APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 15, 1980.
Following a jury trial in the Circuit Court of Kankakee County, defendant was convicted of murder and sentenced to 14 to 25 years in prison. On appeal defendant contends he was ineffectively represented by counsel and that the jury was improperly instructed on the defense of intoxication.
At approximately 9 p.m. on January 21, 1977, Officer Joseph Marek of the Kankakee County Police found the body of T.C. Brooks lying in the middle of a county road. The officer determined that Brooks was dead and observed two .22-caliber bullet holes near the victim's right breast. A subsequent autopsy revealed that Brooks had, in fact, been shot three times.
At about 10 p.m. on the same night, Corporal Buddy King of the Newton County, Indiana, sheriff's office discovered a 1967 Chrysler auto sitting in the median strip of U.S. Route 41, at a point later determined to be 28.3 miles from the spot where Brooks' body was located. The auto was empty, but Officer King saw defendant standing in the median strip about 50 yards away. As the officer approached him, defendant raised his hands and said, "Don't shoot, don't shoot, I don't have a gun." Defendant smelled of alcohol, his speech was slurred, he had trouble walking and he was covered with snow. Officer King arrested defendant for driving under the influence of alcohol and took him to the Newton County jail, where he was given a breathalyzer test and a field sobriety test. Defendant was unable to perform the physical tasks included in the sobriety test and the breathalyzer test indicated defendant had in excess of .31-percent alcohol in his blood.
After being advised by Kankakee authorities that defendant was wanted in connection with a homicide investigation, Officer King returned to defendant's auto, where he found several shell casings and observed blood stains on the auto's front seat. A partially filled pint whiskey bottle was discovered under the passenger's seat, and a .22-caliber pistol was found in a plastic bag about four feet off the road.
The day after the shooting incident defendant told Officer Joseph Beard of the Kankakee Sheriff's Department that he had been drinking from early in the morning the previous day and was in search of corn whiskey with Brooks and another man when he passed out in his auto, which Brooks was driving, and awoke on the median strip of Route 41 in Indiana. A few days later, however, defendant told Detective Bill Marks that he remembered shooting T.C. Brooks. In a written statement, defendant said he had given Brooks $25 to buy corn whiskey, but passed out in his auto while he, Brooks, and another man were looking for the whiskey supplier. When he awoke defendant was alone in the auto with Brooks who said he had given the $25 to his wife and had not purchased the whiskey. According to defendant's statement, a fight ensued and he grabbed his .22 pistol out of the ashtray when he feared that Brooks was reaching into his pocket for a gun. As Brooks tried to knock defendant back, defendant's gun went off twice and Brooks was hit with both bullets. Defendant said he left Brooks' body on the road and drove toward his home, but got lost and ended up in Indiana.
At trial defendant said he made the written confession as a result of promises of leniency from police officers and that it was not the truth. His trial testimony was substantially the same as the original story he had given Officer Beard, to the effect that he had passed out while in the auto with Brooks and another man and had awakened on the Indiana highway. Evidence was presented as to defendant's heavy drinking on the day of the murder and his chronic alcoholism.
1 Although Officer King testified that defendant registered a reading of 0.31 on a breathalyzer test administered the night of the murder, no expert testimony was presented explaining the meaning or significance of that reading to the jury. On appeal, defendant claims the lack of expert interpretation of the breathalyzer results rendered useless what otherwise would have been the strongest evidence in support of the defense of intoxication. Defendant claims his appointed counsel's failure to present such expert testimony constituted a denial of defendant's right to effective assistance of counsel. We do not agree.
"In order to establish lack of competent representation at trial, it is necessary to demonstrate `actual incompetence of counsel, as reflected by the manner of carrying out his duties as a trial attorney' which results in substantial prejudice without which the outcome would probably have been different." (People v. Goerger (1972), 52 Ill.2d 403, 409, 288 N.E.2d 416, 419; People v. Hills (1979), 71 Ill. App.3d 461, 389 N.E.2d 873.)
Competency of counsel is to be determined from the totality of counsel's conduct at trial. People v. Murphy (1978), 72 Ill.2d 421, 381 N.E.2d 677; People v. Steel (1972), 52 Ill.2d 442, 288 N.E.2d 355.
In the instant case the only basis on which defendant challenges his counsel's competency is counsel's failure to present expert interpretation of the breathalyzer results. Defendant concedes that considerable evidence was presented of defendant's intoxication at the time of the offense, and notes the testimony of defendant, his wife, his nephew, and a tavern operator who had sold him whiskey on the day of the offense. Two psychiatrists' reports detailing defendant's chronic alcoholism were introduced at trial. In short, more than sufficient evidence was presented for the jury to properly determine the merit of defendant's intoxication defense.
In addition to presenting considerable evidence in support of the defense of intoxication, defense counsel made and responded to numerous pretrial and post-trial motions, including a motion to suppress evidence and to quash defendant's arrest, a motion to reduce bail, a motion to substitute judges, an answer to the State's motion in limine, a motion for directed verdict, and a motion for a new trial. Defense counsel ably cross-examined the State's witnesses and made proper and timely objections to certain of the prosecuting attorney's questions and instructions.
2 Although defense counsel's failure to introduce expert interpretation of the breathalyzer results may have been an error in judgment, such an error of judgment does not, in itself, constitute ineffective representation of counsel. (Murphy.) Based on defense counsel's total conduct ...