APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
After a bench trial Sammie Garrett (hereinafter defendant) was found guilty of the murder of Karen Thompson by shooting her with a shotgun and for the unlawful use of a weapon. *fn1 After denying defendant's motion for a new trial, the court imposed a sentence of 20 to 40 years on the murder charge and a concurrent sentence of 1 to 5 years on the unlawful use of weapons charge.
Thereafter, the defendant filed a direct appeal (No. 55230) urging that the defendant was not proven guilty of the offense of murder beyond a reasonable doubt and that he was denied a fair trial. On May 11, 1972, over 24 months after sentencing and while the direct appeal was pending, a post-conviction petition *fn2 was filed on behalf of the defendant, asserting that during the trial of the case he was denied his constitutional rights of effective assistance of counsel and confrontation. The State filed a motion to dismiss, and after oral argument and the court's consideration of said pleadings, on October 31, 1972, the trial court granted the State's motion to dismiss. Thereupon defendant appealed the dismissal of the post-conviction petition (No. 58465). This court allowed the consolidation of the two appeals. *fn3 To help understand the separate theories, we shall summarize the facts presented in each appeal.
At the bench trial of the murder and unlawful use of weapons charges, the defendant was represented at all times by privately retained counsel. The State called 13 witnesses and presented the testimony of one witness by stipulation. At the conclusion of the State's case, defendant made a motion for a directed verdict on both charges which, after extensive arguments, the court denied. Thereupon defendant rested without calling one witness. After closing arguments, the court found the defendant guilty of murder and the unlawful use of weapons. The evidence before the trial court presented the following story.
Karen Thompson, the deceased, a white girl, was married. In the fall of 1969 her husband was a teacher at a south suburban high school. They had two children. At the time of the instant incident, the younger sister of the deceased lived with the Thompsons.
From August, 1969, through the date of her death on November 9, 1969, Karen was a student at Prairie State College, enrolled in a course on Afro-American Art and Culture. The class met on Wednesday evenings and usually Karen would leave home for class around 6:30 in the evening and usually return at 10 or 10:30 P.M. On the Wednesday preceding her death she had not returned home by midnight, whereupon her husband left home to look for her. While he was gone Karen returned home around 12:30 A.M., and, according to her sister, Karen was crying and upset. About 1 A.M. Thursday, her husband returned home and engaged Karen, who appeared to be distraught, in a conversation as to where she had been. Karen admitted she was having an affair with another man. Karen's husband testified that between Wednesday evening and prior to November 9, she had mentioned suicide, that periodically she appeared to be mentally depressed, and that he had suggested psychiatric help.
On November 8, 1969, the following Saturday, Karen, by telephone, discussed transportation arrangements for an evening get-together with friends Karen and her husband were to meet that night. Upon concluding the telephone conversation, Karen turned to her husband and said, "I can't face those people, I don't know."
Around 4 P.M. on Saturday, November 8, Karen packed a suitcase, borrowed $40 from her sister and was picked up at her house by a taxicab. The cab driver identified a photograph of Karen as the person she transported to 211 East 16th Street in Chicago Heights (a south suburban Cook County community). After exiting from the cab, according to the driver, Karen met a Negro man who resembled the defendant. The cab driver testified she worked until 4:30 P.M. on that Saturday and Karen was her last passenger of the day.
About 8:30 P.M., November 8, a Mr. and Mrs. James West of Los Angeles, California, registered for Room 5 at the Ford City Motel located at State Street and Route 30 in southern Cook County, near Chicago Heights.
During the late evening hours of November 8, the owner of Kazak's lounge in Chicago Heights saw the defendant and a white girl enter the lounge. The defendant had a package wrapped in a coat and the owner, believing the object looked like the barrel of a shotgun, told the defendant he would have to get out with the shotgun. After a brief conversation, the defendant left and returned in about 4 or 5 minutes, during which time the white girl remained at the table. The owner left in about 10 minutes; at that time, defendant and the girl were still there. The owner testified that he heard no gunshots or loud noises that resembled gunshots while the defendant was at Kazak's; that the girl appeared to have been under the influence of alcohol.
