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People v. Smalley

OPINION FILED FEBRUARY 24, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THOMAS SMALLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas Fitzgerald, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and sentenced to 30 years in the Department of Corrections. On appeal, defendant argues that he was denied his constitutional right to effective assistance of counsel. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following pertinent facts. Approximately 9 p.m. on May 20, 1981, Darryl Adams was shot and killed while running across a crowded playground between two apartment buildings located on South State Street in Chicago. Testimony presented two versions of the events leading up to and including the shooting.

First, Joyce Hughes testified that while she was sitting on a playground bench with two girl friends, she noticed Darryl Adams standing about 20 feet from her talking to another black male whom she did not know. She then saw the second man fire one shot at Darryl, followed by several more aimed at Darryl's back as he fled toward the building at 4845 South State.

On cross-examination, Hughes stated that Darryl was on a bicycle, facing the bench on which Hughes was sitting and the second man had his back to her. She did not see anyone else join the conversation.

David Bush testified to substantially the same occurrence facts as did Hughes but added that he did have an opportunity to view the assailant's profile which enabled him to pick out defendant's photo from a photo array at police headquarters on the night of the shooting and also to identify defendant as the assailant at trial.

Cornell Cousins then testified that approximately 9 p.m. on the night of the shooting he was standing on the ground floor at 4845 South State when he heard a gunshot, stepped out of the building corridor and looked toward State Street where he saw defendant shooting at Darryl Adams as he chased Darryl across the playground. On cross-examination, Cousins stated that he had been with his friend, Earl Norwood, five minutes before the shooting and later left with Norwood to get a beer. Norwood had not been with his girl friend. Cousins also admitted to knowing Tom Singleton.

Next, Earl Norwood testified that at the time of the shooting, he and his girl friend were sitting on the seventh floor porch of the building at 4844 South State when he heard gunshots coming from the direction of the 4848 building. When he looked down, he saw defendant shooting at Darryl as they were both running across the playground. On cross-examination, Norwood stated that he had been sitting on the porch for approximately two hours when the shooting occurred. He had had no plans to meet Cornell Cousins later that evening. The 4844 building is located approximately 75 to 100 feet from the 4848 building, and defendant came as close as 50 feet to the 4844 building while he was running. Thereafter, the State rested its case and the court denied defendant's motion for a directed finding.

Following the testimony of several defense witnesses, defense counsel requested that the case be either passed or held over pending the arrival of two additional defense witnesses, Tom Singleton and Maurice Norris. In response to the trial court's query as to whether their testimony would be germane to the case, defense counsel explained that Singleton would testify that Cousins told him that he had not seen the shooting. When the court noted that defense counsel had not laid a proper foundation for impeachment of Cousins, the following colloquy ensued:

"DEFENSE: Well, I don't think Mr. Thomas Smalley, in a case as serious as this, should be punished for the incompetency of his lawyer, Judge.

COURT: The difficulty I am having * * * is how to rectify the situation.

DEFENSE: I could get a subpoena out to Cousins today and have him brought back at the Court's convenience to reopen cross-examination.

COURT: For this limited purpose?

DEFENSE: For that limited ...


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