Appeal from the Circuit Court of Cook County, the Hon. Dwight
McKay, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1983.
Following a jury trial in the circuit court of Cook County, defendant Dennis Williams was convicted of two counts of murder, two counts of aggravated kidnaping, and rape. A separate sentencing jury found the necessary aggravating factors and that there were no mitigating factors sufficient to preclude imposition of the death sentence. The court accordingly sentenced defendant to death for the murders and to concurrent extended terms of 60 years for the other offenses.
Defendant appealed directly to this court pursuant to article VI, section 4(b), of our 1970 constitution, and on April 16, 1982, we filed an opinion in which we affirmed defendant's convictions and death sentence over his objection, inter alia, that he was denied the effective assistance of counsel. While Williams' petition for rehearing was pending, a disciplinary case involving his attorney, Archie Benjamin Weston (In re Weston (1982), 92 Ill.2d 431), was orally argued in this court. As a result of the additional information with which we were presented, of which we had been unaware during the preparation and filing of our Williams opinion, we directed the clerk of this court to forward copies of the record, briefs and taped argument in In re Weston to counsel for both sides in Williams. We then requested and subsequently received suggestions from the attorneys concerning the possible relevance of the disciplinary matters to the capital case. We thereafter allowed Williams' petition for rehearing.
Williams and co-defendants Willie Rainge and Kenneth Adams were charged by information with the aggravated kidnaping and murders of Larry Lionberg and Carol Schmal, the rape of Carol Schmal, armed robbery, and armed violence. Another co-defendant, Paula Gray, was indicted several months later for the same murders and rape and for perjury. Mr. Weston represented Williams, Rainge and Gray; Adams retained separate counsel. The four were tried in September and October 1978 in one courtroom by two separate juries. One jury heard evidence relevant only to defendants Williams, Rainge and Adams, and the other jury heard evidence relevant only to Gray. Both juries heard evidence relevant to all four defendants. The procedure was suggested by the State because Paula Gray had made statements inadmissible against the others under Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620. The substance of the Bruton problem was also the basis of the perjury charge against Paula Gray. She had given sworn testimony to a grand jury implicating the other three defendants in the abduction, murders and rape. However, at their preliminary hearing she recanted her grand jury testimony under oath, claiming that the police had forced her to tell a "lie" to the grand jury. The State intended to use these statements in its case against Gray but realized that under Bruton they were inadmissible against Williams, Rainge and Adams.
Williams, Rainge, Adams, and Gray were convicted of murder and rape, Williams and Rainge were also convicted of aggravated kidnaping, and Gray was convicted of perjury. Williams and Rainge requested a new sentencing jury, which returned a death penalty verdict on February 6, 1979, against Williams. Rainge was sentenced to concurrent terms of natural life imprisonment for the murders and to extended terms of imprisonment for the other offenses. Adams was sentenced, after a bench hearing, to extended terms of imprisonment, and Gray, in a later hearing, was also sentenced to extended terms of imprisonment. Those convictions have been affirmed. People v. Gray (1980), 87 Ill. App.3d 142, cert. denied (1980), 445 U.S. 944, 63 L.Ed.2d 777, 100 S.Ct. 1340; People v. Rainge and Adams (1st Dist. June 7, 1982), No. 79-565 (petition for rehearing pending).
In In re Weston, the Hearing Board and Review Board of our Attorney Registration and Disciplinary Commission both recommended that respondent, Archie Weston, be disbarred because of misconduct involving his handling of the estate of his client, Ella C. Graham, who died intestate in 1974. In April 1978, a son of one of the heirs complained to the Attorney Registration and Disciplinary Commission. Respondent was informed of the complaint, and the Inquiry Board forwarded a copy of the complaint to the judge of the probate division of the circuit court of Cook County. In August, a rule was issued by that court upon respondent to show cause why he should not be held in contempt of court. After securing a continuance, respondent failed to appear in probate court in November 1978 and was removed as administrator. He was subsequently adjudged in contempt of court. (That order was later quashed after partial payment of amounts which the court had found owing.) The administrator de bonis non also filed a petition to surcharge respondent for waste and neglect, and a judgment for $23,000 was thereafter entered against him, apparently resulting in a sheriff's sale of his home.
