APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Cook County found the defendant, Zelma L. King, guilty of three murders, and recommended a death sentence, which was imposed. On this appeal he contends that his procedural rights were violated in numerous respects, and that the judgment must therefore be reversed.
At the time of the killings, in May of 1967, the defendant, who was 25 years old, had recently moved into a second-floor apartment with his aunt, Bettie Smith, and her children. He brought furniture and a refrigerator with him, and he had placed a sign in front of the building offering the furniture and refrigerator for sale. Thomas Higgins came to the apartment in response to the sign and said that he would like to look at the refrigerator. Mrs. Smith, who was in the kitchen at the back of the building, saw the defendant and Higgins go to the basement and return, and then heard Higgins leave through the front door and go downstairs. About five minutes later she heard the defendant talking to Viola Kendall, the owner of the building, at the front door of the apartment. The defendant was explaining to the landlady the difference between his refrigerator and the one that belonged in the apartment. She testified that she heard the defendant say, "Don't," and then "Don't point it." Then she heard two shots and ran out the back door to the nearby home of her sister, who notified the police. Both Mr. Higgins and Mrs. Kendall were found shot through the head, on the landing outside the front door of Mrs. Smith's apartment.
Vasil Lookanoff lived in a garage next door to Mrs. Kendall's building. He was standing in the alley behind that building when he heard two shots. He then saw the defendant come down the back stairs and shoot Adelle Young at the back door of her first-floor apartment. The defendant disappeared immediately following the shootings, and he was living under an alias when he was arrested in Arizona 10 months later.
The defendant first argues that the judgment must be reversed because the trial court did not conduct a hearing to determine whether he was mentally competent to stand trial.
On his initial court appearance on March 27, 1968, the defendant requested the appointment of an attorney "from the Bar Association." Two such attorneys were appointed and they entered a plea of not guilty at his arraignment on April 11. On May 10, the court entered an order for a psychiatric examination by the Behavior Clinic. On May 28, the report from Dr. Haines of the Behavior Clinic was filed. It described two interviews with the defendant. The diagnosis following the first interview was: "Sociopathic Personality Disturbance. He knows that he is charged with murder, but otherwise refuses to elaborate on his charges. He is able to cooperate with his counsel." The diagnosis written after the second interview was: "Schizoid Personality Makeup. At this time he knows the nature of the charge and is indifferent to any cooperation." On June 5, defense counsel stated to the court: "I have had occasion to call Doctor Haines. And he said that means exactly what it says, that he doesn't know whether this man can or cannot co-operate with his attorney. He suggested that other psychiatric help be secured. And that an electroencephalogram be ordered." On June 10 the court appointed Dr. Tricou to examine the defendant and ordered that a competency hearing be held. On July 10, defense counsel sought a further continuance to allow Dr. Tricou to complete her examination. The defendant then asked that his lawyers be dismissed. His request was denied. The defendant was strongly opposed to any mental examination, and defense counsel asked the court to cancel its order for a competency hearing. The court denied this motion and then allowed the attorneys to withdraw from the case.
On August 2, Dr. Tricou filed her report, which stated:
"At the onset of the examination the prisoner stated, in a comprehensive orderly fashion, in what sounded like a prepared speech that he did not wish to be examined. He asked if it were compulsory and I indicated it was, whereupon he sat down and did not say another word.
Impression: Probable sociopathic personality. He seems to be aware of the nature of the charges against him but truly adequate assessment of his mental status and ability to cooperate cannot be made without further examination."
The second attorney appointed to represent the defendant also moved for cancellation of the competency hearing order. The court denied the motion, asking the attorney to study the matter further. On August 23 the defendant asked for a black lawyer. On October 23 the attorney then representing him was permitted to withdraw and a black lawyer was appointed. On January 14, at the defendant's request, this attorney was permitted to withdraw. The defendant had announced that he was ready for trial and that he could represent himself. He refused to be represented by the public defender. An assistant public defender was appointed to advise him, and on February 3, 1969, the trial commenced.
The defendant's contention with respect to a competency hearing must be denied. He had no prior history of mental illness or disorders, and his refusal to cooperate with the psychiatrists ordered to examine him stemmed from his insistence that he was mentally competent. An examination of the record leaves no doubt as to his ability to cooperate with counsel when he desired to do so.
It is next argued that the trial court erred in failing to hold a hearing upon the defendant's motion for substitution of another judge. That motion came too late. It was not made until after the defendant had appeared before the trial judge at least 11 times. The first day of trial had been spent in examining prospective jurors. At the beginning of the second day the defendant had moved for a continuance to allow him to seek another attorney; the court denied this motion and proceeded with the selection of the jury. The defendant then renewed his motion, and the court put the case over for two days to allow the public defender advising the defendant to familiarize himself with the prosecution's file. On the third day the defendant moved for the appointment of one of two named attorneys to represent him. The court denied this motion. The defendant then moved to dismiss the jury because it had been exposed to prejudicial publicity. After the jurors had been questioned to determine whether they had seen or heard reports of the case, this motion was denied. The defendant then moved to dismiss the jury because it did not fairly represent the community. The court denied this motion. Only then did the defendant present his motion for substitution of another judge. The motion was properly denied.
The defendant contends that the selection of the jury denied him a fair trial. He first directs attention to the fact that when one of the jurors was being questioned by the court he stated that if he was accepted he would not be a fair and impartial juror. On further questioning he said that he had worked with colored people and was prejudiced in favor of them. The trial judge then excused him. The defendant's position is that this juror should not have been excused for cause without further injury. No authority is cited to support the proposition that a trial judge abuses his discretion when he excuses a juror who asserts that he will be unable to render a fair verdict, and the contention is not persuasive. The defendant's objection to the dismissal for cause of another juror, who stated that he did not believe in the death penalty, need not be considered since the death sentence must be set aside for other reasons.
After the jury had been selected, the defendant moved to dismiss it because "(a) The jury is not a cross-section of the general population of Cook County" and "(b) The State systematically excluded and dismissed all Black jurors." The trial judge denied the motion on the ground that it came too late. The first of these grounds, that the venire did not reflect the community, cannot be reviewed here for lack of an adequate record, and in any event it is contradicted by the second ground, which is that the prosecution used peremptory challenges to exclude two black women and one Latin American. The ...