APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The defendants, James Climons, Levi Greenlee and Henry Allen, were charged by indictment filed in the circuit court of Williamson County, with the offense of armed robbery. Defendant Climons was additionally charged with attempt murder but this charge was dismissed on a motion by the State. Following a jury trial, the defendants were found guilty as charged and the trial court sentenced Climons to a term of 6 to 30 years, Greenlee to a term of 5 to 20 years, and Allen to a term of 4 to 12 years imprisonment. The defendants bring this appeal.
On appeal Climons contends that he was denied effective assistance of counsel; that he was denied a speedy trial; that the State failed to disclose certain evidence in its answer to his discovery motion; that the court erred in neglecting to rule on a motion to strike certain testimony; that he was denied due process of law by the use of a pretrial photographic identification; that the court erred in refusing to give an instruction; that the court erred in not excluding witnesses before Climons had been introduced to prospective jurors; and that the prosecutor committed error when he made a statement explaining the absence from the trial of two of the victims. Greenlee contends that he was also denied effective assistance of counsel; that the prosecutor committed error when he made a statement explaining the nonappearance of two of the victims; that he was not proved guilty beyond a reasonable doubt; and that error was committed in sentencing. On motion by defendant Allen, which we granted, the brief and arguments of Greenlee are also to be considered to have been made on behalf of Allen.
The facts in this case briefly stated are as follows: At 5:45 a.m. on April 20, 1975, Charles Norwood, Linda Johnson and Carolyn Hines were sleeping in a parked camper van, near Crab Orchard Lake east of Carbondale. They were awakened by Climons who announced a robbery and fired three or four shots, one of which went through the van. Norwood opened the door to the van and was able to clearly see Climons' face in the sunlight. Climons took from his victims, money, a television set and a watch. Climons also removed a microphone from Norwood's citizens band radio and he shot a bullet into a built-in eight-track tape recorder. Climons then ran toward a car which backed up to him and stopped. The car was a late model Buick with a dark brown body and a white roof and it bore a 1975 license plate numbered KX582. Norwood saw one person in the driver's seat and another on the passenger side. After Climons entered the vehicle, it left by turning onto route 13 and headed toward Carbondale. Soon thereafter Norwood contacted the police. At approximately 6:20 a.m. Carbondale police apprehended the defendants who were driving in a vehicle matching Norwood's description. The vehicle had been heading west on route 13 and had just entered the city limits. Inside the automobile, police found a gun, a television set and a hat and coat. A watch was found in Climons' pocket. At trial, Norwood identified the television set and watch as property taken during the robbery. He also identified the gun as that used by Climons and the hat and coat as that worn by Climons during the robbery. On the morning of the robbery, through photographs, and subsequently at trial, Norwood positively identified Climons as the man who robbed him. Federal Bureau of Investigation agents testified that a fingerprint found on the gun matched that of Climons' right ring finger. In addition it was determined that the lead composition of live rounds found in the gun matched the composition of two spent projectiles recovered from Norwoods' van and that, although the projectiles were mutilated when found, the width of a groove impression on one of the bullet fragments matched the width of the grooves in the barrel of the gun.
After the State rested, the defendants elected to rest without putting on any evidence. Following the trial, no post-trial motion was filed by any of the three defendants.
Initially the Public Defender was appointed to represent the defendants. Subsequently, more than one month before trial, separate counsel was appointed by the court to represent Climons.
• 1 On appeal, the defendants first contend that they were denied effective assistance of counsel from their respective court-appointed trial counsel. In Illinois, the cases have held that in order to successfully challenge the efficacy of counsel a defendant must demonstrate (1) actual incompetence of counsel, as reflected by the manner of carrying out his duties at the trial, and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different. (People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810; People v. Goerger, 52 Ill.2d 403, 288 N.E.2d 416.) However, a review of counsel's competency will not be appraised on the basis of matters involving the exercise of judgment, discretion or trial tactics. People v. Newell, 48 Ill.2d 382, 268 N.E.2d 17; People v. Turner, 36 Ill. App.3d 77, 343 N.E.2d 267.
• 2 In support of his contention, Climons argues that his counsel failed to object "to the in-court identification of the defendant in front of witnesses prior to their testimony." Although Climons failed to cite the portion of the record complained of in his brief, it appears that the incident involved the trial court's introduction of him to prospective jurors during the beginning of voir dire on the day before the trial began. Climons' argument is that this introduction permitted Climons to be viewed by Norwood before Norwood was called upon to identify Climons under oath. The record, however, does not show that Norwood was present at any time during voir dire. In a direct appeal review is limited to what appears in the record. (People v. McCarroll, 10 Ill. App.3d 249, 294 N.E.2d 52.) Since the record does not support Climons' factual allegation, we shall not consider the argument raised thereon.
• 3 The defendants next argue that their trial counsel's incompetence was shown by the failure to object to a statement made by the prosecutor in the presence of the jury. At trial, following cross-examination of Norwood by the Public Defender wherein the jury learned of the absence from the trial of two of the eyewitnesses, the prosecutor stated:
"* * * I would like to make a representation to the Court that Linda Johnson and Carolyn Hines were subpoenaed and we had telephone conversations with them. One of them has a one year old child and the other one is unable to attend the trial."
It appears that the failure to object by counsel was a matter of trial tactics. The prosecutor's statement had the effect of emphasizing the absence of the two witnesses and it was extensively utilized by defense counsel to suggest that the witnesses may not have testified favorably for the State. In any event, no substantial prejudice was shown by defense counsel's failure to object since the statement itself had not suggested what the witnesses would have testified to had the witnesses appeared.
• 4 Climons further cites his counsel's failure to call any witnesses in his behalf. But Climons does not argue nor does it appear from the record that there existed any witnesses whose testimony may have been beneficial to him. The failure to call witnesses cannot be the basis of a claim of incompetency of counsel where such failure appears to be a matter of trial strategy. (People v. Hines, 34 Ill. App.3d 97, 339 N.E.2d 489.) Moreover, defense counsel has no duty to manufacture a defense where none exists. (People v. Davis, 16 Ill. App.3d 846, 306 N.E.2d 897.) Under the circumstances, we find no merit to this argument.
Defendants Greenlee and Allen assert that their counsel's incompetence is shown by his failure to file a motion to suppress statements made to the police. No more need be said than to note that the record shows that this motion was, in fact, filed and that although no hearing was held thereon, the statements at issue were never introduced at trial.
• 5 Further, they assert that their counsel's failure to tender IPI Criminal No. 3.02 on the definition of circumstantial evidence, establishes incompetence and prejudiced their defense theory. The evidence against Greenlee and Allen was wholly circumstantial but neither paragraph of IPI Criminal No. 3.02 was given to the jury. The gist of their ...