Appeal from the Circuit Court of St. Clair County; the Hon.
John J. Hoban, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Lee Otis Griffin and Jimmie Lee Smith were convicted by a jury of three counts of murder and one count of armed violence. Griffin was sentenced to three concurrent terms of 40 years for the murder convictions and one concurrent term of 30 years for the armed violence conviction. Smith was sentenced to three concurrent life terms and one concurrent term for 60 years. Smith and Griffin jointly appealed from their convictions. (People v. Griffin (1984), 124 Ill. App.3d 119.) Griffin also appealed from the denial by the circuit court of St. Clair County of his post-conviction petition alleging a denial of effective assistance of counsel and his post-trial petition to set aside the conviction because the State's key witness perjured himself. Although our separate opinion on the direct appeal by Smith and Griffin set out the facts leading to their convictions, our consideration of Griffin's separate appeals must begin with a fuller factual statement.
About 5:30 p.m. on February 5, 1981, in an apartment in East St. Louis, four people were repeatedly shot. One of the victims, Charles Kellick, feigned death and lived to testify as the State's key witness. Another, Ron Walker, lived long enough to tell the story of the attack on him to three witnesses, each of whom heard something different. The other two, Charles Sims and Christi Smith, provided no clue to the events leading to their deaths. Within hours of the shooting, Lee Otis Griffin was arrested for the murders. A few days later Jimmie Lee Smith gave himself up. A third man, Will Hudson, was never located. No guns were recovered. Griffin's red and white Cadillac, seen at the apartment house, was eventually found abandoned. No fingerprints or other physical evidence was offered to connect it with the killings.
Griffin originally retained Ralph Derango to represent him. They had one conference which lasted about an hour. Following that conference, Derango talked with L.C. Moore, the investigating officer. From Derango Moore learned that Griffin denied doing any of the killing but that he could identify those involved. The information passed on by Derango confirmed Moore's identification of those involved. When Moore served a warrant on Griffin in jail, Griffin again denied that it was "his idea to kill anyone." It was Moore's opinion, based on his knowledge of Smith, that Smith would leave no living witnesses.
Jimmie Lee Smith was arrested several days later and was represented from the beginning by Marvin Goldenhersh. After Griffin's family discharged Derango, Goldenhersh undertook the joint representation of Griffin and Smith. He received a copy of the grant jury proceedings in which Griffin's earlier actions and statements were reported along with Moore's opinions.
On May 5, 1981, at a hearing on a defense motion for a continuance, defense counsel reported that he spent the entire previous day with both his clients in case the continuance should not be granted. The court probed for the possibility of a conflict in the joint representation, but it is clear from the record that counsel at no time during his joint representation of Smith and Griffin recognized any conflict of interest sufficient to require his withdrawal. In response to a direct question from the court, counsel replied, "There is no conflict, Your Honor." Motions for the severance of the trials of the two defendants stated only that each would be prejudiced by admissions made by the other which the customary instructions would not cure and that Griffin would be prejudiced if tried with a co-defendant who could not testify because he had a "substantial criminal record." Counsel's argument for the motions to sever led the court to question him closely about the firmness of the proposed alibi defense. The court reminded him that it would not permit "any admission by Lee Otis Griffin that he and Jimmy Smith were in there together." The court asked whether counsel was "saying that the defendant who made admissions against interest now comes up with an alibi defense." Counsel answered that although there were no admissions that Smith and Griffin acted in concert, "[t]hey were either in this together, or they weren't." Prior to jury selection, the State's Attorney again questioned whether, in light of discovery provided by his office and counsel's own interviews with the defendants, the defense was aware of a possible antagonism between the defenses of Griffin and Smith. No further reference to a conflict was made at trial.
The alibi defense offered at trial linked the defendants together during most of the day on which the murders occurred. Griffin testified that Smith came to work in the Griffin family's furniture store at 11 a.m. and they were together there until 3:30 p.m., when they left together to run personal errands. They were in Easton's Tavern from about 5 p.m. until just before 7 p.m. Griffin testified that he left his red and white Cadillac at the store and drove a black and white Maverick borrowed from his sister-in-law. After leaving Easton's Tavern, Griffin returned alone to his sister's house where he met a friend and sat with her in her car. Defense witnesses confirmed Griffin's version of the alibi, but the prosecution's cross-examination underscored various inconsistencies and improbabilities in their stories.
Identification of those responsible for the shooting was the central issue at trial. Three eyewitnesses, each of whom was able to see only a part of the events leading to the shooting, provided conflicting testimony as to who was in the apartment at any given time, who was armed, and who actually did the shooting.
