Appeal from the circuit court of Du Page County, the Hon.
Bruce R. Fawell, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1983.
In a jury trial in the circuit court of Du Page County defendant, James Devin, was convicted of the murder of Scott Brunoehler, a fellow inmate in the Du Page County jail. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) the People requested a sentencing hearing. The jury found that there were present one or more of the aggravating factor set forth in section 9-1(b). Following the consideration of aggravating and mitigating factors the jury found that there were no mitigating factors sufficient to preclude a sentence of death (see Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) and returned a verdict directing the court to sentence defendant to death. Defendant was sentenced, and the sentence was stayed (73 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603).
The testimony of several of the inmates of the tier in which defendant and the deceased were being held shows that defendant had suggested that there be a "blanket party" for Brunoehler. A blanket party was defined as a form of harassment in which a blanket is thrown over the victim and the victim is then punched and kicked through the blanket. On the day on which the blanket party occurred, one of the inmates had ripped a bed sheet into three strands and another inmate, Robert Gangestad, had started braiding the strands into a rope. Defendant, apparently dissatisfied with the way in which the strands were being braided, took over and braided the rope himself. That night defendant, accompanied by Billy Hopson and Robert Gangestad, went to Brunoehler's bed. While Gangestad held Brunoehler's arms and Hopson held his feet, defendant put the rope around Brunoehler's neck and the remainder underneath his knee, and then fell on the rope. After Brunoehler's body went limp, he was dragged to the dayroom and suspended from a lamp. Several inmates testified that they had seen various portions of this sequence of events or had heard gurgling noises which sounded like someone unable to breathe.
A jail guard testified that he saw Brunoehler's body hanging in the dayroom. He climbed up the bars and cut the body down. The jail medical officer testified that he saw two rope burns on the right side of Brunoehler's neck, one seemed to parallel the ground and the other slanted up toward the top of the neck.
An inmate testified that after Brunoehler's death he was confined in the same tier as defendant. Defendant described the incident, and said that the victim's eyes popping out, his face puffing up, and his urinating while choking to death were "really dynamite." Defendant told him that he killed Brunoehler hoping that at first the authorities would think it was a suicide. Later, defendant planned to implicate two other inmates in the tier, who were notorious in Du Page County, and who defendant believed the State really wanted to have imprisoned for a long time. For his coming forward, defendant believed he would receive more lenient sentences for the armed robbery charges for which he was being held. Defendant explained that if the plan backfired he would probably be found guilty of voluntary manslaughter. The State would probably accept a plea bargain in order to avoid a jury trial. The witness admitted on cross-examination that he was defendant's partner in a series of armed robberies of chain restaurants and that at the time of his arrest defendant had told the police that the witness was his accomplice. He stated that he received nothing from the State in consideration of his testimony.
The jury found defendant guilty of murder. At the second phase of the trial, the jury found at the time of the offense defendant was over 18 years of age and that he had murdered a fellow jail inmate. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(2).) At the third phase, the jury considered evidence in aggravation and mitigation and found no mitigating factors that would preclude the imposition of the death penalty.
Defendant's first claim of error concerns the jury's viewing of the portion of the jail where the offense was allegedly committed. At the conclusion of opening statements, the circuit court, defense counsel, defendant, and the State's Attorney retired to the judge's chambers to discuss the procedures to be followed in conducting the "view" to which defense counsel and the State's Attorney had stipulated. The court and counsel discussed the path that the jury would take through the jail and what would be pointed out to them. After counsel had agreed to the procedure, the court asked if defendant was going to go with them. Defense counsel replied, "He will stay here but I am going." The court asked if anyone wanted the court to go along, and the following colloquy ensued:
"MR. ANDERSON [assistant State's Attorney]: No.
MR. EMERY [assistant State's Attorney]: No.
MR. ANDERSON: Do you want the judge to go?
MR. HEIDECKE [defense counsel]: Are you going?
THE COURT: There is no reason I have to go, is there?
MR. HEIDECKE: Not that I know of.
MR. EMERY: We are not ordering the court to go."
Defense counsel made no mention of any unusual or objectionable occurrence during the view, and no mention of the view was made in defendant's post-trial motion.
