Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Steigmann, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendants, Arthur Martin and Darnell Jenkins, were charged in a four-count indictment with the murder and armed robbery of Joshua Beasley. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(1), (a)(2), (a)(3) and 18-2.) In a bench trial, both defendants were found guilty on all counts and judgment was entered accordingly. Defendants were sentenced to serve concurrent terms of 30 years for murder and 20 years for armed robbery in the Illinois Department of Corrections. On appeal defendants contend that they were deprived of their right to the effective assistance of counsel; that they were denied a fair trial by the prosecutor's suggestions that the testimony of certain witnesses was the product of intimidation; that they were not proved guilty beyond a reasonable doubt; that the trial court erred in denying their motions for a new trial; that the trial court abused its discretion in sentencing defendants to 30 years' imprisonment for murder; and that they were improperly convicted of both armed robbery and murder. For the reasons hereinafter stated, we affirm the convictions and sentences for armed robbery and for murder under the first count of the indictment (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(1)) and vacate the convictions for murder under the second and third counts of the indictment (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a)(2), (a)(3)).
The victim, Joshua Beasley, resided in an 11th floor apartment in a Chicago Housing Authority facility located at 2145 West Lake Street in Chicago (2145 building). Lena Mae Beasley, his first wife, testified that at approximately 6 p.m. on Sunday, January 27, 1980, Beasley accompanied her from his apartment to the ground floor. Upon reaching the ground floor, Mrs. Beasley stepped out of the elevator and a young black man ran past her and jumped into the elevator. Another young man in the courtyard of the building "hollered at him" to hold the elevator. In the courtyard two men appeared to be forcing a third man towards the elevator. Mrs. Beasley stated that all of the men were "in their twenties" but could not describe them in any greater detail because it was too dark. She looked back at Beasley, who was still in the elevator, to try to get his attention to tell him something was wrong. Beasley asked her what she was looking at but she was afraid to answer and hoped that he would "catch her eye" and get out of the elevator. Beasley told her not to stand there because it was getting dark and she had a bus to catch. Mrs. Beasley then walked to the bus stop. Beasley was wearing a white fur hat, a three-quarter length brown leather jacket with buttons, black leather gloves, pants and a sweater. He was also wearing a birthstone ring.
Perry Lewis, who was 17 years old at the time of trial, testified that he was playing on the stairs in the 2145 building with his 12-year-old cousin, Odessa Turner, when he heard a moan on the 11th floor. Lewis walked to the stairwell of the 11th floor where he saw both defendants, whom he had known for three years, and a third unidentified man with Joshua Beasley. Jenkins and the third man were holding Beasley while Martin stood in front of him demanding his money. When Beasley replied that he had none, Martin searched Beasley's pockets, found his wallet and said, "I thought you didn't have any money." Beasley pleaded with Martin, saying, "I need this money very bad, I need it badder than you do." According to Lewis, Martin then began striking Beasley on the side of his head with an object that was approximately 12 inches long. Jenkins and the third man removed Beasley's coat, Martin hit him again and Beasley "slid down the wall." The three offenders then approached the stairwell where Lewis had witnessed the attack on Beasley. Lewis ran up one flight of stairs and then began to jump down the stairs as if he were playing. On the 11th floor Lewis encountered Martin and asked him, "What's up Red [Martin's nickname]?" Martin threatened him, saying, "If you see anything, if you tell anybody you see anything, something is going to happen to you."
Lewis testified that he observed the three men with Beasley for between 10 and 20 minutes and that his cousin, Odessa Turner, was not with him during that interval. He did not call for help because he was frightened. Lewis admitted that he did not tell the police what he knew until they interviewed him on March 11, 1980, more than six weeks after the crime. He explained that he did not approach the police earlier on his own initiative because he was scared. The same evening Lewis returned from the police station, defendant Martin's brother, Charles Martin, came over to his apartment and threatened him. Lewis testified that "he [Charles Martin] said that Red [defendant Martin] said that if he get indicted, something was going to happen to me." Martin did not elaborate but told Lewis, "You will find out." Lewis then moved out of the 2145 building.
The police discovered Beasley's body lying face up on the kitchen floor of his 11th floor apartment shortly before 7 p.m. on January 27. There were bloodstains around his head and the crime scene indicated that Beasley crawled to his apartment after the beating. He was already dead when the police arrived and his body was removed to the Cook County Morgue where Dr. Edmund R. Donoghue, a forensic pathologist, performed the autopsy.
