Appeal from the Circuit Court of Madison County, the Hon. A.A.
Matoesian, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Defendant, Girvies Davis, and a co-defendant, Richard Holman, were charged by information with the offense of murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1). Following a bench trial in the circuit court of Madison County, defendant was found guilty. Holman, who was tried by a jury in a joint proceeding with defendant, was also found guilty of murder. (Because he was under 18 years of age at the time of the offense, he was sentenced to a term of imprisonment.) At defendant's separate bifurcated sentencing hearing, a jury unanimously determined that the necessary aggravating factors existed, and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The jury returned a verdict directing that defendant be sentenced to death, and the court entered judgment on the verdict. Defendant's post-trial motions were denied, and he brings a direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603), alleging numerous errors at all stages of the proceedings.
The evidence produced at trial indicates that on Friday, July 13, 1979, the victim, 83-year-old Esther Sepmeyer, was shot to death in her home located off Route 162 in Madison County. Rodney Sepmeyer, the grandson of the deceased, testified that he discovered the victim's body, in her bedroom, at approximately 1:50 p.m. She was found in a "kneeling" position in front of her bed.
The witness identified a lawnmower and a replica antique radio as two items which were taken from the victim's home. He stated that the radio was kept in her bedroom, and the lawnmower was located in a spare bedroom. Both of these items had been recovered from defendant's home pursuant to a search warrant.
Sepmeyer further stated that a stereo, color television set, and his .22-caliber semi-automatic rifle were stolen from the home. The rifle was kept in the back of a metal cabinet in the bedroom. Latent fingerprints recovered from the cabinet, and from a hand mirror found in the home, were identified as belonging to Holman. No fingerprints were discovered which matched those of the defendant.
The State also introduced into evidence a statement defendant allegedly made to a police officer, in which he indicated his complicity in the Sepmeyer murder. The statement, with certain grammatical changes made for purposes of comprehension, reads as follows:
"About two months ago a friend of mine by the name of Ricky Holman who also goes by the name of Ricky Shaw, and I were driving in my 1970 Buick 225. We were driving on the interstate and I remember seeing a sign that said St. Jacobs on it. We drove past this and then we exited the highway by some service stations. We drove down the road until we came to an old house. It was sitting on the right side of the road. This house had a barn sitting in the back. I pulled into the driveway and drove to the back of the house with the front of the car facing the back door. Both Ricky and I got out of the car and went up to the back door. I can't remember if we had to force the door open or not, but we went into the house. The back door leads into a kitchen and from the kitchen I could see that there was an old lady lying in a bed in a bedroom next to the kitchen. Ricky and I both walked into the bedroom right away. I went into the bedroom for a short time and then I started looking around the rest of the house and Ricky stayed in the bedroom. After I left the bedroom, I walked into the dining room and then into another spare room, and then into a hallway. The hallway had stairs leading to the upstairs but I never went upstairs. In the spare room there was a lawn mower, it was yellow with a three and a half h.p. motor. I took the handle off this lawn mower and then I carried it outside and put it in the trunk. While in the back room, I saw a motor thing with a black hose on it. I believe it was used to suck water and things up, but I didn't take it. In the hallway there was a turntable sitting on a heater. I can't recall what name it was, but it had a plastic top on it and I loaded it into the car. After I loaded the record player in the car, I came back in and got a T.V. that was sitting in the kitchen. The T.V. was sitting on a table just to the right of the door when you walked into the kitchen. The T.V. was a little white T.V. with black trim around it and it was a color T.V. When I first went into the bedroom with Ricky, I found a .22 new rifle in a box. This gun was in a cabinet in the bedroom and there were also some shells with it. I loaded the gun and gave it to Ricky. When I was outside putting the T.V. in the car, I heard a gunshot and when I got back in the bedroom, the old lady was shot and she was lying on the bed. At the time I told Ricky, let's get out of here. Again when I first went in the house, I saw an antique type radio in the bedroom and I unplugged it and set it on the kitchen table. Just as we were leaving the house the last time, I grabbed the radio and took it. Ricky never said why he shot the lady and I never asked. The old lady in the house looked very old and I think she was wearing a long flowered type dress. Early, while Ricky and I were in the house, Ricky asked me what we were going to do with the old lady and I told him, just leave her because she couldn't identify us. After we left the house, we drove to Perry's Lounge at 9th and Exchange in East St. Louis. I believe we sold the T.V. set there for about Eighty Dollars. After we left Perry's Lounge, we drove up the pay bridge and we drove halfway across and then Ricky threw the .22 rifle into the river. The lawn mower and radio I kept at my house and I'm not sure where the record player went to. I understand that I have the right to talk with a lawyer and have him here. But I want to turn State's evidence and get everything off my mind."
