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People v. Bell

OPINION FILED APRIL 13, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FREDDIE BELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS FITZGERALD, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Jerry Steward and Freddie Bell (defendant) were indicted for armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2). Jerry Steward was tried by a jury in absentia, found guilty, and sentenced to 18 years. After a bench trial, defendant was found guilty and sentenced to 28 years. The trial court reduced defendant's sentence to 22 years. In defendant's appeal to this court he contends his counsel was ineffective because of faulty hearing and the sentence is excessive.

Since no issue is raised regarding sufficiency of the evidence to prove guilt beyond a reasonable doubt, we will summarize the testimony. Three credible witnesses, all drivers for United Parcel Service, testified they were held up by defendant and co-defendant during early March of 1979. At least two of the drivers were threatened with a gun and money was taken from each of them. Defendant and co-defendant were positively identified at lineups and in court. One driver knew defendant from participation in sports together.

Charles Rowen, then an inmate of the county jail, testified he was with defendant in a bar during the hours of commission of the crimes on each of the two days involved. Defendant testified he was at this bar on each of the days from 10 a.m. continuously until after 6:30 p.m. He denied guilt of the robberies. He had previously served in the penitentiary. He owned the gray overcoat which appeared in his photograph. He knew the co-defendant Jerry Steward.

We conclude the evidence proves defendant guilty as charged beyond any reasonable doubt and with complete certainty.

I.

Defendant first contends he was denied effective assistance of counsel because the hearing impairment of his retained counsel prevented the lawyer from adequately hearing testimony and rulings.

The record reflects that during hearing of defendant's pretrial motion to suppress defendant's trial counsel experienced some difficulty in hearing. On several occasions he asked the witness or the judge to repeat what had been said. The trial judge appointed two public defenders to sit at the defense table with defendant's counsel for completion of the hearing and during trial. The judge made it clear the public defenders would not serve as defendant's counsel but would merely make sure defendant's trial counsel "would hear everything that occurred in the courtroom." The judge asked defendant if that arrangement was satisfactory to him and defendant agreed. At a later stage in the trial before the State called their last witness, the court again asked defendant if that was "agreeable" and defendant responded, "Yes, Judge."

To establish incompetence of counsel, defendant must show "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. Carlson (1980), 79 Ill.2d 564, 584-85, 404 N.E.2d 233; see People v. Witherspoon (1973), 55 Ill.2d 18, 21, 302 N.E.2d 3.) "Proof of prejudice cannot be based on mere conjecture [citations] nor can a defendant rely upon speculation as to the outcome of his case had the representation been of higher quality [citations]." (People v. Hills (1980), 78 Ill.2d 500, 505-06, 401 N.E.2d 523.) "[A] defendant is entitled to competent, not perfect, representation (People v. Berland (1978), [74 Ill.2d 286, 311, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64]), and we do not believe that the Constitution requires a new trial for every defendant whose counsel errs at trial, particularly in the absence of a demonstration that the outcome of a new trial would probably be different." (People v. Greer (1980), 79 Ill.2d 103, 121, 402 N.E.2d 203.) Furthermore, "[c]ompetency is determined from the totality of counsel's conduct at trial." People v. Murphy (1978), 72 Ill.2d 421, 437, 381 N.E.2d 677.

• 1 After reviewing the record, we find defendant's trial counsel was not incompetent and defendant's rights were fully protected. There is no evidence that the lawyer's very slight loss of hearing prevented him from effectively representing defendant. The trial court stated, "I might add, there is no question that [trial counsel] is not death [sic]. He is not death [sic]. * * * I would think very likely [he heard] a hundred percent of the things that go on in the courtroom." In our opinion, the trial court rectified any possible problem by appointing the public defenders to sit with defendant's counsel.

• 2 Defendant also contends certain conduct on the part of his trial counsel demonstrated incompetence, such as failure to file a pretrial motion for discovery until two months after the cause was set for trial; his reference to a lineup as a showup; and his improper impeachment of a witness and subsequent instruction by the trial court. "But errors in judgment or trial strategy do not establish incompetency." (Murphy, 72 Ill.2d 421, 437; Witherspoon, 55 Ill.2d 18, 22.) Furthermore, competency is determined from the totality of counsel's conduct. (Murphy, 72 Ill.2d 421, 437.) In reviewing the entire record, we therefore cannot say defendant was deprived of effective assistance of counsel.

In fact, the eminently able and experienced trial judge stated expressly it would be a "substantial disservice" to the defendant "to have anyone else other than" his trial attorney. The trial judge told defendant his attorney was "fully competent to represent you." In addition, the authorities above cited require a showing of substantial prejudice to defendant to support a contention of ineffective legal services. In view of the overwhelming evidence of guilt, we find no possible prejudice in the case before us.

• 3 Defendant contends his trial counsel failed to object to the State's introduction of other crimes, but "incompetency is not established by mere failure to object" to evidence even if it was inadmissible. (Murphy, 72 Ill.2d 421, 438.) We add parenthetically the assailed evidence was competent. See People v. Foster (1979), 76 Ill.2d 365, 374, 392 N.E.2d 6, and People v. Baptist (1979), 76 Ill.2d 19, 27-28, 389 N.E.2d 1200.

Defendant relies on United States v. Rogers (E.D.N.Y. 1979), 471 F. Supp. 847, where an 84-year-old defense attorney's hearing problems were among many factors which led to his disqualification. Those factors included his failure to pursue needed discovery, failure timely to move for a bill of particulars, severance, and change of venue; his lack of preparation for witness examination; ...


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