About 12 midnight on November 8, Ed Savage, a 2-year acquaintance of the defendant, arrived at Kazak's lounge, and, upon seeing the defendant and deceased sitting at a table, he joined them. The three drank beer while the defendant waited for two chicken dinners. Between 12:30 and 1 A.M. Savage drove the couple to the Ford City Motel at Route 30 and State. Before getting into the car, the defendant got his gun, which looked like a sawed-off shotgun wrapped in a green jacket, in the alley behind Kazak's. The defendant told Savage he found the gun. Savage testified he did not hear any shots at the time the defendant obtained the gun.
During the morning of Sunday, November 9, the defendant, his two brothers, and two females walked into headquarters of the First District, Chicago Police Department. *fn4 Defendant then volunteered the information to an assistant desk sergeant that he had been sleeping in a motel the previous evening; that when he got up Sunday morning he noticed a white girl named Karen lying at the side of the bed and that she looked like she was dead; that he identified the Ford City Motel Room 5 as where he slept; that he then left the room and proceeded to his brother's house, and thereupon came to the Chicago Police Department headquarters. The desk sergeant, by telephone, immediately notified the Cook County sheriff who had jurisdiction of the unincorporated area of Cook County where the motel was located.
About 10:50 A.M. on Sunday, November 9, 1969, Detective William Mitchell of the Cook County Sheriff's Police met the defendant at the First District Police Station and, after advising the defendant of his rights, the defendant accompanied him in Mitchell's car and drove to the Ford City Motel at Route 30 and State Street. During the ride the defendant said that he was out with the deceased; that they were drinking and smoking "pot" while at the Ford City Motel; that he fell asleep, and when he awoke the deceased was lying in a pool of blood; that he then dressed, picked up a shotgun lying alongside the body, wrapped it in his coat and left; and that he did not hear any shotgun blast.
Regarding his acquisition of the shotgun, Mitchell testified that the defendant said he had found the shotgun in an alley to the rear of a "chicken eating place" at 319 15th Street at approximately 2:25 A.M. while in the company of the deceased and one Edward Savage, and that he had fired two shots at that same location. Mitchell further stated that the defendant told him he had hidden the gun under the porch of his aunt's home; that the defendant directed him to the home where under the porch they found a "sawed-off, single barrel .12-gauge shotgun" wrapped in a green coat containing one spent shell; and that they then proceeded to the alley behind the "chicken house" where the defendant claimed he had found the gun and had fired two shots, and there the witness found one empty .12-gauge shotgun shell which he later gave to an Officer Borowski.
Mitchell went on to state that, at the police station on the date of the conversation, he had noticed a small cut between the defendant's thumb and index finger.
About 10:49 A.M. on Sunday, November 9, 1969, Patrolman Richard K. Larson of the Cook County Sheriff's Police Department, pursuant to radio direction, proceeded to the Ford City Motel Room 5. Upon arriving at Room 5 and opening the door, he found it was partially blocked by an object; that he looked inside and observed a female body lying on the floor; and that he observed a wound in the head and the body was not moving. Thereupon he secured the room and called for the detective unit.
Upon the arrival of the detectives, in order to re-enter the room, the door was squeezed because it would not open all the way as the body obstructed the operation of the door. The head of the body was toward the door; the body was on its back with the head and shoulders blocking the door. The officers testified that the body had a large wound in the head over the upper right eye with quite a bit of blood and brain matter around the body, floor, door and walls.
Inside, the officers testified, they found a bed in the middle of the room which had bed clothing in disarray, a desk, a chair and a suitcase by the door. Also found in the room were empty bottles and beer cans, a container with a grass-like substance appearing to be marijuana, one pair of man's shorts, a woman's brassiere, purse and coat, a .12-gauge shotgun shell that was not fired, and a note found on the dressing table which read:
"I killed myself, Karen."
It was stipulated by the parties that the note was in the handwriting of the deceased.
The police witnesses testified that in Room 5 when discovered, the body was clothed in a sweater and slacks; the body was examined for powder burns around the head wound and forehead but none were found; and no abrasions, cuts, discolorations or bruises were found about the hands. The police removed the body to the county morgue.