Additional evidence introduced by the State tended to corroborate defendant's statement in a number of particulars. For example, at defendant's direction, a police officer drew a sketch which accurately depicted the interior of the Sepmeyer residence. Defendant was aware of the items which were taken, and the location of those items in the home. He knew that the victim was an elderly woman and that she was shot in her bedroom. Further, a statement given by Holman verified certain details mentioned in defendant's statement.
Defendant called as a witness Dennis Kuba, a special agent with the Illinois Division of Criminal Investigation. He testified that Lawrence and Harris, two men with whom defendant shared a cellblock, were convicted of another crime to which defendant confessed. The theory of the defense was that defendant merely heard about the Sepmeyer murder from his cellmates and, for some reason, confessed to being one of the perpetrators.
Eric McCray, a friend of defendant, identified the lawnmower and radio taken from the Sepmeyer residence. He stated that, while he was at defendant's home, defendant bought these items from his cousin.
Defendant testified on his own behalf. He essentially stated that he never made the statement regarding the Sepmeyer murder, but that he signed a number of documents because he was threatened by the police. He also indicated that he confessed to being a perpetrator of the crime for which Lawrence and Harris were convicted because they "made threats" on his life.
Since no question is raised as to a reasonable doubt of defendant's guilt, further facts will be recited only where necessary to a disposition of the issues.
Defendant first contends that he was deprived of his right to a speedy trial in violation of section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a)). This section provides, in relevant part:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *."
On January 18, 1980, and for some time prior thereto, defendant was in custody in the St. Clair County jail awaiting trial and sentencing on certain pending murder charges. On that date, pursuant to a writ of habeas corpus ad prosequendum, the sheriff of St. Clair County brought defendant to Madison County, where he was served with an arrest warrant for the instant offense. That same day defendant was arraigned, a preliminary hearing was held, and an attorney was appointed to represent him. A demand for a speedy trial was filed, and the trial date was set for March 3, 1980. Defendant was then returned to St. Clair County.
For reasons not revealed in the record, the trial was rescheduled for April 29, 1980. Defendant appeared, in the custody of the St. Clair County sheriff, again pursuant to a writ of habeas corpus ad prosequendum. He indicated that he was ready for trial, but the State refused to proceed. Defendant was returned to St. Clair County. The prosecutor subsequently informed the judge that he would not prosecute defendant until the trials in St. Clair County were completed.
On December 5, 1980, proceedings on the final pending charge in that county were concluded, and defendant was transferred to Menard Correctional Center. A writ of habeas corpus ad prosequendum was issued, directing the warden at Menard to bring defendant to Madison County for trial on March 9, 1981. Pretrial motions were filed on that date, and the trial commenced on March 12, 1981.
There is no question that the 120-day period prescribed in section 103-5(a) commences to run on the date defendant is taken "in custody" for the offense for which discharge is sought. (People v. Woodruff (1981), 88 Ill.2d 10; People v. Jones (1965), 33 Ill.2d 357.) The State argues that defendant was not in custody for the instant offense until December 5, 1980, when the proceedings in St. Clair County were concluded. Defendant, relying on this court's decision in People v. Fosdick (1967), 36 Ill.2d 524, contends that he has been in custody since January 18, 1980, "when he was first brought to Madison County on a writ of habeas corpus ad prosequendum and served with an arrest warrant for the Madison County charge." We disagree and find defendant's reliance on Fosdick misplaced.
In that case, after a complaint was filed in Champaign County charging the defendant with rape, he was arrested in De Witt County on unrelated charges. He escaped from custody, was apprehended by Federal agents, and placed in the Champaign County jail. Defendant was subsequently arrested on the Champaign County warrant and served with a copy of the rape complaint. However, Champaign County then voluntarily dismissed the charge, allowing defendant to be returned for trial in De Witt County, and immediately filed new, but identical charges against him. In determining that defendant was in custody, on the Champaign County charge, from the date on which he was served with the arrest warrant, this court stated:
"Neither the dismissal and refiling of the same charge, (cf. People v. Patheal, 27 Ill.2d 269; People ex rel. Nagel v. Heider, 225 Ill. 347,) nor the voluntary relinquishment of custody to DeWitt County, (cf. People v. Swartz, 21 Ill.2d 277), can deny defendant his right to a speedy trial. It is clear in this case that defendant's removal to DeWitt County did not prevent his trial in Champaign County within 120 days of his original incarceration." 36 Ill.2d 524, 528.
