Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Saline County,
the Hon. Michael J. Henshaw, Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
The defendant, Gary L. Barnard, was charged by information in the circuit court of Saline County with three counts of murder, under the provisions of sections 9-1(a)(1) and (2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (2)). The defendant was also charged with three counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2) based on the different murder charges. Following a jury trial the defendant was convicted of one count of murder. Verdicts of not guilty were returned on the armed-violence counts. The defendant was sentenced to 25 years' imprisonment and fined $5,000 by the court. On appeal to the appellate court, the defendant contended that the trial court abused its discretion in imposing the $5,000 fine. He also contended in the appellate court that he should have received a credit of $145 toward his fine for the time he spent in custody prior to sentencing. The third issue raised in the appellate court urged that the trial court erred in considering the allegations of the defendant's prior criminal acts which had not resulted in convictions. The appellate court, in a Rule 23 order (87 Ill.2d R. 23), vacated that part of the circuit court order imposing a fine upon the defendant and remanded it to the circuit court for further hearings on defendant's ability to pay a fine. (115 Ill. App.3d 1161.) The remainder of the judgment of the circuit court was affirmed. We granted the defendant's petition for leave to appeal. 87 Ill.2d R. 315.
On June 15, 1981, Dennis Price (the decedent), and Larry Moore and Stanley Jackson drove up in front of the defendant's house at about 6:45 in the evening. The three occupants of the automobile had been drinking. The defendant went out to the automobile and had a brief conversation with the three, after which the occupants of the automobile left to get something to drink, and the defendant returned to his house to watch television. After a while he thought that the men might return and cause some trouble, so he went to his bedroom, loaded a .22-caliber pistol and, leaving the pistol in the bedroom, returned to the other room to again watch television. A short time later, decedent and Moore came back and entered the house without invitation. Jackson did not come into the house. Price and Moore argued with each other off and on for about half an hour as the defendant was watching television. Finally the defendant asked them to leave, and when they made no attempt to do so, he went into the bedroom and got the pistol which he had previously loaded. He returned to the living room, pointed the gun at Price and told him to leave. Price started walking toward the defendant with his hands held above shoulder height, saying, "You don't want to do that, man. You don't want to do that." Defendant fired one shot into Price's chest when he was about six feet from the defendant. The defendant then called the Harrisburg police department, identified himself, gave his address, and said that he had just shot Dennis Price and that the police should come and send an ambulance. Price died from the wound.
The defendant first contends that the jury's verdict of guilty of murder and not guilty of armed violence based on murder requires reversal of the murder conviction, citing our recent decision in People v. Frias (1983), 99 Ill.2d 193. We do not agree. In Frias, the jury returned a verdict of not guilty of murder and guilty of armed violence based on murder, which is the reverse of the findings in this case. In Frias we held that if the jury found the defendant not guilty of murder, it could not find that the defendant had committed armed violence based on murder. The finding that the defendant had not committed the underlying felony, on which the armed-violence charge was based, by virtue of collateral estoppel, required that the armed-violence conviction be reversed. (99 Ill.2d 193, 203.) We found the verdicts to be legally inconsistent. While there may be some logical inconsistency in the verdicts in our case, they are not legally inconsistent. The finding of not guilty of armed violence based on murder is not a finding that the defendant did not commit murder. We do not know what prompted the jury's not guilty verdict on the armed-violence count. It could have been an expression of lenity which, of course, does not render the verdicts legally inconsistent. Frias does not require a reversal of the murder conviction in this case.
In addition to the Frias issue, the defendant in this court urges that he was deprived of a fair trial by certain evidentiary rulings and by certain errors in the instructions to the jury. He also argues that he was deprived of effective assistance of counsel in the trial court and in his appeal to the appellate court. As noted earlier in this opinion, the errors in the trial court now argued and the question of trial counsel's competency were not raised in the appeal to the appellate court, and have been raised for the first time in the defendant's petition for leave to appeal to this court.
At the trial defendant was represented by the public defender. Following the defendant's conviction, the State Appellate Defender was appointed to represent defendant on appeal to the appellate court. On July 22, 1983, the appellate court entered its order, which affirmed the defendant's conviction. The time for filing a petition for leave to appeal from that order expired August 26, 1983, under our Rule 315(b) (87 Ill.2d R. 315(b)). On August 26, 1983, defendant's present counsel filed a motion for extension of time within which to file a petition for leave to appeal alleging that he had been retained to represent the defendant on August 25, 1983. In this motion it was alleged that the defendant did not receive a fair trial and that he did not have adequate representation by counsel at either the trial or the appellate level. He further alleged that he desired to raise issues on appeal to this court going to the merits of the case, and that he desired to avoid having any such issue treated as waived because of the failure of appointed counsel to raise them. Objections to this motion were filed by the State. This court denied the defendant's motion. On September 16, 1983, the defendant filed a motion to reconsider the denial of the previous motion and attached thereto the proposed petition for leave to appeal, which contained the alleged trial errors it is now asserted require the granting of a new trial. The petition for leave to appeal also asserted that the defendant was denied effective assistance of counsel in both the trial and the appellate courts>. Defendant's motion also asserted that it would be a waste of judicial resources for this court to deny the defendant's motion only to have him raise the same issues in the trial court in the post-conviction hearing proceeding (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.). We granted the defendant's motion and permitted the filing of the petition for leave to appeal.
