APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Willie Earl McNeal was charged in a three-count indictment with the murder of Willie Davis and the attempt murder of Officer Joseph Kosala of the Chicago Police Department. He was tried jointly with co-defendant Ricky Smith in a bench trial. Co-defendant Ricky Smith was found not guilty. McNeal was acquitted on the charge of attempt murder but was found guilty of murder and was sentenced to 14 to 20 years in the penitentiary. He now appeals that conviction, raising three issues for review: whether he was proven guilty of murder beyond a reasonable doubt; whether the court's refusal to grant his motion for severance denied him his constitutional rights to a fair trial and to confront witnesses; and whether he was denied his constitutional right to the effective assistance of counsel.
On the morning of June 7, 1974, Officers Joseph Kosala and Edward Jolick of the Chicago Police Department were patrolling on Division Street in the vicinty of the Cabrini Green housing project in Chicago. Shortly before 2 a.m. they heard loud "reports" coming from an area south of where they were patrolling. The officers immediately drove south on Larrabee Street and then east on Oak Street and, after parking their car, they began walking north towards the area from which they had originally heard the shots. At this time, the officers heard a second volley of shots coming from the same general area. Both officers testified that each volley consisted of three to five shots.
Approximately 8 to 10 seconds after hearing the second volley of gunfire, the officers observed two individuals running towards them from the same general area from which the gunfire had emanated. These two individuals were later identified as Willie Earl McNeal and Ricky Smith. The officers situated themselves behind some parked cars and when the defendants were within approximately 20 to 30 feet, the officers jumped up and yelled "Halt, police."
At the trial, Officer Kosala testified that as he watched McNeal running, he noted that McNeal was carrying a gun in his hand. Upon being accosted by the police, McNeal turned to his right, squatted down and pointed the revolver at the officer. While Officer Kosala did not see McNeal pull the trigger of the gun, he claimed that he saw McNeal's hand muscles flex and heard two "clicks." Kosala then saw McNeal fall to the ground and the revolver slip out of his hands. He further stated that he saw no persons other than McNeal and Smith in the immediate vicinity where they were apprehended. Officer Jolick's testimony was substantially the same except that he claimed McNeal was carrying what appeared to be a weapon in his hand and that he stated that he did see several persons standing in a hallway of one of the project buildings located approximately 100 yards away from the place where McNeal and Smith were seized.
While apprehending McNeal, Officer Kosala recovered the gun which McNeal allegedly had dropped. The weapon was a .22-calibre blue steel two-inch revolver. Nine expended shell casings were found in the gun's chamber.
The body of Willie Davis was found by Officer David Suerth, of the Chicago Police Department, lying in a firelane located approximately one-half block from where McNeal and Smith were captured. Officer Suerth had responded to a radio call that a man had been shot in that vicinity and arrived at the scene at about 2 a.m., less than one minute after first hearing the radio report. Upon his arrival, he saw no one else in the area and observed no one running from the area. Approximately a minute and a half after Officer Suerth discovered the body, Officer Kosala joined him.
At the trial, it was stipulated that the forensic pathologist responsible for conducting the autopsy on Davis' body concluded that the cause of his death was a bullet wound to his chest. It was further stipulated that the gun recovered from McNeal was of the same calibre as the murder weapon. The ballistics evidence, however, could not demonstrate that McNeal's weapon and the murder weapon were, in fact, the same gun.
The police report on the incident was written by Officer Jolick. The report described McNeal's alleged attempt to fire at Officer Kosala in the following terms:
"R.O.'s [Reporting Officers] observed a gun in the hand of McNeal and at that time R.O.'s ran from their concealed position and the offenders were running straight at R.O.'s. At this time one offender McNeal pointed a gun at R.O.'s. Upon seeing the R.O.'s had their way blocked they stopped and McNeal threw his gun to the ground."
At approximately 5:30 a.m. Smith made a written statement regarding the incident. The evidence shows that before making the statement Smith was properly advised of his constitutional rights. Prior to trial, both McNeal and Smith moved for severance; McNeal based his motion, in part, upon the prejudicial effect which the admission of Smith's statement into evidence might have on his own defense. The trial court, noting that Smith's statement did implicate McNeal, gave the State three options with respect to the use of Smith's statement: to excise any reference to McNeal in the statement, to not offer the statement into evidence, or to join in the motion for severance. The State chose the first option and the motions for severance were denied. The defendants, both represented by the same counsel, waived a jury trial.
McNeal further raised an objection to the statement when it was offered into evidence at trial. The trial judge sustained these objections, as they related to McNeal, and specifically instructed himself to disregard Smith's statement in adjudicating the case against McNeal. Smith had moved, at the start of the trial, for the statement to be suppressed on the ground that it had not been voluntarily made. The motion was heard concurrently with the trial and was subsequently denied.
While Smith chose not to testify in his own defense, McNeal did testify. He stated that he and Smith had just entered one of the buildings in the project when he heard and then saw gunfire coming from above. Believing that someone was firing at him, he and Smith ran out of the building. McNeal stated that while running he heard bullets hit near him. McNeal then saw two men come out from behind parked cars, identifying themselves as police officers. Upon their command to halt, he dropped to the ground. While McNeal admitted that he owned the blue steel revolver which the police recovered when they apprehended him, he claimed that he never had the gun in his hand; rather, he asserted that he was carrying the gun on his side and that it fell out when he dropped to the ground. McNeal claimed that he had purchased the weapon approximately two hours earlier somewhere on the west side of Chicago for $25 and that the spent cartridges were in the gun when he purchased it. McNeal denied that he pointed the gun at Officer Kosala or that he shot Davis.
Smith was acquitted on all counts while McNeal was found guilty of the murder of Davis but not guilty of the attempt murder of Kosala. The defendant's motion for a new trial, based in part upon the court's denial of his motion for severance and ...