The holding in Fosdick was therefore based on the fact that Champaign County voluntarily relinquished custody of the defendant to another county and attempted to evade the provisions of the 120-day rule by refiling an identical charge. In the instant case, Madison County did not voluntarily relinquish custody of defendant. He was already in the custody of St. Clair County authorities, who were under no duty to postpone proceedings so that he could be prosecuted on the Madison County charge. Although defendant was twice brought to Madison County pursuant to a writ of habeas corpus ad prosequendum, the sheriff of St. Clair County never released custody of defendant to Madison County. This court has indicated that the application of Fosdick is limited to its facts (see People v. Bixler (1971), 49 Ill.2d 328, 335), and there is no basis for extending the rationale expressed therein to the instant case.
We are not referred to, nor does our research reveal, any other supreme court cases which have considered the application of the 120-day rule when unrelated charges are pending against a defendant in different counties. However, the vast majority of appellate court decisions resolving the issue have stated that where a defendant "is in custody awaiting trial in one county and there is a charge pending against him in another county, * * * he cannot be deemed to be in custody for the latter offense until such time as the proceedings against him in the first county are terminated and he is then returned to, or held in custody for, the second county." (People v. Clark (1968), 104 Ill. App.2d 12, 20; see also People v. Hatch (1982), 110 Ill. App.3d 531; People v. Gardner (1982), 105 Ill. App.3d 103; People v. Wentlent (1982), 109 Ill. App.3d 291; People v. Kerley (1979), 72 Ill. App.3d 916; People v. Evans (1979), 75 Ill. App.3d 949; People v. Karr (1979), 68 Ill. App.3d 1040.) This principle has been recognized even where defendant has appeared before the court in the second county, but is subsequently returned to the first county for further proceedings. 109 Ill. App.3d 291; 105 Ill. App.3d 103; 75 Ill. App.3d 949 (dicta).
We agree with the holding of these cases, and adopt the rationale expressed in People v. Clark:
"Any other construction would embarrass and harass the effective administration of criminal justice and would tend to favor an accused who is in custody of one county for a crime, but has formal charges pending against him, for which hold or detainer orders have been placed in several counties. Such an absurd result could not have been intended by the legislature when section 103-5(a) was enacted. Further, it would seem that if one county is to be allowed 120 days in which to prosecute an accused who is in custody for an alleged offense, another county should have an equal amount of time, notwithstanding that its charge against the same accused has been concurrently pending while the case in the first county was being disposed of." (104 Ill. App.2d 12, 20.)
It should also be noted that where an accused is in custody upon more than one charge in the same county, the State is given additional time in which to proceed with the prosecutions. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a).) It would therefore be anomalous to conclude that separate charges in different counties must all proceed to trial within 120 days.
Accordingly, we hold that defendant was not "in custody" for the instant offense until December 5, 1980, when the proceedings against him in St. Clair County were concluded. Since the trial commenced on March 12, 1981, 120 days had not lapsed and defendant was not deprived of his right to a speedy trial.
It is next argued that, because of an alleged conflict of interest, defendant was denied effective assistance of counsel. This contention is based on the fact that Mr. Kinder, who represented defendant during the guilt and innocence phase of his trial, was a personal friend of an individual for whose murder defendant is allegedly responsible.
Prior to the second phase of the sentencing hearing, a conference was held between the judge, Mr. Kinder, Mr. Bateman (who represented defendant at the first stage of the sentencing hearing), and the State's Attorney. Defendant was not present. Mr. Kinder informed the judge that he recently learned the State intended to introduce, as an aggravating factor, evidence that defendant murdered Mr. James Perdue. He further indicated that he and Perdue were "close personal friends," and he therefore did not believe that he could continue to represent defendant. Mr. Kinder then stated:
"[T]he very first day that I met Mr. Davis and interviewed him preparatory to the original trial, I explained to him who I was, my relationship with Mr. Perdue. And I wanted him to understand that I didn't have very good feelings toward him as a result of that particular case, and that if that case comes up, I would not defend him on it. I would rather see him convicted. And I just have a feeling that this prejudices the defendant."
When asked by the State's Attorney how defendant responded, Mr. Kinder stated: "Then he said, Well, go ahead. I told him we're not on that case. So, I don't mind handling this one for you, but on that one, I won't represent you. And he seemed to understand that." The judge did not verify with defendant Mr. Kinder's statements. There is, however, ...