Charles Kellick was the State's key witness. In reciting the events leading up to the shooting, Kellick said he had picked up Velma Robinson and Charles Sims and they all agreed to go to Christi Smith's apartment. Kellick drove the three of them there in his truck which he parked in front of the apartment house. Sims went up to the building alone but returned to say he heard Christi crying inside. Kellick then went with Sims into the building and then into the apartment where they found only the girl and a man in the bathroom. Kellick identified the man as Griffin. Two men walked in behind Kellick. He thought one of them had a revolver. As Sims stepped toward the girl, Griffin shot him. Kellick did not see the weapon or which hand the weapon was in. After Sims was shot, Kellick pushed the two men down and ran to the front door of the apartment. As he put his hand on the knob he was shot in the back of the head. Smith then walked up to Kellick and shot him in the face. Smith kicked him and left him to die. Kellick pretended to be unconscious but eventually was able to crawl into a hiding place under the steps.
Kellick was able to recognize Griffin and Smith because he had seen them a few weeks before the shooting near a house where he dropped Christi Smith off. He had once gone to Griffin's store to buy some beds. When Officer Thurman questioned Kellick at the hospital, Kellick said he did not know who did the shooting. Three days later he identified Griffin in a video lineup presented at the hospital. Five days later he identified Smith's photograph. Kellick remembered seeing a red and white Cadillac behind his truck as he started toward the apartment. He could not say whether it had pulled up after he did or was already there.
Kellick's prior statement was read to the jury. In it he said that the girl was sitting in the bathroom and Griffin was with her and that two black men were standing by the door. He recognized them because he had seen them before with Griffin. He had seen Smith five times and Will Hudson at least once. Kellick admitted that the statement might not have been completely accurate because it was taken just after he had undergone surgery. After he was released from the hospital, Kellick learned from street contacts and a police officer that the house where had seen Griffin, Smith and Christi was considered a dope house.
Kellick admitted that he had been convicted twice, once for burglary and once for escape from the St. Clair County jail where he had been held for murder, and that he was presently under indictment for the theft of a truck. His trial for theft had been continued until after the murder case was completed. He denied that he had made any deal with the State regarding his testimony.
Velma Robinson, a passenger in Kellick's truck, confirmed his account of a red and white Cadillac behind the truck and two men entering the building after Kellick and Sims went in. She saw the car pull up slowly after Kellick parked. Two men got out, one of whom she recognized as Griffin. They went in. She heard one shot a few seconds after the two men went in. The same two came out and got in the car, which they pulled up in front of the truck and parked for five minutes. They then drove around the corner and five minutes later went back into the building after Ron Walker, another victim, had gone in. She heard another shot. She drove off to get the police. On cross-examination, the defense established that the lighting was good and she was sure she had seen Griffin get out of the Cadillac. Her trial testimony was more detailed than her statement to the police in which she had said she heard two shots five seconds apart, omitting any reference to the Cadillac or the two men.
Ron Walker, whom Robinson had seen enter the apartment house, was shot five times but managed to get to a nearby grocery store. He stumbled in just as Darrell Rice, an Illinois State trooper, and Lionel Settles, an East St. Louis policeman, were talking. David Winchester, assistant manager of the store, came up just after Walker arrived. All three men agreed that Walker identified some of those involved, but they differ on exactly what he said. Over defense objections, the court admitted Walker's statements as dying declarations. Settles testified that Walker said "Lee" had shot him and further identified "Lee" as a man he had previously seen hanging around a furniture store. Settles asked Walker about the other assailant and Walker identified him as Rush City Jimmy, the owner of the furniture store. Settles later testified that Walker identified "Lee" as the owner of the store and Rush City Jimmy as the one who killed the girl. Although Settles did not then know who Rush City Jimmy was, he understood two men were involved.
While Settles was out of the room where Walker had been taken, Rice heard Walker say that Rush City Jimmy killed the girl but that the person who shot him was "Lee's friend." Rice understood that Walker "was shot as he entered the apartment by the subject already inside the apartment." Winchester came into the room in time to hear some comment about someone who owned a furniture store but did not hear Walker identify who had shot him. He agreed that Rush City Jimmy was named as the girl's killer. Winchester and Rice also agreed that Walker identified a red and white Cadillac as the car in which the attackers fled.
Although Winchester's original statement reported Walker saying there were three men inside the apartment, "the guy that owns the furniture store and his friend, and another, the light-skinned dude," Winchester later testified that the "light-skinned dude" was the same as the storeowner and that only one man was inside the apartment with a gun. Another version of the story offered to the grand jury had Walker saying he had been shot by two people and that two people met him at the apartment door. Walker said he went into the apartment where he ...