APPEAL from the Circuit Court of Madison County; the Hon. JOHN
DAY, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Alroy J. Gracey, Jr., appeals his conviction of the crime of murder entered by the circuit court of Madison County after a trial by jury. On appeal defendant raises several related issues, but in view of our disposition we need only determine whether defendant was deprived of fundamental fairness because of the restrictions placed upon his defense.
The events giving rise to the murder charge occurred during the late evening hours of November 1, 1979, and the early morning hours of November 2, 1979. It was undisputed that defendant and the decedent, Terry Stockman, had been together at the same tavern only a short time before decedent was found shot to death in his car outside the tavern, and that both men had been drinking heavily during the evening. It was also undisputed that a bullet lodged inside the passenger door of the car in which decedent was found matched test firings from a gun found in defendant's home pursuant to a search warrant.
In view of the fact that both men had consumed substantial amounts of alcohol, and in view of evidence to suggest that decedent may have threatened both defendant and defendant's son, the case presented several potential defense-related issues. Accordingly, very early in the proceedings, even prior to the time it furnished discovery to the defense, the prosecution requested a disclosure of any defenses which would be used at trial. Defense counsel's written reply, filed only 24 days after the shooting, stated:
"The Defendant not being schooled in law, does not know what defenses will be made at the trial or hearing, but that whatever defense or defenses are determined upon by his attorney in the analyzing of the facts and reports as hereafter to be provided by the State will be utilized."
Defense counsel never filed an additional written response concerning defenses that would be raised and his initial oral response during an early pretrial hearing was similarly ambiguous. At that time the following colloquy took place:
"PROSECUTOR: Additionally, Your Honor, I would ask * * * whether or not any affirmative defenses would be presented * * * [but] the burden of proof is not an affirmative defense.
DEFENSE COUNSEL: That is his defense that he didn't shoot the man.
PROSECUTOR: You don't have an alibi or anything like that?
DEFENSE COUNSEL: By alibi, that he was somewhere else?
DEFENSE COUNSEL: He was nowhere else."
A month before trial defense counsel received an amended pathologist's report which indicated that the path of the bullet through decedent's head was from left to right rather than right to left as originally reported. Despite the fact that this information corroborated the State's theory that defendant shot decedent while standing outside the driver's side of decedent's car, defense counsel failed to change his position that defendant's only defense was the State's inability to sustain its burden of proof. At a subsequent hearing occurring only two weeks before trial, the following exchange took place:
"PROSECUTOR: The only thing I have, Your Honor, is I don't anticipate filing any other charges * * * because at this time I understand the defense is the State cannot prove beyond a reasonable doubt or something of that nature. If there were to be the defense of manslaughter or something like that, I may consider filing other charges. But as far as I know and I have no written confirmation ...