The Hearing Board found that respondent neglected legal matters entrusted to him, that he committed acts prejudicial to the administration of justice and acts which intentionally caused damage and prejudice to his client, and that he commingled and converted a client's funds, all in violation of various disciplinary rules of the Illinois Code of Professional Responsibility. Respondent neither answered the disciplinary complaint nor appeared to defend himself. The allegations of the complaint thus stood admitted, and we held them adequately supported by the evidence. We accordingly ordered that respondent be disbarred. In re Weston (1982), 92 Ill.2d 431.
Williams urges that the matters disclosed by the record and proceedings in In re Weston provide further support for his contention that he was denied the effective assistance of counsel, whereas the State submits that the evidence of counsel's performance in an unrelated matter is irrelevant to the question of counsel's effectiveness in the capital case. We agree that ordinarily the record of counsel's performance at the trial in which his performance is questioned is the only relevant consideration in determining whether his client was afforded the effective assistance of counsel. We believe, however, that, in the unique circumstances of this capital case, fundamental fairness requires us to examine the additional information now before us concerning counsel's misconduct and the events occurring during the same period that he represented three defendants in a capital case to determine whether it has any bearing on the quality of that representation. We consider first, however, whether the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.
Resolution of factual disputes and the assessment of the credibility of the witnesses, is, of course, for the jury (People v. Carlson (1980), 79 Ill.2d 564, 583; People v. Zuniga (1973), 53 Ill.2d 550, 559), and we will not reverse a judgment of conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the guilt of defendant remains (People v. Lewis (1981), 88 Ill.2d 129, 151; People v. Carlson (1980), 79 Ill.2d 564, 583; People v. Clark (1972), 52 Ill.2d 374, 387).
The evidence showed that Larry Lionberg worked a night shift at a gas station at 180th Street and Halsted near Homewood. He was visited there by his fiancee, Carol Schmal, and another couple. Larry and Carol were last seen by their friends about 2:15 a.m. on May 11, 1978, although Larry apparently made a call to a former employer from the station about 2:30 a.m. At 6:30 a.m., the owner arrived at the station and found it unattended, open and ransacked. Some money and merchandise valued at $300 were missing. Police were called. Carol's car was found at the station; her purse was on the front seat.
The victims' bodies were found on May 12 at about 10:30 a.m. in East Chicago Heights. The investigating officer, P.J. Pastirik, testified that Larry was found face down in a nearby field, shot in the head twice and the back once. Carol was found in an upstairs room of a nearby abandoned townhouse at 1528 Canon Lane. Carol, also face down, had been shot twice in the head. She was clothed in knee-socks and a partially removed sweater and brassiere, and lying on a pair of jeans. A piece of plywood was covering the lower part of her body. The investigating medical officer said that she had been shot where she was found but could not say with certainty that Larry had been. Tests run on a vaginal swab taken from Carol at that time indicated that she had had intercourse within the past 36 hours. There was no trauma to the vaginal area; no foreign pubic hairs were found. Neither Carol's boots nor the murder weapon was recovered. Testimony indicated that bullet fragments recovered from each body had been fired from the same gun. Powder burns around Carol Schmal's wounds indicated the weapon was fired from a distance of six to 12 inches.
While Officer Pastirik was at the scene the substance of two anonymous calls was relayed to him. The calls came from an unidentified male with a "black voice" who said that the people who committed the murders were at the scene of the investigation. He also described a red Toyota and gave a license number reported to the officer as GA 1390. It is unclear whether the caller connected this number with the red Toyota. Officer Pastirik testified that as he and a partner walked towards a rather large crowd that had gathered, two black men began walking briskly away. The men were stopped and questioned when they reached a red Toyota parked nearby. Dennis Williams, Verneal Jimmerson and the car were taken to the station. Williams was never released. (The charges against Jimmerson were dropped when Paula Gray ...