APPEAL from the Circuit Court of Cook County; the Hon. BRIAN
L. CROWE, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, William Lewis, was charged with the murder of Timothy Gilfillan. A jury found defendant guilty of that crime and the court sentenced him to a term of 20 to 25 years. In a trial without a jury, a co-defendant, Brian McCarthy, was found not guilty of the same crime. On appeal defendant contends that the trial court erred in failing sua sponte to instruct the jury as to voluntary manslaughter; that he received ineffective assistance from his privately retained counsel; that he was prejudiced by the bifurcated procedure by which the trial court conducted defendant's jury trial at the same time it heard McCarthy's trial without a jury; that the court erred in allowing into evidence, as a dying declaration, certain prejudicial hearsay testimony; and that the court erred in allowing jurors to take notes during trial.
On April 13, 1975, at 1 a.m., the deceased, who died five hours later, was shot by defendant. Defendant maintained that he shot the deceased in self-defense. McCarthy was charged with murder on an accountability theory. Defendant and McCarthy were members of a street gang known as the Latin Kings, while deceased was a leader of a rival gang known as the Simon City Royals. A "treaty" between the two gangs had been broken two weeks earlier when McCarthy started a fight by attempting to steal Royals' sweaters.
The State presented three occurrence witnesses: Michael Walden, Steven Trumbo and Eugene Dodaro. All were friends of the deceased; Walden and Trumbo were members of the Royals. On the evening in question they, along with deceased, were in an apartment in a building near Leland and St. Louis in Chicago. At the corner was a once graffitimarred building which had just been painted by members of the Royals as a community project. The Royals were concerned that a rival group, such as the Kings, would mark the building. The deceased and Walden went outside to check the condition of the refurbished building, and observed defendant, McCarthy, a young man named Pothead, and a young woman. The three men were Kings. Deceased and Walden retreated to the apartment and notified the others. The four men then exited the building through the rear. For protection, Walden and deceased picked up sticks which had been used to stir paint. The pair concealed the sticks, and the four men walked towards the corner in a single file manner. The three witnesses testified that they saw defendant raise his hand and fire a shot. After the shot was fired, the deceased ran between two parked vehicles. Dodaro testified that he fell to the ground when he heard the first shot. Upon standing up, he saw defendant shoot in a downward position toward the ground three times, each time shouting a Latin King slogan. Walden and Trumbo also testified that they heard defendant call out and saw him fire three shots toward the ground. Walden and Trumbo ran towards the apartment, turned, and noticed that deceased was not with them. Walden searched and found him in the hallway of the apartment building, bleeding and in pain.
Dodaro testified that after the shots were fired he entered his automobile and sped towards defendant and drove past him. Dodaro brought the automobile to a screeching halt when he saw Pothead. Dodaro alighted to chase Pothead, but stopped when he heard a shotgun blast and turned to see the windshield of his automobile blown out. Dodaro drove away until he found police officers.
The medical examiner testified that the autopsy revealed that the deceased sustained four bullet wounds. The bullets entered the deceased's body at differing angles, indicating that the shots were not fired simultaneously.
Terry Richards, the young woman who was with defendant on the evening in question, testified for defendant that she, another woman, and the three men were enroute to a friend's home. When they reached the corner of Leland and St. Louis, the deceased and Walden came running from the alley swinging bats and shouting "Royal Love." An automobile then sped down the street and over the curb near where defendant stood. When defendant ran into the street and fired one shot in the air, four persons emerged from the automobile and moved towards defendant. Defendant fired three shots nearly simultaneously.
• 1 We initially shall consider defendant's contention that he was prejudiced by the bifurcated trial procedure employed by the trial court.
McCarthy's trial without a jury was conducted at the same time as defendant's jury trial. During voir dire the judge determined that McCarthy's accountability defense might result in a strategy of deflecting fault from McCarthy to defendant and could unduly prejudice defendant. The judge thereupon instituted a procedure whereby direct examination of all State witnesses was presented before the jury, but cross-examination by McCarthy's counsel occurred outside the jury's presence. The judge additionally permitted defendant's counsel to re-cross-examine any State's witness after McCarthy's counsel had cross-examined so that defendant's counsel could elucidate any new matters brought out by McCarthy's counsel.
We perceive no prejudice to defendant through use of this procedure. Indeed, defendant benefited through his counsel's opportunity to sort through the cross-examination conducted by McCarthy's counsel and to select any positive aspects for presentation to the jury. Moreover, the judge thoroughly explained the procedure to the jury to alleviate any potential for confusion. The holding in People v. Bradley (1964), 30 Ill.2d 597, 198 N.E.2d 809, upon which defendant relies, is readily distinguishable from the present case. There, both defendants on trial for armed robbery proceeded on a theory of improper identification. The State's key witness identified both defendants in the presence of the jury. Because the defenses were identical and because the witness' identification was crucial to both defendants, the court appropriately held that the jury should have heard the defense evidence presented by co-defendant. Unlike Bradley, the present case presents distinct theories of defense. The cross-examination by McCarthy's counsel sought to discredit any testimony which placed McCarthy near the scene or made him accountable for the crime. On the other hand, defendant's position was that he shot the deceased but that he acted in self-defense. Testimony elicited by McCarthy's counsel may not have assisted defendant in this theory and, as the trial judge feared, may instead have prejudiced defendant.
