Appeal from the Circuit Court of Cook County; the Hon. Thomas
R. Fitzgerald, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant William Simpson was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)), and sentenced to 32 years' imprisonment. In this appeal from his conviction, defendant raises the following questions for review:
1. Whether defendant's inculpatory statements to police during custodial interrogation should have been suppressed on the ground that he was arrested without probable cause.
2. Whether the defendant's inculpatory statements to police during custodial interrogation should have been suppressed as involuntary on the ground that he was undergoing heroin withdrawal at the time he made the statement.
3. Whether testimony by defendant's mother-in-law regarding a conversation she overheard between the defendant and his wife was protected by the marital privilege and consequently improperly admitted at trial.
4. Whether the defendant was deprived of a fair trial because certain State witnesses and the prosecuting attorney referred to other crimes allegedly committed by the defendant, and because of allegedly prejudicial and inflammatory statements by prosecuting attorneys at various stages in the trial.
5. Whether the trial court committed reversible error by refusing to give voluntary manslaughter instructions based upon unreasonable belief in self-defense and based upon sudden and intense passion resulting from serious provocation.
6. Whether the defendant was denied effective assistance of counsel where the trial court refused to grant him substitute counsel to argue a post-trial motion for a new trial based upon his trial counsel's failure to call certain alibi and impeachment witnesses.
7. Whether the defendant was denied effective assistance of counsel where his trial counsel failed to call certain alibi and impeachment witnesses.
We find that the trial court's failure to appoint substitute counsel to argue defendant's post-trial motion for a new trial based upon ineffective assistance of counsel requires remandment of the cause for a new post-trial hearing on this motion, where defendant will be represented by counsel other than the public defender's office. In view of this determination, we do not address defendant's claim that his trial counsel's failure to call certain witnesses constituted ineffective assistance of counsel. We do address defendant's remaining allegations of error, but find them insufficient grounds to grant him a new trial.
The record reveals the following pertinent testimony and evidence. Because the defendant does not argue that he was not found guilty beyond a reasonable doubt, only a summarization of the relevant evidence and inferences therefrom need be restated here.
Defendant was convicted for the murder of William Drake. The evidence produced at the suppression hearing and at trial established that the defendant had suspected Drake of having an adulterous relationship with the defendant's wife, Tecumseh Berry. Defendant and Berry were married on August 7, 1979, while defendant was incarcerated in the penitentiary. Berry testified that she had known Drake for about 16 to 17 years and had been having an affair with him, but that it terminated in August 1980. The defendant was released from prison in August 1980 and moved in with Berry, who was living with her mother and son (defendant was not the father of Berry's son). The record is unclear whether the defendant suspected the involvement between Berry and the decedent prior to his release from the penitentiary or only after he was released and began living with Berry. The record also does not disclose explicitly whether the defendant was aware of their prior involvement when he married Berry, although there was evidence that the defendant did not personally know Drake or his specific identity before his release. In any event, the record establishes that the defendant, once released, suspected that the relationship had not terminated.
The record indicates that during the first few months that the defendant lived with Berry, the defendant on more than one occasion confronted Berry with his suspicions of her relationship with Drake; when Berry denied any involvement, defendant would become angry. There is some evidence in the record that on at least one occasion the defendant became violent and threatened Berry with a knife during the course of the confrontation. There is also evidence in the record that on at least a few occasions the defendant threatened to "get" Drake because of his relationship with Berry, or made some equivalent threat against him.
The last confrontation between the parties occurred on October 16 or 17, 1980, roughly two weeks before Drake was killed. At that time, Berry, her mother, and Drake were talking in Berry's living room. The defendant entered the room; apparently he had returned to gather his belongings because he was moving out of the residence, since the defendant and Berry were considering divorce. When defendant entered the room and discovered Drake in the presence of Berry and her mother, defendant crudely informed Drake that he wanted Drake to terminate his involvement with his wife. Drake responded that the defendant should not use vulgar language about Berry in front of her mother, and told the defendant that they could discuss the matter outside the presence of the others. The defendant answered that he would "see you [Drake] later" and went to another room to gather his possessions. He then departed from the apartment.
On October 29, 1980, Drake was found lying on the street at the corner of 71st Street and Stewart Avenue. He had one gunshot wound in the lower back. It was stipulated at trial that the gunshot wound was the cause of death. There were no eyewitnesses to the incident, nor anyone who had seen Drake or any other individual at or near the scene near the time of death. No fingerprints were recovered from the scene, nor any weapon. No firearm linked to the event was ever recovered.
Detectives of the Chicago police department initially assigned to investigate the homicide spoke with Berry, her mother, and her son a few days after the incident and learned from them of the confrontations between the defendant, Berry, and Drake regarding her relationship with Drake. Although the officers attempted to locate the defendant to speak with him regarding the incident, they were unable to find him. As a result, they left word at the home of his mother that they wished to speak with him. They also issued a stop order an internal police notification to fellow officers that the individual is wanted for questioning.
On December 28, 1980, at roughly 3:30 p.m., defendant and a companion were arrested for shoplifting from a grocery store and taken to the Sixth District station. The defendant gave the name of "Oscar Williamson" and gave an incorrect date as his date of birth. He was charged with theft and fingerprinted. At roughly 10 p.m., officers of the Sixth District determined that his true identity was William Simpson and that he was wanted by Area 3 officers for questioning regarding the Drake homicide. The defendant was transported by Detectives Brankin and Moser of Area 3 to that station house at roughly 11:30 p.m. that evening. When the defendant inquired about the reasons for such transportation, the detectives told him he was wanted for questioning and advised him of his rights under Miranda.
Defendant was questioned regarding the homicide at approximately 9:30 a.m. the following morning. At that time, he was questioned by Detectives McWeeny and Higgins, who first advised him of his Miranda rights. According to the officers, the defendant voluntarily explained to them that he had shot Drake on October 29. The defendant specifically told them, in substance, the following sequence of events which culminated in Drake's death. Defendant stated that following his confrontation with Drake in the presence of Berry and her mother on October 16 or 17, he contacted Drake and arranged to meet with him at the corner of 71st Street and Stewart Avenue at 11 p.m. on October 29, 1980. At this encounter, the defendant again informed Drake that he wanted him to end his relationship with Berry. Drake responded that he had known Berry longer than the defendant had. The defendant stated that this was not important since Berry was his wife. Drake then asked whether the defendant was threatening him; the defendant responded that Drake could "take it any way he wanted to." Drake then turned away from the defendant and opened the door and reached into his van, next to which the two had been standing during the conversation. As Drake reached into the van, the defendant shot him in the back. The defendant then fled the scene. The defendant gave substantially the same explanation of his commission of the crime to Assistant State's Attorney Dane Cleven, to whom the defendant spoke later on the morning of December 30. The defendant refused to sign a written confession.
At the trial, defendant testified on his own behalf. He denied knowing whether Berry was having an affair, denied knowing Drake, denied making any threats of harm to Drake, and denied confronting Drake about his relationship with Berry in the living room of Berry's apartment on October 16 or 17. He also maintained that he had not shot Drake but presented the alibi that he had been at his mother's house playing cards on the night in question.
Following a jury trial, defendant was found guilty of murder and sentenced to 32 years' imprisonment. His ...