APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. FITZGERALD, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Willie James Nutall, was convicted of murder following a jury trial and was sentenced to the penitentiary for a term of 22 years. Defendant raises three issues for review: first, whether the State proved him guilty beyond a reasonable doubt; second, whether the trial court should have, sua sponte, given a jury instruction on defendant's theory of the case; and, third, whether the representation provided defendant by his privately retained counsel constituted a denial of effective assistance of counsel.
Defendant was indicted on two counts of murder and two counts of armed violence as a result of the killing of Linda Williams. Defense counsel filed an appearance and, subsequently, made a "Motion in the Nature of Discovery" and filed a response to the State's discovery motion. On the day of trial, the State filed a supplemental answer to discovery listing additional witnesses who might be called during trial. It also recited incriminating statements of defendant which indicated prior threats against deceased by defendant and disputes between defendant and deceased, as well as a possible motive for the killing. This supplemental response also contained a reference to a holster which the State intended to use as evidence.
The State's first witness was Laura James. While driving her automobile, on September 1, 1978, at 1:40 in the afternoon, James saw a man and a woman walking on Homan Street north of Lake Street. They were about 50 feet from the intersection when she first noticed them. The man had on a security guard uniform and was about 5'10" to 6' tall, but James was unable to describe the woman. After James observed the two, she heard a shot, looked to her left, and saw a person fall to the ground. The man backed away holding something that appeared to be a gun in his hand. He then turned, running north on Homan and into an alley. James drove her car into the alley and observed a garbage man standing nearby. She asked him to join her and when he did, the two followed the man in the security guard uniform who was still running.
The State called Officer Cunningham as the second witness. He testified that he discovered the victim, Linda Williams. When he observed that there was still shallow breathing, despite a wound to her head, he took her to the emergency room.
Ben Smith, a maintenance man at Newark Electronics, was then called to the stand. He testified that defendant came to Newark Electronics between 2 and 2:30 in the afternoon on September 1. Defendant was dressed in his security guard uniform and wore a gun. When defendant gave Smith a bullet shell casing, Smith threw the casing into the street. Later that afternoon, John Burke, Smith's supervisor, told him to find it. The recovered casing was bent. Smith also testified that defendant told him that he had shot his girl friend. Defense counsel cross-examined Smith, establishing that defendant was nervous and excited, and that defendant had told Smith that his gun had been fired.
Horace Love, an employee of the Bureau of Sanitation, testified that he was working on the day in question. At about 1:30 p.m., he saw a man and a woman standing on the west side of Homan. After approximately 10 minutes, and during a period in which his attention had been diverted for about one minute, Love heard a shot. Prior to that time, the man had had his back to him and his left arm around the woman's neck. When he heard the shot, Love looked at the two people; the woman was on the ground and the man was running. Love affirmed James' testimony that the two of them had joined together to follow the fleeing man. The court then asked a few questions about the relative positions of defendant and the deceased.
The State next called John Burke who stated that he was at Newark Electronics on the day of the incident. Burke said that he had a conversation with Ben Smith and that there was a search for the shell casing. Burke testified that he held the shell casing until the police arrived. On cross-examination Burke disclosed that he was the security manager at Newark on the date in question. As a routine matter, he had placed the shell casing in an envelope on which he recorded the time and circumstances of recovery.
Vaughn Washington testified that on September 1, 1978, he was employed by District Security on the 4 p.m. to midnight shift. At 4 p.m. that day, he observed defendant enter the security office and state that he was late running to the office that day because he had been "in [an] auto accident and * * * had been taken down to the station by the police." Washington stated that defendant, three hours late returning to work, was still dressed in uniform with a weapon, holster, handcuffs, key, nightstick holder, and radio. His gun was attached to the holster on his right side. After defendant stated that he had been in an automobile accident, defendant began to remove his equipment from his belt. Defendant put his holster, which Washington described as a "4 inch, what they call a quick-draw" with a snap, on the desk.
The State asked Washington if defendant's actions were unusual. Washington replied that the man being relieved takes the weapon off and opens the chamber for inspection by the relief man. The relief man then checks the remaining equipment. Defendant laid a fully loaded (six rounds) Smith & Wesson .38-caliber four-inch special on the table, but the bullet pouch contained five rounds rather than the usual six. Washington testified that he notified his supervisor of the discrepancy and later gave the investigating policeman the gun and bullet pouch. Washington then identified a gun, a bullet pouch, and a holster which looked like the ones which defendant had worn. Washington demonstrated how the weapon fit into the holster: "The snap goes over the hammer bullet [sic] like that." Defense counsel cross-examined, establishing that Washington's supervisor noted the serial numbers on the gun but that the holster was not turned over to the police. He also established that the security force had one holster which was intended to fit a five-inch rather than a four-inch revolver.
The State next called the arresting officer, Investigator McCarthy, to testify. He stated that he went to the apartment where defendant was known to reside, where he saw defendant through the open door. McCarthy then effected the arrest. The witness next went to the security office where he received for inventory the weapon, bullet pouch, and five rounds of ammunition.
Officer Nielson, the assistant chief firearms examiner for the Chicago Police Department, testified next. He detailed his experience and training and described the tests made on the weapon and shell casing. In his opinion, the recovered casing matched the test cartridge casing fired from the recovered weapon. He also performed a trigger pull test on the weapon to determine how much force would be required to trip the trigger and cause the gun to fire. In his opinion the gun could not discharge without at least a three-pound pull on the trigger. He also found the safeties on the gun to be in good working order.
Dr. Eupil Choi, the examining pathologist, testified. He stated that he had performed a post-mortem on the victim and determined that a bullet wound in the "right temple between the eye, right eye and the right ear above earlobe level" was the cause of death. He also opined that the path of the bullet was "backwards, leftwards and downwards."
At the close of the State's case, the prosecution introduced, inter alia, the holster, shell casing, and bullet pouch into evidence. Defense counsel strongly objected to introduction of the holster, because of the State's purported failure to establish a chain of evidence, but counsel withdrew his previous ...