Defendant contends that his constitutional rights to due process of law and confrontation were violated because the court ordered a view of the scene of the crime and did not attend the view; that when the jury viewed the premises defendant was not present and had not personally waived his right to be present; that a court reporter was not in attendance at the time; and that the jury was placed under the control of a deputy sheriff who was not appropriately sworn to protect the jury. The People contend any error resulting from the failure of the defendant and the circuit court to be present at the viewing of the jail premises was waived. On this record we could hold that the alleged error was waived, but in view of defendant's contention that he was denied a substantial constitutional right, we elect to review it.
Because his absence might affect the fairness of the proceedings an accused has the right to be present at all stages of the trial. (Faretta v. California (1975), 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525.) At common law a viewing of the premises was not considered a part of the trial. (Snyder v. Massachusetts (1934), 291 U.S. 97, 107, 78 L.Ed. 674, 679, 54 S.Ct. 330, 335.) Our review of the authorities shows that only in those jurisdictions where a statute specifically requires the court's presence during a viewing has its failure to be present been held to be error. (Compare State v. Rohrich (N.D. 1965), 135 N.W.2d 175, 180, and McCollum v. State (Fla. 1954), 74 So.2d 74, 76-78 (en banc), with State v. Suber (1911), 89 S.C. 100, 101-02, 71 S.E. 466, 467, and State v. McClurg (1931), 50 Idaho 762, 792-95, 300 P. 898, 909-11; see also Annot., 47 A.L.R.2d 1227, 1228-29 (1956).) The record shows that the circuit court gave carefully detailed instructions concerning the manner in which the viewing was to be conducted and that defense counsel stated he would be present. Under the circumstances we find that no error resulted from the failure of either the court or the defendant to be present when the jury viewed the premises.
We have considered defendant's arguments that comments made by the State's Attorney during closing argument indicate that during the viewing there must have been considerable colloquy and discussion between the jury and the officer who was showing them the premises. Clearly the State's Attorney's comments were based on evidence adduced at the trial, and defendant's contention concerning the comments and colloquy is based on pure conjecture.
Citing Beck v. Alabama (1980), 447 U.S. 625, 65 L.Ed.2d 392, 100 S.Ct. 2382, defendant contends that the circuit court erred in refusing to give two instructions on voluntary manslaughter submitted by defendant. In Beck the defendant was convicted of murder committed during the course of a robbery and sentenced to death. On review the Alabama Supreme Court affirmed. The Supreme Court reversed on the ground that the sentence of death may not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense when the evidence would have supported such a verdict. Beck is clearly distinguishable for the reason that the record shows that in this case the evidence would not have supported a verdict of manslaughter.
Defendant contends next that the circuit court erroneously refused to give an instruction on involuntary manslaughter. Defendant argues that there was "substantial" evidence supporting an involuntary-manslaughter instruction. Specifically, defendant states that uncontradicted testimony established that blanket parties did not ordinarily involve inflicting serious injury to the victim, and that "they" were not going to hurt Scott Brunoehler. The record shows that Hopson and Gangestad testified that they were surprised when defendant placed the rope around Brunoehler's neck and "kneedropped" on the rope. In contrast, several witnesses testified that defendant admitted his intent to murder Brunoehler. There was no evidence to support the tendered instruction on involuntary manslaughter, and refusing to give it was not error.
Defendant contends that his constitutional rights to due process and effective assistance of counsel were denied him in that "agents" of the State's Attorney's office surreptitiously overheard conversations between defendant and his trial counsel and because the People purposely "placed" potential witnesses near defendant in order to obtain a confession from him. Defendant also suggests that the State attempted to prevent defendant from acquiring counsel after his indictment. We find nothing in the record to support these arguments, and we decline to consider them.
Defendant contends that his constitutional rights to representation by counsel and due process were violated by reason of ineffective assistance of counsel afforded him at trial by his court-appointed lawyer. He concedes that the record shows adequate preparation by trial counsel but argues that in a case where the death penalty could be imposed no lawyer should be appointed who has not tried at least 100 felony cases and 10 murder cases. We are in complete agreement that it is desirable to provide representation by experienced counsel, but we do not agree that defendant did not receive effective assistance of his trial counsel. The record shows ...