APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After a joint trial by jury in the circuit court of Macon County, defendant Donald E. Nobles was convicted of the April 4, 1978, murders of Rosalyn Nesbitt and Clyde Davis and on December 15, 1978, sentenced to concurrent terms of imprisonment of 40 years and natural life respectively.
Defendant appeals asserting that: (1) the trial court erred in denying him a continuance; (2) both convictions should be reduced to voluntary manslaughter because the evidence showed that he unreasonably believed the killing was necessary to defend himself; (3) exclusion of veniremen who were dismissed because of their views of the death penalty deprived him of a jury from a representative cross-section of the community to determine the issue of his guilt or innocence; (4) the statutory provision for imposing imprisonment for natural life is so vague and ambiguous as to be unconstitutional; (5) imposition of a sentence for natural life violates the Illinois Constitution of 1970; and (6) his sentences should be reduced because his conduct resulted from a long history of drug abuse.
Because most of defendant's contentions do not concern the proof of his guilt or innocence we will refer to the evidence only during discussion of the points to which it relates.
Defendant was represented at trial by lawyers Paul Brayman and Stanley Hill. On the first day of trial the defense made a request for a three-day continuance to permit Mr. Brayman to attend the funeral of his mother. The request was denied and the trial proceeded with Mr. Brayman absent during the selection of the first eight jurors. Pointing out that jury selection is a crucial part of the trial of a criminal case, defendant maintains that the denial of the continuance deprived him of a fair trial.
In Giacalone v. Lucas (6th Cir. 1971), 445 F.2d 1238, the following were deemed to be factors to consider in determining whether a defendant had been deprived of a fair trial when a continuance had been denied because of the unavailability of counsel: (1) the length of the delay that would be required; (2) whether co-counsel was available to try the case; (3) whether prior continuances had been granted; (4) the inconvenience to the parties and witnesses; and (5) whether the request is dilatory. Here, the request was obviously not dilatory. However, Mr. Hill was available to represent the defendant. He appeared to be fully familiar with the case and continued to take an active part in the trial after Mr. Brayman returned. Moreover, various previous continuances had been granted. Three of them were at defendant's request and a fourth was nominally at the State's request but actually arose because of an unavailability of defense counsel. Even a three-day continuance of a complicated jury trial inherently imposes inconvenience on the parties, witnesses and court.
1, 2 The supreme court has held the denial of a continuance because of unavailability of counsel to be proper when co-counsel was available to adequately try the case in People v. Miller (1958), 13 Ill.2d 84, 148 N.E.2d 455, and People v. Davis (1950), 406 Ill. 215, 92 N.E.2d 649. Ordinarily the failure to grant a continuance will not be held to be error unless there is a clear showing of an abuse of discretion (People v. Gray (1978), 61 Ill. App.3d 243, 377 N.E.2d 1311). No such showing was made here. No error resulted from the denial of the continuance here.
At trial defendant admitted the killings but asserted that he was not guilty by reason of insanity. Both killings involved bizarre circumstances and testimony indicated that defendant had a feeling that others were out to get him. The opinion testimony concerning his sanity was conflicting but he asserts that it proved, as a matter of law, that he could only be guilty of voluntary manslaughter as to each victim. He relies upon section 9-2(b) of the Illinois Criminal Code of 1961 which provides that:
"A person who intentionally or knowingly kills an individual commits manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing * * * but his belief is unreasonable." (Ill. Rev. Stat. 1977, ch. 38, par. 9-2(b).)
He maintains that the evidence showed conclusively that because of his mental condition he had an unreasonable belief that circumstances existed which would exonerate or justify the killings. He requests that we reduce the murder convictions to those for voluntary manslaughter.
3 The theory that an accused's mental abnormality can create a condition whereby he would have the type of unreasonable belief described in section 9-2(b) is authoritatively recognized. (See LaFave & Scott, Criminal Law § 42, at 329 (1972).) No Illinois cases on the question have been called to our attention. We need not decide whether this theory has application within the framework of the Illinois Criminal Code of 1961 because the evidence here was insufficient to require a determination that defendant had such a condition or such a belief.
Defendant testified that he drove into Decatur with Rosalyn Nesbitt, a girlfriend of his, sitting beside him as a passenger. Upon entering the city he became convinced that a car was following him. He claimed to have gotten away from the car by running two red stoplights. He stated that then:
"Rosalyn started moving away * * * as if she was going to do something * * *. She was looking at me real funny * * *. The next thing I know I stopped the car * * * and started shooting. Then I ran to my aunt's house. I took the gun and threw it in the bushes and I went knocking on the door. * * * Uncle Jim * * * started telling me `Donald, sit down on the couch and let me talk to you.'"
On cross-examination, defendant admitted that he knew Nesbitt was unarmed and that she had merely been bothering him.
Following defendant's arrest for the Nesbitt homicide, he was placed in a jail cell with Clyde Davis, a thin frail man who was uncommunicative. Shortly thereafter, while the two were unattended, defendant choked Davis and banged his head against a wall, killing him. On direct examination defendant attributed the killing to the jail attendant's having brought something to Davis which defendant thought was intended to harm him. On cross-examination, however, he admitted that Davis never said anything to him nor made threatening gestures toward him.
Moreover, Dr. Kiersch testified that defendant admitted to him that he "acted and played crazy." Defendant's theory that he had a cocaine-induced psychosis was countered by several State's experts who testified that cocaine usage would not produce such a result. Thus, in any event, the jury could have ...