf and denied any complicity in the crime. He said that on the evening of the murder he left the Sportsman's bar with Marjorie Jones and went to his apartment, where they proceeded to drink. Defendant stated that after they had exhausted the supply of liquor he left the apartment about 12:30 A.M. and went to his car to obtain another bottle of liquor and his shaving kit. He said that as he was standing by his car several youths greeted him. When he returned to the apartment about 15 minutes later, he observed that Marjorie Jones, whom he described as being intoxicated, was asleep. After reading several newspapers he also fell asleep. He further testified that later that morning he saw the police arrive in front of his residence and, although they did not immediately come to his apartment, he dressed and awakened Miss Jones. On cross-examination defendant modified the time sequence to which he had previously testified, claiming that he returned from his car at approximately 11:50 P.M.
Martha Cole, a friend of defendant, testified that she had been in a club that evening which closed at midnight and she left about 12:15 A.M. As she was driving home, she passed defendant's apartment about 12:30 A.M. and saw him standing near his car but did not stop to talk to him. On cross-examination she admitted that she was not wearing a watch and her vehicle did not have a clock. She further admitted that she had been drinking that evening.
A number of issues are raised. Defendant first contends that he was denied a fair trial by the participation of a special prosecutor who, he claims, had not been properly appointed and who was compensated by the estate of the victim. Fletcher Lewis was retained by the estate and minimally participated at trial. Defendant relies on the absence of any record of Lewis's appointment by the court, and concludes that he was improperly appointed by the State's Attorney. We do not agree with this conclusion. Defendant filed written objections to Lewis's appearance, which objections were considered at a pretrial hearing. While there is no transcript of the hearing, we must conclude that Lewis's appointment was approved by the court, as is evidenced by his subsequent participation. Nor can we agree that the fact that there was a privately retained counsel "added an element of personal vengeance" that denied defendant a fair trial. It has long been held that a trial court is vested with discretion in permitting privately retained counsel to assist a State's Attorney in the trial of a criminal case. (People v. Husband, 4 Ill.2d 451.) In Hayner v. People, 213 Ill. 142, 147-148, a duty was ...