APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WAS PREPARED BY JUSTICE BUCKLEY WHILE ASSIGNED TO THE ILLINOIS APPELLATE COURT, FIRST DISTRICT.
Rehearing denied March 14, 1979.
This is an appeal by Donald Seel from his conviction after a jury trial for the murder of George Palcer on or about July 31, 1975.
Seel urges reversal of that conviction on four grounds. First, he alleges denial of due process in the refusal of the trial court to allow defense counsel to participate in a voir dire examination of the chief prosecution witness prior to her testifying. Second, he alleges that the refusal of the trial court to have that witness examined by a psychiatrist prior to her testifying constituted an abuse of discretion. Third, he contends that the evidence produced at trial did not establish his guilt beyond a reasonable doubt. Finally, he asserts that improper remarks by the prosecuting attorney in his opening statement denied him a fair trial.
For the reasons stated below, the judgment of conviction against Donald Seel is affirmed.
The testimony at Seel's trial in the Cook County Circuit Court, Judge Philip Romiti presiding, may be summarized as follows:
Police Officer John Toenings testified that at 6:30 a.m. on July 31, 1975, he viewed the body of George Palcer in the gangway behind 5023 North Winthrop in Chicago. He observed injuries to the victim's head and upper torso. Fifteen to twenty minutes later he entered apartment number 222 of that address and observed a pool of blood and blood-spattered walls in the living room, with a trail of blood spots leading to the back door. He found a blood-stained yellow shirt in the washroom.
Dr. Yeksel Konakci, a coroner's pathologist who performed an autopsy on Palcer's body on July 31, 1975, testified that Palcer died of cranial injuries and strangulation, and that there were marks on the neck consistent with impact strangulation, which could have been caused by a shoe.
Officer James Nolan found the defendant, Seel, with his eyes closed in a closet in apartment 222 at 4:30 p.m. on July 31, 1975.
The parties stipulated that the yellow shirt found by Toenings and a grey pair of trousers and boots seized from defendant at the time of his arrest were preserved for microanalysis, and that Palcer's hair was dark brown.
Mary Ann Mohan, a police microanalyst, testified that B-type human blood was present on Seel's trousers and boots as well as on the yellow shirt. A blood sample from the apartment was also B-type. She also found dark brown human hair on the bottom of the boots. Mohan testified that the deceased's blood-type was B, which is found in about 12 percent of the population and that Seel's blood-type was O, found in 45 percent of the population. A-type blood was also found on the boots and shirt.
The only eyewitness to testify was Sophia Nash. Prior to trial defense counsel had filed a written motion to have Nash examined by a psychiatrist. The motion was argued and denied. Subsequently the trial court conducted an in camera examination of Nash in the presence of counsel, but did not allow counsel to pose questions to Nash. Details of this motion and the in camera examination are discussed in connection with Seel's contention that the trial court's handling of these matters constituted an abuse of discretion. The trial court determined that Nash was competent to testify.
At trial, as at the in camera examination, a Polish-English interpreter was on hand because Nash had an imperfect knowledge of English. However, she told the trial judge that she spoke English with less difficulty than Polish. Nash also was deaf in one ear and had undergone treatment on four occasions in a mental hospital. She had one child.
Nash testified that she lived in apartment 222 at 5023 North Winthrop on July 31, 1975, and that Seel and a man known to her as Bob were in her apartment on July 30 together with George Palcer. Nash said Palcer was near a window when the beating occurred, and that Seel knocked him down, kicked him 15 times in the head and stepped on his throat with his boot five to eight times.
Nash placed Palcer's time of arrival at the apartment at about 11 p.m. on the 30th, but on cross-examination said she did not know whether it was dark outside when he was beaten. Nash also testified that Seel and Bob carried Palcer through the apartment and threw him from the back porch, but on cross-examination she said she did not see who threw the body from the porch.
After the beating, according to Nash, the two men washed their clothes and placed them in a bag. On cross-examination she denied that she had told defense counsel in a prior conversation that Seel gave his clothes to Bob, who removed them from the apartment. She said Seel threatened to kill her and her child if she reported the killing to police.
Nash could not estimate how long after the beating Palcer's body was removed. She said she fainted after the first stomp and at various times during cross-examination she protested that she had no idea of time because she did not wear a watch.
At trial she identified a pair of boots, dark-striped pants, and a yellow shirt as belonging to Seel.
Nash did not voluntarily report Palcer's death to the police and could not recall where she first spoke to police. The first account of the incident she gave to the police was that three black men had come to her apartment and killed Palcer. At this time she did not mention that the body was thrown from the back porch. She admitted that this first version was false, and was unable to say how long she waited before changing her story.
Nash also testified that Seel beat her on the night that Palcer died, but could not say how many times he hit her. On cross-examination she stated that a tall southern man was involved in a fight in her apartment before Palcer's beating, but later denied that such a fight had occurred. She also stated that, at the time of the beating, she was not wearing yellow pants.
Nash was also cross-examined regarding a pretrial conversation with defense counsel and two other attorneys. When asked whether she had told those attorneys that she herself had stepped on Palcer's throat, she insisted that the Polish-speaking attorney present had misunderstood her and denied making such a statement in English. She also stated that, when she demonstrated the act of stomping, she was demonstrating how Seel had done it, and not how she had behaved.
Defense counsel also asked Nash whether she had been beaten by a group of black men on the South Side of Chicago. She denied that such a beating had occurred and denied that any black men came to her apartment between 7 p.m. on July 30 and dawn on July 31, 1975.
Under cross-examination Nash admitted she had been hospitalized four times for mental problems, but said she did not recall meeting Dr. David Schutz or Judy Crivolio during these periods of hospitalization.
At the conclusion of Nash's testimony, the defense renewed its motion to have Nash declared incompetent and this motion was taken under advisement.
The defense presented Dr. David Schutz, who testified that he was the psychiatrist who oversaw Nash's treatment between December 1974 and April 1975, and saw her 30 to 50 times during this period. He characterized her behavior as childish and said she exercised poor judgment, but overall she functioned pretty well. Under stress Nash was more likely to respond childishly than under normal circumstances, he said.
On cross-examination Dr. Schutz stated that Nash was not subject to delusions or hallucinations, although Nash had refused six months into pregnancy to accept that she was pregnant. He also stated that she did not have a history of reporting acts of violence which did not occur.
Dr. Schutz identified Judy Crivolio as one of six coordinators under his immediate supervision.
Elizabeth Farrell testified that on the night of July 30, 1975, she resided in the apartment next to 222, and that at 10:30 or 11 p.m. she saw a black man enter that apartment. Later she heard screaming, which continued until 2:30 or 3 a.m. She said the only voice she ...