Delivered to the Chicago crime lab were two spent shotgun shells, one found in the alley behind Kazak's and one found in the chamber of the weapon, the live .12-gauge shell, various pellets recovered from the floor, and the shotgun which had a 15-inch barrel. The expended shotgun casing found in the shotgun and the one found in the alley behind the "chicken house" were compared with two test-shot empty shells by a Chicago Police Department firearms identification examiner and determined to have been fired from the .12-gauge shotgun obtained by Detective Mitchell under the rear porch of defendant's aunt's home.
The .12-gauge shotgun was described as a sawed-off single-barrel 15 inches long, containing, at the time found, a black tape at the middle of the barrel taping it to the stock and also a piece of black tape behind the trigger. Detective Mitchell testified he observed the gun test-fired about six times in a clamp on both sides of the barrel and the trigger pulled by a rope placed through the trigger, and that each time the gun was fired it landed on the floor. Mitchell further testified that, if he were holding the gun toward himself, the gun would go the opposite way from the direction of the shell or bullet after a discharge; that if the deceased was in a prone position already on the floor and fired the shotgun, the weapon owing to recoil, could possibly fall right next to the body; and that if in the recoil the gun hit some other object, it could have bounced to any position.
Detective Robert F. Borowski, a sheriff's policeman who testified as an evidence technician about the condition of the body and the scene in Room 5, stated that in his opinion, the force exerted against the victim was in a downward direction since "there was no tissue matter at all on the ceiling. It all started from the middle of the wall down to the floor." Borowski further testified that he had fired weapons thousands of times and a weapon similar to the subject shotgun approximately 20 times, and it was his opinion a person firing such a gun while holding it is a reverse position toward himself would not be able to hold onto the weapon and would also injure his thumb and forefinger.
Detective Borowski then testified that, while in the presence of himself and Detective Mitchell, Officer Sadunas of the Chicago Police Department Crime Laboratory fired various shotgun patterns from the subject gun; that, when the gun was fired anywhere from one to two feet from the target, it left a powder burn on the target but, when fired at a distance of four feet from the target, there were no powder burns; that upon firing, the weapon recoiled to the rear and slightly upward; that he recovered expended pellets from the floor in the area around the body and found none embedded in the walls or ceiling; that, assuming the victim was lying flat on the floor and shot the gun with it pointed toward her forehead, it is the witness' opinion that there would have been pellets embedded in the floor; that he found no pellets so embedded in the floor; that if the witness fired such a gun he would hold it at his waist to absorb the recoil; that, in his opinion, one could hold the gun in this position and inflict the wound that killed the deceased only if she were in a kneeling position; that the body was lying perfectly straight when found with only the arm bent; and that, in the witness' opinion, if the person firing the shot held the weapon above his waist, he would have suffered greater injuries from the gun's recoil than if he had fired it from his waist.
John M. Sadunas, a scientific crime detection laboratory firearms identification examiner for the Chicago Police Department, testified that his duties are to receive, record, evaluate and render a report of his findings on firearms and firearms evidence. He further stated that in his opinion, holding the gun in reverse fashion pointed slightly downward would cause hand injury due to the gun's recoil; that he has never fired such a gun in a reverse manner because he did not believe he could retain it in his hand as it would jump out of his hand; that the subject gun has a loose stock which forces it down with the opening lever more exposed, which is one of the reasons you get bit or cut by it, and that when he test-fired the gun he wore gloves; and that he had fired similar weapons without gloves and did not sustain an injury.
Sadunas then testified that powder burns depend upon the gram equivalent, and that the test shots had the same powder content as did the two expended cartridges according to factory specifications.
Sadunas and witness Borowski each identified 11 exhibits, photographs of shot patterns consisting of blotting and mat paper, each containing a hole of different size and degree of color around the periphery of the hole. The exhibits were identified as shot patterns from the subject gun fired toward the exhibit at a distance of 1 inch to 4 feet, with each exhibit indicating different degrees of dark areas identified as gun powder burns. The exhibits illustrated that the dark area or gun powder burns were more noticeable on the exhibits used at the 1-inch to 10-inch distances, whereas when the distance was 12 inches to 4 feet the amount of powder ...