APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNCK, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The defendant, Wade Robinson, was charged with the murder of Houston Walls, Jr. A jury in the Circuit Court of Cook County found the defendant guilty of voluntary manslaughter. The trial court entered judgment on the conviction and sentenced the defendant to a term of 4-12 years in the Department of Corrections. On appeal he asserts that he was denied a fair trial due to ineffective assistance of counsel, an erroneous jury instruction and highly prejudicial cross-examination of his wife.
On September 10, 1976, the defendant lived with his wife and children in an apartment at 1645 North Halsted in Chicago. The deceased, Houston Walls, was the caretaker of the building. Shortly after 11 a.m., on that day, the defendant was resting in his bedroom when he heard Walls come to his apartment. After Walls left, the defendant's wife advised him that Walls demanded $50 or he would turn off the lights in the apartment. Shortly thereafter, the defendant went into the basement to find Walls to discuss the matter. When he was unable to locate him, the defendant returned to his apartment.
Upon his return, the defendant was watching television with his wife and children when the electricity went off. The defendant took a loaded gun and went into the basement with his wife where he found Walls, with a screwdriver in his right hand, tampering with the fuse box. He told Walls that he did not owe him any money and asked Walls to turn on the lights. Walls refused, demanded $50 from the defendant and called the defendant derogatory names. Walls grabbed the defendant's shirt and tore it, poked the defendant in the chest and "busted" his lip.
The defendant testified that his wife, Annie, told Walls to stop calling the defendant names. He stated that Walls turned around and faced Annie, shoved her and grabbed her by the neck. The defendant testified that he thought Walls was going to kill his wife, so he shot him from a distance of four to five feet. He also asserted that Walls' reputation in the community was that of a violent, quarrelsome man who carried a gun.
Annie Pearl Robinson, the defendant's wife, described the events preceding the shooting of Walls and her testimony coincided with that of the defendant. She stated that Walls grabbed her around the neck and was pushing her when the defendant shot him.
Jerry Selvy, a resident of the apartment building, was an eyewitness to the shooting. When the lights went out in his apartment, he went into the basement to turn them on and witnessed Walls, the defendant and Annie arguing. He testified that Annie grabbed Walls' arm and he pushed her away. Annie, who was standing in front of the doorway, pushed Walls. Walls then pushed Annie out of his way so he could leave the basement. At this time the defendant removed a gun from his back pocket, placed it in back of Walls' head and shot him.
Officer Michael Fitzgerald of the Chicago Police Department, was the officer who took the defendant into custody. He testified that the defendant admitted shooting Walls. The defendant told the officer that he and Annie pleaded with Walls to turn on the electricity. Walls became belligerent and slapped and pushed Annie. When the defendant went to Annie's aid, Walls turned around with a screwdriver. At this time the defendant pulled his gun and shot Walls.
Investigator Lee Epplen of the Chicago Police Department, testified that he interviewed the defendant at police headquarters the afternoon of the shooting. The defendant told the officer that when he and his wife went into the basement, after the lights in his apartment went out, Walls was pulling wiring from the electrical box. The defendant asked Walls to stop pulling the wiring and turn the lights back on in his apartment. Walls became abusive, called him names and grabbed the defendant, tearing his shirt. Shortly thereafter, Walls' attention focused on Annie. The defendant noticed that Walls clenched his left hand and that he appeared to have something in his right hand. The defendant told the officer that he didn't know if Walls was going to hit his wife or not. The defendant reached into his back pocket, pulled out the gun, placed it near the back of Walls' head, and fired one shot.
On appeal the defendant argues that he was denied a fair trial because of ineffective representation of counsel, as evidenced by the crude and offensive nature of his trial attorney's closing argument. He labels the overall tone of the closing argument as abusive, states that the attorney used unwarranted profanity, and asserts that the attorney made statements to the jury which amounted to an admission of his guilt. In addition, the defendant argues that the attorney frequently referred to the theory of defense of dwelling despite the trial court's refusal to tender an instruction concerning this defense.
The State argues that the tone of the closing argument is a trial tactic which represents an exercise of judgment and therefore cannot be used to establish ineffective representation of counsel. Assuming that the tone of argument can establish incompetence, the State asserts that the requisite substantial prejudice without which the outcome would have been different, is absent in this case.
1 Our supreme court recently reiterated the test to be applied in determining whether a defendant was afforded effective assistance of counsel. In People v. Murphy (1978), 72 Ill.2d 421, 381 N.E.2d 677, the court stated that a conviction will not be reversed because of the incompetency of counsel unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or sham.
The competency of an attorney is determined from the totality of his conduct at trial. (People v. Murphy; People v. Somerville (1969), 42 Ill.2d 1, 245 N.E.2d 461.) Mistakes in strategy will not render the representation incompetent. (People v. Torres (1973), 54 Ill.2d 384, 297 N.E.2d 142; People v. Shestiuk (1978), 59 Ill. App.3d 296, 376 N.E.2d 56.) In addition, the fact that another attorney in the better light of hindsight may have handled the trial in a different manner is not an indication of the trial counsel's incompetence. People v. Rodgers (1978), 58 Ill. App.3d 719, 374 N.E.2d 721.
In his testimony the defendant admitted shooting Walls; however, he claimed that Walls had grabbed his wife by the neck and he believed that Walls was going to kill her. Obviously, the defendant was relying on the theory of justifiable use of force in defense of himself or another as ...