The State, in its brief, argues that the defendant's failure to raise in the appellate court the issues now argued constitutes waiver. This court has held that issues that could have been raised in the appellate court, but were not, are deemed to have been waived. (Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 209; Harris Trust & Savings Bank v. Duggan (1983), 95 Ill.2d 516, 526.) However, this court has also held that under our Rules 366 and 615 (87 Ill.2d Rules 366, 615), this court may decide issues not presented to or decided by the appellate court. Gatto v. Walgreen Drug Co. (1975), 61 Ill.2d 513, 520; Hux v. Raben (1967), 38 Ill.2d 223, 224.
We do not view the Gatto and Hux decisions and the cases cited therein to be inconsistent with Hammond and Harris Trust. The rationale of Gatto is set out in Hux v. Raben (1967), 38 Ill.2d 223, 224, as being similar to the "plain error" concept expressed in our Rule 615 (87 Ill.2d R. 615). The court, in Hux, also stated:
"These provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system." Hux v. Raben (1967), 38 Ill.2d 223, 225.
We have held on many occasions that plain error is a limited exception to the general waiver rule. (See People v. Roberts (1979), 75 Ill.2d 1.) The requisites for applying this limited exception, as noted in Roberts and cases discussed therein, are not present in the case before us. Except to the extent discussed below, the waiver rule applies.
The trial errors raised by the defendant are not of constitutional dimension and cannot be urged as the basis for the reversal of a conviction under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.). However, since defendant may raise the question of trial counsel's competency under the Post-Conviction Hearing Act, it is appropriate that the alleged trial errors be considered as they relate to the question of the defendant's constitutional right to adequate legal representation. This court has held that the doctrine of waiver ought not to bar issues from consideration where the alleged waiver stems from incompetency of appointed counsel on appeal. (People v. Frank (1971), 48 Ill.2d 500, 503.) In Frank this court also stated that there is no obligation of appointed counsel to brief every conceivable issue on appeal and that it is not incompetence for counsel to refrain from raising those issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong. People v. Frank (1971), 48 Ill.2d 500, 505.
In the trial of this case defense counsel's strategy was to establish the killing as a justified homicide. In the opening statement defense counsel stated that he would raise the defense of self-defense and defense of the defendant's dwelling. Counsel sought to follow that plan through the trial.
Defendant now argues in this court that the trial court erred in foreclosing any evidence of the decedent's reputation for violence and what the defendant knew about the decedent. It is argued that this evidence was relevant to supply insight into the defendant's state of mind and his beliefs regarding the danger he was in. The trial court did not permit evidence of this nature because, as the court stated during a conference in chambers, there was nothing in the record to disclose that the decedent had committed an act of aggression. The evidence disclosed that the decedent had not argued with the defendant and he had not threatened him. It was not until the defendant went into his bedroom, procured his loaded pistol, returned to the living room, and pointed it at the decedent that there was any evidence of a conversation between decedent and the defendant. In a conference between the court and counsel in chambers the court, citing People v. Adams (1962), 25 Ill.2d 568, held that the reputation and character of the decedent could not be shown because there had been no evidence that he had committed an aggressive act.
We noted above that this issue was not raised in the appellate court by appellate counsel. As stated in People v. Frank (1971), 48 Ill.2d 500, it is not incompetence for counsel to refrain from raising issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong. In this case the trial judge based his rulings on the language of a decision of this court. He found that there was no evidence that decedent had committed an aggressive act. Whether or not that evaluation of the evidence is correct is not the question before us. We decide only that under these circumstances the defendant's appellate counsel's decision not to raise this issue on appeal is not patently erroneous.
Defendant now argues that there was some evidence that he had a subjective belief that the use of force was necessary and that the court should have sua sponte given a self-defense and voluntary-manslaughter instruction. During the instruction conference defense counsel objected to the State's issues instruction on murder, arguing that the State must also prove that the killing was not justified. The court agreed, saying that this presented a different question than the evidentiary question of decedent's reputation discussed above. The court held that under People v. Lockett (1980), 82 Ill.2d 546, if there is any evidence of self-defense then a manslaughter instruction should be given. The court then asked defense counsel if he had an issues instruction on murder which contained the element of justification. Defense counsel replied that he did but asked if his instruction were given would an instruction on manslaughter be automatically given. The court asked defense counsel if he was making a ...