APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. MANNING, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Tom Henry was convicted of murder following a bench trial in the Circuit Court of Peoria County and sentenced to 20 years' imprisonment. In his appeal he contends that he was not proved guilty of murder beyond a reasonable doubt, that the court erred in denying his request for an evidentiary hearing on his post-trial motion to suppress evidence, and that the court erred in denying his post-trial motion to reopen the evidence to expand upon testimony presented at trial.
A brief recitation of the facts, as revealed by testimony at the defendant's trial on January 21, 1981, is warranted before addressing the issues raised on appeal. The defendant and the deceased, Lynn Sweeney, lived together in an apartment in Peoria. On Saturday, September 20, 1980, they were observed together attending a karate exhibition. There was no apparent animosity between the two. On Sunday, Sweeney telephoned a friend, John Behrends, and told him that she feared that people from Chicago, with whom Tom had had certain dealings in drugs, were coming down to kill Tom. On Monday, September 22, Mr. Behrends telephoned after work but no one answered at the apartment. That evening, Behrends stopped some policemen and told them of his concern for the well-being of his friend, Lynn Sweeney. Behrends next drove to the apartment where he was met by Officer Mike Flatako of the Peoria Police Department. Behrends and Flatako proceeded through an unlocked security door and into the porchway. From a window, Behrends observed a body lying in the bedroom doorway of the apartment.
Flatako looked in the window when Behrends started crying and observed the body as well. He drew his revolver and checked the door to the apartment. It was unlocked. Upon entering the apartment, Flatako smelled putrefaction. He approached the nude body of Lynn Sweeney, lying in the bedroom doorway, with a gun in her right hand, observed that she was dead and then secured the apartment for the crime investigators.
The Peoria County coroner's physician, Phillip Immesoete, testified that the cause of Sweeney's death was a gunshot wound to the head, just over the left eye. Sweeney appeared to have died about three days prior to the autopsy which was conducted on Wednesday, September 24. The trajectory of the bullet was on a horizontal plane from the front to the back of the skull.
Further testimony established that the gun found at the scene belonged to the defendant. His thumbprint was identified on the gun. The bullet found lodged in Sweeney's skull had been fired from that gun. The fatal shot had been fired at a distance of two to six feet from muzzle to target.
James Swofford, the defendant's cousin, testified that he had discussed the defendant's fear of being killed by the Chicago dealers with him several times during the period just prior to the shooting incident. On September 28, Swafford received a phone call from the defendant. The defendant was crying hysterically and said that Sweeney had died and that he could not go on living without her. He stated that he had tried to commit suicide with an overdose of sleeping pills, but that he had been unsuccessful.
On October 2, 1980, Swofford received another call from the defendant in which they again discussed the defendant's desire to commit suicide. The defendant refused to reveal his whereabouts but stated that he would recontact Swofford when he could get closer to the Peoria vicinity.
Approximately a week later, Swofford received a third telephone call from the defendant. On this occasion, the defendant seemed less upset and was concerned about returning to explain the circumstances surrounding the day of the shooting incident. The defendant related that his life had been threatened by some men from Chicago to whom he owed money. He explained that on the day in question, the defendant and Sweeney were in the bedroom of their apartment when they heard banging on the front door. The defendant said he thought it was the men from Chicago and proceeded to the door with his gun in hand. Sweeney yelled or stated that that was no way to handle things and that they should just act as if they weren't in the apartment. At this point, the defendant turned around and the gun discharged. Apparently the person(s) at the door fled because there was no one there when the defendant opened the door. The defendant next tried to talk to Sweeney and discovered that she had been killed. He tried to shoot himself as well, but was unable to do so.
About a week after this conversation, the defendant telephoned Swofford again and arranged to meet Swofford in Texas. The two men returned to Illinois together, and ultimately the defendant surrendered himself to the Peoria authorities, whereupon he was immediately placed into custody pursuant to an outstanding warrant for his arrest.
At the close of the evidence, the trial court took the matter under advisement. Six days later, on January 27, 1981, the court announced a verdict of guilty of murder as charged. Prior to the defendant's post-trial hearing, he dismissed his counsel and was thereafter represented by substituted counsel, who continued to represent the defendant on appeal.
We first address the defendant's contention that the trial court erred in denying his request for an evidentiary hearing on his motion to suppress evidence, which motion was presented for the first time after the trial court had returned its verdict of guilty, as aforesaid. The underlying basis for the motion was that Officer Flatako violated the defendant's fourth amendment right to be free from unreasonable search and seizure when he made his warrantless entry into the defendant's apartment. On appeal, the defendant does not deny that he had notice of the grounds for making the motion prior to trial. Rather, he contends, as was argued by present counsel in the trial court, that the decision not to proceed with the motion prior to trial was the result of inadequate investigation and misfeasance on the part of the defendant's trial attorney.
Failure of counsel to file a motion to suppress evidence is not per se incompetence. (People v. Ruple (1980), 82 Ill. App.3d 781, 787, 403 N.E.2d 129, 133-34, quoting People v. Mitchell (1979), 78 Ill. App.3d 851, 853-54, 397 N.E.2d 569, 570-71.) "[T]o successfully establish incompetence of counsel, [the] defendant must demonstrate actual incompetence, as manifested in the performance of his duties as trial attorney, which resulted in substantial prejudice to the defendant without which the outcome would probably have been different." (People v. Ferguson (1981), 99 Ill. App.3d 779, 785, 425 N.E.2d 582, citing People v. Greer (1980), 79 Ill.2d 103, 402 N.E.2d 203.) Although not raised in defendant's post-trial motion, the defendant nonetheless presented testimony at the hearing on the post-trial motion to suppress as an "offer of proof" to support his oral argument that the defendant was deprived of effective assistance of trial counsel.
• 1 We have reviewed the record on appeal, including the offer of proof, and find that the record viewed in its entirety fails to disclose that the defendant's trial counsel was incompetent. Whether the defendant's motion to suppress, if filed timely, would have been successful or not is not so clear as to admit of only the conclusion that the motion would have been successful. We do not pass judgment on the merits of the defendant's motion. Nor do we hold that the defendant's counsel might not have been better advised to pursue a timely notice to suppress based on the facts before us. We ...