Dr. Donoghue testified that he observed 21 evidences of external injury, consisting of lacerations, bruises and abrasions over his head, arms, knees and back, and three evidences of internal injury, consisting of hemorrhages under the scalp, on the back of the neck and under the skin overlying that part of the chest where the collarbones join the breastbone. Dr. Donoghue stated that these injuries were consistent with the use of blunt force. The autopsy also revealed that Beasley had severe coronary atherosclerosis (hardening of the arteries) and a thrombosis or total occlusion of the left descending anterior artery and that he had suffered prior heart attacks. Dr. Donoghue concluded that the cause of Beasley's death was "arteriosclerotic cardiovascular disease secondary to the beating." By "secondary to the beating" he meant that Beasley had very severe heart disease and the stress of the beating placed such a strain on his heart that he died. The beating "definitely aggravated" Beasley's heart condition and "caused his death at this time." A person without heart disease probably would not have been killed by the injuries Beasley sustained.
Both defendants testified in their own defense and denied that they had robbed or beaten the victim. Their testimony was substantially the same. Jenkins stated that he spent the afternoon of January 27, 1980, in his apartment in the 2145 building with his mother, Geraldine Jenkins, and his girlfriend, Frances Sims. Both Mrs. Jenkins and Ms. Sims corroborated this testimony. At approximately 6:30 or 6:45 p.m., Jenkins went to Martin's apartment on the 14th floor of the same building to celebrate Martin's birthday. Martin and his common law wife, Evelyn Jackson, testified that they had spent most of the day in their apartment with their children. Although Martin's birthday is March 7, Ms. Jackson explained that Martin usually celebrates his birthday more than a month early. She could not recall, however, whether there was a birthday celebration for Martin on January 27.
The defendants testified that after a few minutes they left Martin's apartment, walked to the 12th floor, took the elevator to the seventh floor where they tried to find Dwayne Beasley, the victim's son, and then walked downstairs to the first floor. Lester Neal, a resident of the same building, corroborated Martin's testimony that Martin and Jenkins had visited his seventh floor apartment looking for Dwayne Beasley. Jonathan Regunberg, an assistant State's Attorney, testified in rebuttal that on March 11, 1980, Martin told him that when defendants left Martin's apartment, they proceeded downstairs without stopping on the seventh floor.
Defendants testified that they drove downtown, ate dinner at the Windy City Restaurant and went to the Woods Theater. Martin stated that they arrived at the theater at approximately 7:45 p.m. and stayed for 2 1/2 hours. At trial, the defendants could not remember which movies they had seen. On cross-examination, Martin admitted that on March 11, 1980, he told Assistant State's Attorney Regunberg that he had seen either "The Onion Field" or "The Tattoo Connection." In rebuttal, Regenberg testified that Martin said that they had seen "The Onion Field," and Jenkins said that they had seen "Cult of the Damned." Jenkins testified that he never mentioned the name of the movie to Regunberg. Fidel Irizarri, a friend of Martin and an employee of the Woods Theater, testified that he saw Martin at the theater on January 27, 1980, at approximately 8:30 p.m. The theater was showing "Night Charge, Night Child," "Police Woman" and "Tattoo Connection." According to Irizarri, the theater never exhibited "Cult of the Damned." Martin testified that he saw his friends, the Sanders sisters, at the theater, and Lily Sanders corroborated this statement.
Defendants testified that they left the theater between 10:15 and 10:30 p.m., stopped at a liquor store and then drove home. Martin and Evelyn Jackson both stated that he returned to their apartment between 10:45 and 11:30 p.m. Geraldine Jenkins stated that her son returned at 2 a.m.
Odessa Turner, Perry Lewis' cousin, denied seeing Perry Lewis at any time on January 27, 1980. She stated that on the night before she testified she received a telephone call from Lewis who threatened her that if she told the truth, Lewis and his friend Darryl Lee would catch her "by herself." Turner testified further that on July 24, 1980, during the court proceedings, Lewis' mother threatened her while she was sitting in a waiting room. Turner also stated that Lewis' sister kidnaped Turner's mother's baby. On cross-examination, Turner admitted that prior to trial she told an assistant State's Attorney that she had been playing on the stairs with Perry Lewis on January 27, 1980.
Susie Turner, another resident of the 2145 building and Perry Lewis' aunt, testified that on July 15, 1980, eight days before trial commenced, Perry Lewis visited her apartment and told her he had lied about defendant Martin and that Martin was innocent. Lewis denied that he had ever discussed the killing with his aunt.
