Appeal from the Circuit Court of Cook County; the Hon. Howard
M. Miller, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 15, 1984.
Loren E. Banks II (defendant) was indicted on two counts of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)) and one count of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). Prior to trial, the court approved the State's motion to nolle prosequi the armed-violence count. On October 7, 1981, following a jury trial, defendant was found guilty of the murder of Peter Mazik, Sr. (Mazik). Defendant's motion for a new trial was denied by the trial court, and on October 29, 1981, defendant was sentenced to serve 25 years with the Illinois Department of Corrections.
On November 12, 1981, defendant filed a notice of appeal (case No. 81-2727) challenging his conviction. On January 25, 1982, some three months after sentence was imposed on defendant, the supervisor of the Markham felony trial division of the Cook County State's Attorney's Office forwarded to defendant's trial counsel a letter containing a memorandum prepared by George Coston, a Cook County sheriff's officer, detailing the officer's recollection of a January 11, 1981, telephone conversation he allegedly had with "Mrs. Mazik." Also enclosed was a memorandum prepared by radio operator Linda Fisher. This information led defendant to contend that his conviction was based, in part, upon the "perjured testimony" of a State's witness, Linda Mazik, deceased's wife. Based upon this alleged newly discovered evidence, defendant, on September 14, 1982, filed a "Petition to Vacate Judgment of Conviction" pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122-1 et seq.) and section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), now section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401).
On November 10, 1982, a hearing on defendant's petition was held before the same judge who conducted the trial. After Officer Coston testified and argument was presented, the court denied defendant's petition. On November 17, 1982, defendant filed a second notice of appeal (case No. 82-2798), this time from the trial court's denial of his post-conviction petition. Upon defendant's motion in this court, his direct appeal from conviction and his appeal from the denial of his post-conviction petition have been consolidated.
On appeal defendant raises a number of issues including (1) whether the trial court erred in excluding certain evidence offered by him at trial; (2) whether the trial court erred in restricting testimony of an expert defense witness; (3) whether the sequestrating of defendant during a lunch break at trial, prior to the completion of his testimony, amounted to a denial of his right to the effective assistance of counsel; (4) whether certain prosecutorial remarks made throughout the trial deprived defendant of a fair trial; (5) whether the State failed to prove defendant guilty beyond a reasonable doubt; and (6) whether the trial court erred in denying defendant's post-conviction relief. In view of our disposition, for reasons hereinafter set forth, we find it necessary to address only issues 5 and 6.
We reverse the trial court's denial of defendant's post-conviction petition and remand this cause for a new trial.
On January 11, 1981, defendant fatally wounded Peter Mazik, Sr. (Mazik), by shooting him twice in the chest with a .22 derringer. At the beginning of his trial on September 29, 1981, defendant admitted shooting Mazik but claimed that he acted in self-defense. Two guns, the derringer and a .357 magnum, were recovered at the scene at the time of the shooting. Defendant admitted ownership of the derringer but claimed that Mazik carried the .357 magnum.
The following events were elicited at trial:
Mazik and Alice Banks (Alice), presently the wife of defendant, were divorced in April 1978 after a 12-year marriage. Three children were born of that marriage: At the time of trial, Brenda was aged 14; Karen, aged 10; and Peter, Jr., aged eight. Pursuant to their divorce decree, Mazik remained in the former marital home in unincorporated Orland Park, Illinois, and retained custody of Peter, Jr. In April 1979 Mazik married Linda. Alice retained custody of Brenda and Karen and resided in Rolling Meadows, Illinois. In May 1980 Alice married defendant. Mazik and Alice were granted reciprocal rights of visitation with their children.
Because of the custody and visitation arrangements, Mazik and Alice remained in frequent contact. From August 1979, when Alice first met defendant, to the date of Mazik's death on January 11, 1981, occasional confrontations erupted between Mazik, Alice and defendant. These disputes were generally caused by disagreement over the custody and treatment of Brenda and Karen, the two daughters of Mazik and Alice. During one such dispute on September 16, 1979, a physical struggle between Mazik (6 feet tall, 185 pounds) and defendant (6 feet tall, 115-120 pounds) occurred. Following this altercation Mazik halted Peter, Jr.'s visits to his mother and began legal proceedings seeking permanent custody of his two daughters.
On June 30, 1980, the Rolling Meadows police were called to defendant's home to break up another dispute between Mazik and defendant. Between 1979 and the day Mazik was fatally wounded, Mazik allegedly made several threatening telephone calls to Alice and defendant.
The record indicates that on January 5, 1981, six days before his death, Mazik's custody petition was dismissed by the circuit court.
On January 11, 1981, the night Mazik was killed, Peter, Jr., had been visiting Alice, who at that time was eight months pregnant. Together with Alice's two daughters and defendant, they attended a family gathering at the home of Alice's mother. At the conclusion of the evening, Alice's uncle was expected to accompany Alice to Mazik's home when she returned Peter, Jr. *fn1 However, Alice's uncle was unavailable for this purpose, and defendant accompanied Alice on the drive to Mazik's home. Defendant admitted to drinking 1 1/2 cans of beer during the drive to Mazik's home.
The testimony regarding the events that transpired upon their arrival at Mazik's home is unclear and conflicting. Peter, Jr., testified to the following:
Upon arriving at the Mazik house, Alice exited the car, leaving the motor running. Peter, Jr., exited the back seat and began removing his Christmas presents. Defendant remained seated in the front passenger seat. Linda Mazik, the victim's wife, had been walking her dog. She approached the car to help carry Peter, Jr.'s presents into the house. Peter, Jr., noticed his father standing on the "deck" of the house. Peter, Jr., then saw Mazik walking towards the car. He could see Mazik's hands as Mazik approached but observed nothing in them. When Mazik reached the front passenger side of the car where defendant sat, Mazik opened the door "halfway." Looking through the front driver's side window, Peter, Jr., could see only Mazik's head and the back and arms of defendant. Peter, Jr., denied seeing Mazik reach into the car and grab defendant by his clothing.
Peter, Jr., stated that after Mazik opened the car door, "Loren [defendant] shot him." Although unable to see Mazik, Peter, Jr., testified that Mazik was on the ground and "was starting to get up and then [defendant] shot him again." After the second shot, defendant ran around the side of the car and "told us to go * * * call an ambulance." As he came around the car defendant was holding a gun in his left hand (later identified as a .357 magnum). After the shooting, Peter, Jr., went into the house with Linda Mazik.
Linda Mazik, the victim's wife, testified to the following:
On the night of January 11, 1981, she was walking her dog when defendant, Alice and Peter, Jr., drove into her driveway. She approached the driver's side of the car to help carry Peter, Jr.'s Christmas presents into the house. As she was helping with the presents, she heard the storm door of the house "slam" and, "out of the corner of her eye," she saw Mazik come out of the house "pretty fast." Although it was "very dark," the area was illuminated by a driveway spotlight and the headlights of Alice's car. Linda could see Mazik across the top of the car on the passenger side but stated that she "wasn't really paying a lot of attention." Linda next heard a gunshot. She looked over the car but could not see Mazik; she looked through the driver's side front window and saw defendant "getting out of the car and [she] heard another shot." ...