Moreover, based on these distinct defense theories, defendant was not entitled to have the jury hear what, defendant claims, amounted to the "piercing" cross-examination by McCarthy's counsel. Both attorneys successfully impeached Walden by eliciting the testimony that a pending gun charge had been dropped in exchange for his present testimony. McCarthy's counsel additionally elicited from Walden that Dodaro tried to run defendant over, but only after defendant had fired the shots. Since defendant's self-defense claim depended on his firing the shots after the attempt to run him over, the omission of this testimony was not prejudicial to defendant. We also note that the trial court abrogated the bifurcated procedure during trial upon determining that McCarthy's counsel was not trying to project blame upon defendant. Defendant was not denied a fair trial by the procedure employed by the trial court.
Defendant cites the failure of the trial court to recall Trumbo as a witness after McCarthy's counsel had cross-examined him as an example of the prejudice caused by the bifurcated trial procedure employed by the trial court. Trumbo had testified on direct examination that after he saw defendant raise his arm and fire the first shot, he ran but turned to see defendant fire the next three shots. On cross-examination by defense counsel, Trumbo replied in the negative when asked if he told the police he only heard the last three shots. In later examination by McCarthy's counsel outside the jury's presence, Trumbo stated that he earlier told the police he heard the last three shots, but did not see defendant fire them. On the following day, defense counsel asked that he be permitted to examine Trumbo further. The trial court acquiesced, but Trumbo was not in court, and the trial court indicated that defense counsel could renew the request. Counsel subsequently renewed the request, but Trumbo was not recalled.
Defendant was not prejudiced by what appears to be an inadvertent failure to recall Trumbo as a witness. Defendant's claim of self-defense rested on Terry Richards' testimony that defendant did not shoot until after Dodaro attempted to run down defendant with his automobile. Walden and Dodaro testified, however, that the vehicle was driven in defendant's direction after shots had been fired. Trumbo testified that he did not see Dodaro during the course of the shooting. Impeachment on the collateral matter of whether he had heard the last three shots, as opposed to observing defendant fire them, bears little on defendant's self-defense theory where it was undisputed that defendant did the shooting. Defendant was not prejudiced by the omission of this impeachment nor by the bifurcated trial procedure.
• 2 We next consider whether it was the duty of the trial court to instruct the jury on its own initiative as to the lesser included offense of voluntary manslaughter. Where the evidence would sustain a conviction for voluntary manslaughter it is error for the trial court to refuse a tendered instruction on that offense. (People v. Handley (1972), 51 Ill.2d 229, 282 N.E.2d 131; People v. Joyner (1972), 50 Ill.2d 302, 278 N.E.2d 756.) In the absence of such a tender, however, the trial court has no duty to instruct the jury sua sponte on voluntary manslaughter. (People v. Taylor (1967), 36 Ill.2d 483, 224 N.E.2d 266.) In Taylor, as here, defendant argued on appeal that the trial court should be required on its own initiative to instruct the jury as to manslaughter whenever the evidence would sustain such a conviction. In rejecting the argument, the court stated at pages 490-91:
"When the evidence will support either charge and the prosecution does not tender an instruction on the lesser offense, the defendant has a choice, subject to the judge's authority to instruct sua sponte, of submitting one or both instructions. Different views have been expressed as to the consequences of submitting both instructions. It has been said that `merciful, or weak jurors may disregard even overwhelming proof of culpability and acquit entirely or convict of a lower crime than the evidence reflects.' [Citation.] It has also been said that to give both instructions `is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence.' [Citation.]
It may be that more accurate results would be obtained if the trial judge was required to instruct as to both the greater and the lesser offenses whenever the evidence would sustain either verdict, and in some jurisdictions such a requirement has been imposed by statute or by decision. [Citation.] But we are not sufficiently persuaded that we are willing to eliminate by judicial decision an established procedure that has long been considered to operate for the benefit of those accused of crime. We therefore adhere to our present procedure, and hold that the trial judge did not err in failing to give a manslaughter instruction on his own initiative."
(See also People v. Spataro (1978), 67 Ill. App.3d 69, 384 N.E.2d 553; People v. Hall (1975), 25 Ill. App.3d 992, 324 N.E.2d 50; People v. Miller (1974), 21 Ill. App.3d 762, 316 N.E.2d 269; People v. Mitchell (1973), 12 Ill. App.3d 960, 299 N.E.2d 472.) The rule that a failure to tender an instruction in the trial court precludes a claim of error on review stems in part from principles of waiver. (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331.) Significant strategy considerations may influence a defense counsel's decision not to present the jury with the full spectrum of lesser included offenses where a complete defense of self-defense is claimed. (People v. Taylor.) Hence, where the defense wholly refrained from tendering an ...