Dwayne Beasley, the victim's son and a friend of defendant Martin, testified that Martin and Joshua Beasley were friends and that Martin occasionally loaned him money because he knew Beasley was poor. Beasley identified Defense Exhibit No. 3, a gold wedding band, as a ring which his father had worn. The ring had no identifying marks and Beasley did not know whether his father was wearing it on January 27. Willie Patton testified that he purchased the ring and a watch from Perry Lewis and Darryl Lee on January 28 or 29, 1980, for $15. Patton also tried on a "quarter length" brown leather coat they showed him. Lewis denied that he had attempted to sell Patton a gold band, a watch or a leather coat and stated that he had last seen Patton on January 27, 1980. Patton testified that he sold the ring to a jewelry store and pawn shop on March 6, 1980, for $24 and gave the original receipt for the ring to Geraldine Jenkins. Dwayne Beasley testified that sometime after his father's death, he, Willie Patton, Evelyn Jenkins and Geraldine Jenkins went to a pawn shop and Mrs. Jenkins bought the ring. Mrs. Jenkins stated that only Patton accompanied her to the store.
Vanessa Beasley, the victim's daughter, testified in rebuttal that she had seen her father wear a birthstone ring but had never seen him wear any other ring. Lena Mae Beasley, the victim's first wife, testified in the State's case in chief that Joshua Beasley was not wearing a wedding band on January 27, 1980.
The trial court found both defendants guilty on all counts of the indictment, entered judgment thereon and sentenced each defendant to concurrent terms of imprisonment of 30 years for murder and 20 years for armed robbery.
Defendants first contend that they were deprived of their constitutional right to the effective assistance of counsel. Each defendant was represented by his own privately retained counsel. The Illinois Supreme Court has not yet decided whether the same standard of competence applies to both retained and appointed counsel. (See People v. Williams (1983), 93 Ill.2d 309, 324-26.) Decisions from four of the five districts of our appellate court, however, have held in conformity with the United States Supreme Court's opinion in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L.Ed.2d 333, 100 S.Ct. 1708, that the effectiveness of counsel, retained or appointed, is to be measured by one standard: whether the attorney is actually incompetent as reflected in the performance of his duties as a trial attorney, and whether that incompetence produced substantial prejudice to the defendant such that the outcome of the trial was probably changed. (People v. Moore (1981), 105 Ill. App.3d 264, 269-70, 434 N.E.2d 300; People v. Talley (1981), 97 Ill. App.3d 439, 442-43, 422 N.E.2d 1084; People v. Lovitz (1981), 101 Ill. App.3d 704, 710, 428 N.E.2d 727; People v. Corder (1982), 103 Ill. App.3d 434, 437, 431 N.E.2d 701; People v. Scott (1981), 94 Ill. App.3d 159, 162-64, 418 N.E.2d 805.) *fn1 It is defendant's burden to establish clearly both that incompetency and the resultant prejudice. People v. Berger (1982), 109 Ill. App.3d 1054, 1067.
In Berger, the court set out several factors to be considered in evaluating an attorney's competence. A defendant is entitled to competent, not perfect, representation; nor is a defendant entitled to a successful defense. Competency is determined from the totality of counsel's conduct at trial. Conduct which can be shown to be an exercise of judgment, discretion or trial strategy does not prove incompetency. Proof of prejudice cannot be based on mere conjecture. A defendant also may not rely on speculation as to the outcome of his case had the representation been of higher quality. Nor is the test what appellate counsel would have done at trial. (People v. Berger (1982), 109 Ill. App.3d 1054, 1062.) With these principles in mind we turn to defendants' specific allegations of incompetence.
• 1 Defendants complain of their counsel's failure to call either Anthony or Larry Mayweather as witnesses, although both were named in the State's answer to discovery. Defendants, however, fail to suggest what testimony Anthony Mayweather could have given. With respect to Larry Mayweather, defendants' counsel, after trial, produced an affidavit of Denise Beasley in which she stated that Larry Mayweather had told her that he had witnessed the robbery and that defendant Martin was not one of the assailants. As the trial court correctly noted, this statement was obviously inadmissible hearsay. There was no affidavit from Mayweather. Whether Mayweather was available to testify at trial and would have testified as Beasley represented is entirely speculative. (See People v. Greer (1980), 79 Ill.2d 103, 122, 402 N.E.2d 203.) Under the circumstances presented by this record, we cannot say that defense counsel's failure to call either Mayweather was evidence of incompetence.
Defendants' next allegation of incompetence concerns the testimony of Dwayne Beasley. On direct examination, Beasley, a defense witness, accused Perry Lewis of first selling his father a clock and a bottle of cologne and then stealing them. On cross-examination, Beasley admitted that he had no personal knowledge of this alleged conduct and the trial court disregarded his testimony on this matter. Defendants claim that this demonstrates that counsel either failed to interview Beasley properly or was unaware that his testimony was hearsay. We do not believe that these are the only two possible ...