Appeal from the Circuit Court of Coles County; the Hon. Ralph
S. Pearman, Judge, presiding.
PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was charged by a four-count information filed in the circuit court of Coles County with the shooting death of William Prather in violation of section 9-1(a)(1) and (2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (2)). He was tried to a jury which returned a general verdict of guilty and was sentenced to 28 years' imprisonment. During pretrial proceedings and at trial defendant was represented by the Public Defender of Coles County, Lonnie Lutz, who also filed on his behalf a post-trial motion. New counsel then entered the case and filed an amended post-trial motion which was denied. This appeal followed.
Defendant raises three issues for our consideration: (1) reasonable doubt in that the State failed to disprove his affirmative defense of self-defense; (2) failure of the court to give a voluntary manslaughter instruction in the absence of an express personal waiver of the instruction by defendant; and (3) conflict of interest on the part of defendant's counsel. We find no merit in any of the issues and affirm.
The State's principal witness was Collin Anthony Runner. He testified that he arrived at defendant's trailer home about 9:15 p.m. on June 4, 1982, and remained with defendant into the early morning hours of June 5 when the homicide apparently took place. When Runner arrived, Fred Carlen was already there and later Jim Dare and William Prather, the victim, arrived. Prather made several threats against defendant in the presence of the others in the apparent belief that defendant was responsible for Prather's having received an extensive prison sentence on a prior offense. Runner stated that Prather kept saying that he was going to "cut you [defendant] up — I'm going to kill you." He observed no weapon on or about Prather; defendant did not return any of the threats but appeared nervous.
Runner decided to leave the trailer and the others followed him. While outside and walking toward his car, he heard two shots. He turned and saw Prather "stiffen up" and next saw defendant shoot Prather again. He ducked behind a car and when he came out, defendant and Carlen were standing over the body of Prather. The body was then placed in the trunk of Carlen's car and the three, Carlen, Runner and defendant, drove out into the country and dumped it into a ditch where it was discovered by a farmer on June 6, 1982.
Runner further testified that he told his wife that there had been a shooting and that Prather had been killed. He stated that the only thing he saw in Prather's hand at the time of the shooting was a beer can but admitted that he was looking at Prather's face. He admitted to 1981 and 1982 convictions for possession of a controlled substance and was on probation with a revocation hearing pending at the time of the incident at bar.
Runner reported the shooting to the police on June 6. He claimed that at that time an agreement had been reached as to the disposition of the revocation proceeding but that he had not yet gone to court about it.
Carlen testified and corroborated Runner's statement as to the threats made inside the trailer. He stated that after leaving the trailer he heard a couple of "popping sounds"; he turned and heard another sound; and then Prather stumbled and fell behind Carlen's car. He stated that he saw nothing in Prather's hand, but did see a gun in defendant's hand. The body was then placed in his car's trunk and disposed of as described by Runner.
Dare testified as to the threats, corroborating the others. He stated that when he left the trailer, he heard "three or four bangs"; he saw Prather stagger and fall; and he then drove away. The next day he saw the defendant at a friend's house where the defendant told him he "hated to be the one to have to do that."
Defendant's uncle testified that a .22-caliber pistol in evidence was the one which he had traded to defendant for a shotgun on June 4, 1982, and that on June 5 defendant had returned the pistol. He turned it over to the police.
The autopsy surgeon testified as to his findings. He stated that the cause of death was massive destruction of the brain due to a gunshot wound to the head. He further stated that there were "wounds in the left side of the head, in the right side of the trunk, near the center, and two wounds in the right arm." On further inquiry, he stated that it was an entrance wound and that such a wound suggested that it was an entrance wound and that such a wound suggested that the bullet "hit the head perpendicularly — that the muzzle was held somewhat perpendicularly to the head. * * * This was a round regular wound, with a fairly uniform abrasion collar, and this all tends to indicate a perpendicular relationship of the muzzle or the bullet to the skin as it struck the skin." The doctor was of the opinion that the bullet was fired from a distance of at least 2 1/2 to three feet away from the head. He also stated that the wound to the trunk came from the front, at the same approximate distance, and at an angle.
Numerous witnesses testified as to defendant's reputation as being nonviolent and Prather's reputation as being violent.
Defendant testified on his own behalf. He stated that he knew Prather had been released from prison and was looking for him. He testified as to the threats and said he became nervous that Prather would carry them out immediately. On cross-examination he admitted that he saw no weapon flashed by Prather while in the trailer. According to defendant's version of events, all parties left the trailer and Prather stood outside calling defendant to come out. He then went to his bedroom and obtained the gun and went outside. Prather blocked his way and threw a can of beer at him. He stated that Prather then pulled out what defendant believed to be a knife and made a pass at him with it; that he, defendant, moved backwards and tripped over the sidewalk; Prather kept moving toward him; he tried to get up and Prather made another pass with the knife. Defendant then pulled out the gun and fired; Prather kept advancing and defendant, in trying to get away, slipped, turned, and fired again. He maintained that the first shots were fired as he sat on the ground looking up at Prather, who was bent over him.
Defendant also testified that on the next morning he found a straight razor lying in his driveway. He believed it was Prather's. He then threw it into a lake, which was dragged by the police, but it was never recovered. On cross-examination he admitted that when he was ...