Appeal from the Circuit Court of Du Page County; the Hon.
Anthony Peccarelli, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 15, 1984.
Eugene Lovitz, the defendant, appeals from the denial of his post-conviction petition following an evidentiary hearing. Defendant's conviction and sentence for murder had been considered and affirmed by this court on direct appeal. (See People v. Lovitz (1976), 39 Ill. App.3d 624, appeal denied (1976), 64 Ill.2d 597, cert. denied (1977), 434 U.S. 842, 54 L.Ed.2d 107, 98 S.Ct. 141.) The defendant's post-conviction petition was denied without an evidentiary hearing, and we remanded with directions to conduct an evidentiary hearing, based on an affidavit that the State's firearms expert who testified at trial would, on the basis of additional information made available after the trial, have a different opinion as to whether the weapon could have discharged accidentally. (People v. Lovitz (1981), 101 Ill. App.3d 704.) We also remanded with directions to take evidence relating to the issue of incompetence of counsel, based on trial defense counsel's affidavit that he was unprepared for trial.
The theory of the defense in the murder trial, essentially, was that defendant's wife produced the Llama .380 semi-automatic pistol, threatened defendant and their child with it, and the gun accidentally discharged while in the wife's hand when defendant and she fell to the floor. This theory was supported by Sergeant Robert Wilson of the Du Page County sheriff's department, who testified at trial that a puncture wound measuring two millimeters by four millimeters was present on decedent's right hand near the rear portion of her thumb. Defendant's firearms expert, George Nonte, had testified at trial that the wound on decedent's hand was consistent with an injury from firing a Llama .380.
Our remand was on the basis that the affidavit of Joseph Nicol, the State's firearms expert, indicated that it would not be inconsistent for the weapon to have accidentally discharged during the struggle in the manner described by the defendant at the original trial, in which he and the decedent purportedly slid down a wall and impacted with the floor; and, further, that there are positions in which the gun could have been oriented at the time it discharged so as to cause the gun slide to create the puncture wound shown on decedent's hand. We remanded for an evidentiary hearing to consider the scope of Nicol's revised opinion relating to the weapon and the effect, if any, it had upon the outcome of the case, as directed to the essential issue of whether defendant's right to a fair trial was violated. People v. Lovitz (1981), 101 Ill. App.3d 704, 708.
On remand, there was testimony that a design defect exists in the Llama .380 pistol which could permit the gun to fire when the hammer is fully cocked without any pressure applied by a human agency to the grip safety. That this design defect exists was not contested.
Joseph Nicol, a well-known firearms expert, had testified at the original trial on behalf of the State that, based upon test firings of the pistol and high-speed photographs taken as it discharged, it was his opinion that the slide would clear the back of the hand by about one-half inch. He said, "It would be highly improbable for this weapon to have struck the hand of the deceased in the area described." When asked on cross-examination whether it was impossible for the gun to be held in a position to cause such a wound, he responded: "I was unable to determine a position * * * that would expose the upper surface of the thumb so that a wound would be received * * * [in] my opinion [there is] no position in which this gun could be held and fired [that] would produce a mark on the shooter's hand * * *." Nicol's opinion was also based upon the velocity and the force of the recoil of the pistol and his belief at that time that the gun would not fire unless the grip safety was engaged and the trigger squeezed.
In the post-conviction hearing Nicol testified that, based on the information of the design defect, his testimony given at the original trial would have been modified:
"Q. In what respect would it have been modified, sir?
A. I would have stated that the — that a nonhuman activation was possible; that is, by some mechanical force on either the hammer, bringing it to the position that was shown or on the top spur of the grip safety.
Q. Would it have caused the gun to discharge?
A. It's possible to cause the gun to discharge with that kind of force, yes.
Q. And, at this time, sir, it is, also, with that other knowledge, it would be then your opinion or would have been your testimony that the hand of the shooter could ...