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People v. Lowery





APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.


The defendant, Jimmie Lowery, was indicted for the offense of murder in violation of section 9-1(a) of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)). After a jury found defendant guilty of voluntary manslaughter, the circuit court of Will County sentenced him to a term of imprisonment of from 6 to 18 years.

The sole issue presented for review is whether defendant was denied effective assistance of counsel. In light of our decision and the nature of this issue it is unnecessary to set forth in detail the evidence adduced at trial upon which defendant's conviction rests.

Testimony presented by the State's witnesses at trial establish that Victor Bostjanncic, Sr., died in an incident in which the defendant was involved. One State witness, Jim Young, testified he was running to the scene of the incident and when he was two feet from Bostjanncic, he observed defendant striking the victim with a "police zap," which appears to be an object akin to a blackjack. He also observed defendant kicking the victim. Another witness testified she observed the defendant strike Bostjanncic twice with his fists after which she claimed to have seen Lowery pull "a long black object from behind him" and strike the elder Bostjanncic twice with the object. A third witness observed defendant swing a black object at Jim Young as the defendant was fleeing the scene, but did not observe the defendant strike the victim. Defendant's possession of the black object as he was fleeing was also confirmed by one of the other State's witnesses.

Prior to trial, the defendant sent the assigned trial judge a letter in which the defendant requested a new attorney, expressing dissatisfaction with his court appointed counsel, Mr. Falk. The court responded personally to the defendant several days later when the defendant was in court on a preliminary motion. The trial judge advised defendant that he would not replace Mr. Falk. No further expression of dissatisfaction by defendant occurred in the days remaining before trial.

During trial defendant again stated that he was dissatisfied with counsel, desired appointment of new counsel, and did not believe he was getting a fair trial. Several incidents occurred during trial which further demonstrate the existence of a strained relationship between defendant and his counsel. In the early stages of trial, defendant explained to the court that he had learned that he was entitled to produce character witnesses at trial, but suggested that counsel had either failed to inform him of this fact or had advised against using character witnesses, or was being uncooperative in assisting defendant to locate any such witnesses. After first admonishing defendant on the tactical shortcomings of using good character witnesses, the court ruled that the decision on use of character witnesses was one for the attorney to make.

At the same time as the discussion on character witnesses occurred, defense counsel informed the court that he had subpoenaed a potential witness for defendant, but after interviewing her, determined that her testimony, while helpful in certain minimal aspects, would be overall very damaging to the defendant and had decided not to call her. In spite of this, defendant informed the court he wished to call this witness to testify. The court found that the decision was one again for defense counsel to make and ruled that defense counsel's decision would stand.

After the State rested its case and outside the presence of the jury, defense counsel informed the court that the defendant wished to take the stand against counsel's advice not to do so. Even though counsel had consulted with defendant on a number of occasions, he was uncertain as to the specifics of what defendant would say if he testified. After first being admonished by the court as to risks of testifying, defendant took the stand. At the request of defense counsel, the court allowed the defendant to testify in narrative form. Defense counsel offered no reason for such a request.

After asking four preliminary questions, name, age, place of birth, and whether defendant had a prior theft conviction, defense counsel asked his client to tell the jury what he remembered about February 23, 1975. When defendant finished relating his story to the jury, his attorney asked him if he remembered anything else about the fight. Defendant answered that he could not remember anything more and defense counsel ended the direct examination. After a rigorous cross-examination by the State, the defendant's attorney asked no questions on redirect.

At the instructions conference, defense counsel informed the court that his client wished to proceed on the charge of murder only, to which the State agreed. However, the court found that because defendant's own evidence raised the issues of voluntary manslaughter, justifiable use of force, and the defense of intoxication or drugged condition, he was compelled by his obligation to fully inform the jury of all legal issues, to give the appropriate instructions on each of these issues.

Defendant argues on appeal that the failure of his counsel to conduct the direct examination of his client in the customary question and answer form, when viewed in light of a deteriorating attorney-client relationship, constitutes a denial of effective assistance of counsel. In support of this position defendant claims that his credibility was seriously undermined when it appeared to the jury that defense counsel refused to associate himself with defendant or his testimony. It is suggested that the jury was impliedly informed that the witness they were watching was different from others and unworthy of belief since even his own attorney appeared unwilling to associate himself with the defendant or his testimony. We find defendant's arguments unpersuasive for two reasons.

The American Bar Association has promulgated a series of guidelines for administering criminal justice which are relevant to our discussion. Those standards are called The American Bar Association Standards for the Administration of Criminal Justice and provide:

"Testimony by the defendant.

(a) If the defendant has admitted to his lawyer facts which establish guilt and the lawyer's independent investigation establishes that the admissions are true but the defendant insists on his right to trial, the lawyer must ...

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