Appeal from the Circuit Court of Cook County; the Hon. Romie
J. Palmer, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Tyrone Calhoun was indicted with Demetrious Adamopolous and Priscilla Orr for the murder of Jimmy Jackson and the armed robbery of Jackson and Joyce Anderson. Calhoun's trial was severed from the trial of his co-defendants, and a jury convicted him of all charges. The State requested the death penalty. Calhoun waived a jury for the death penalty hearing, and the court sentenced him to an extended term of 80 years for the murder and to 30 years for the armed robbery of Jackson, the sentences to run concurrently. In addition, Calhoun received a 20-year sentence for the armed robbery of Joyce Anderson to run consecutively to the other sentences. From this judgment Calhoun appeals, claiming that he was denied effective assistance of counsel.
According to Calhoun, the instances of his trial counsel's ineffectiveness fell into three categories: (a) where the defense presented did not amount to a defense as a matter of law, (b) when defense counsel abdicated the defendant's position, admitting his guilt, and (c) when defense counsel showed lack of familiarity with basic concepts of law and committed numerous trial errors which cannot be viewed as tactical maneuvers.
At trial, Calhoun's lawyer advanced the theory that Calhoun was part of a conspiracy to steal money from Jimmy Jackson and that Calhoun did stab Jackson but that those stab wounds did not cause Jackson's death. Calhoun's trial counsel argued that Jackson was killed by stab wounds in the neck inflicted by Joyce Anderson, acting independently of Calhoun. It is Calhoun's contention that even if this theory were established, it would not absolve him of the murder because of his participation in the chain of events that led to Jackson's death. We disagree.
Calhoun's trial counsel presented the testimony of Dr. Hicks, who testified that the knife wounds in Jackson's back would not have been fatal with proper medical attention. Hicks testified that the knife wound in the neck, severing the jugular vein, was the primary cause of death. Thus, counsel presented evidence that Calhoun's acts alone would not have caused Jackson's death, and there was a intervening intentional act which was the proximate cause of Jackson's death. This presents a valid defense to the charge of murder. People v. Gulliford (1980), 86 Ill. App.3d 237, 241, 407 N.E.2d 1094.
• 1 Calhoun argues that in the instant case these facts could not establish a valid defense because they show that Calhoun and Anderson shared a common design to kill Jackson, and therefore both were guilty of murder. (People v. Kolep (1963), 29 Ill.2d 116, 121, 193 N.E.2d 753.) However, in order for the State to show that Calhoun was accountable for Anderson's acts, it would need to show that Calhoun and Anderson shared a common plan to achieve a common goal in a "community of unlawful purpose." (People v. Patterson (1981), 102 Ill. App.3d 844, 850, 430 N.E.2d 574.) Evidence that earlier that day Calhoun committed the armed robbery of Anderson tends to show that Calhoun was not cooperating with Anderson, nor were they following a common plan. Trial counsel appropriately argued to the jury that Anderson's actions were independent of Calhoun's. Therefore, we find that trial counsel presented a valid defense to the charge of murder.
• 2 Calhoun next argues that his counsel abdicated his position and conceded his guilt in statements that Calhoun robbed and stabbed Jackson. However, counsel nowhere conceded that Calhoun was guilty of murder. From our reading of the record, defense counsel did not abdicate Calhoun's position as he now claims. The evidence of Calhoun's guilt of robbing and stabbing the victim was overwhelming. There was an eyewitness to the stabbing, Joyce Anderson, who was also a victim. Calhoun on three occasions admitted robbing and stabbing Jackson, and there was medical evidence corroborating his statements and the statements of Anderson. In the face of this evidence, a trial tactic in defense of a charge of murder which involves admission of some participation in what transpired cannot be labelled incompetence.
• 3 Calhoun claims that his trial counsel was grossly incompetent, showing a lack of familiarity with basic concepts of law, and therefore Calhoun was denied due process of law. Calhoun cites several instances in the trial record which supposedly illustrate the incompetence. Our attention is directed to counsel's opening statement to the jury in which he said:
"You see, ladies and gentlemen, I intend to prove to the Court and to you, to everybody in this room, that Mr. Jimmy Jackson was stabbed by two different people. Tyrone Calhoun did stab Mr. Jackson. He stabbed Mr. Jackson in the back. And you see through the confession that Mr. Calhoun admitted to, and which, by the way, you will also see, it was the confession of Mr. Calhoun which broke this case wide open because just prior to the confession of Mr. Calhoun, these people by the name of Adamopolous and this young lady by the name of Priscilla Orr were allegedly bystanders. They were only witnesses. They were not labeled defendants. And Mr. Calhoun surrendered himself as you will hear and gave his confession. When the case broke open, everything that Mr. Calhoun said was verified and it was with Calhoun's aid that resulted in the arrest and prosecution of Adamopolous and Orr. And I am not saying this for you to have sympathy for Mr. Calhoun in no way. And through this entire case I am not asking you to have sympathy for Calhoun. I am asking for you to be truth seekers. So when I tell you that we will prove that two people stabbed Jimmy Jackson, what I am also going to show you is that after Tyrone Calhoun panicked, after he stabbed Mr. Jackson and ran from the room, something happened to Mr. Jackson. And I am also going to prove to you that the stab wounds that Tyrone Calhoun inflicted did not cause the death of Mr. Jackson."
Calhoun contends that trial counsel shifted the burden of proof to Calhoun in this passage, and he prejudiced the defense by repeatedly referring to Calhoun's statement as a "confession." We disagree.
The jury was reminded at several points throughout the trial that the burden of proving Calhoun guilty beyond a reasonable doubt remained on the State. For example, defense counsel stated in closing argument: "Ladies and gentlemen, I keep mentioning the term reasonable doubt. The State has to prove beyond a reasonable doubt that * * * Tyrone Calhoun's actions were the cause of the death of Mr. Jimmy Jackson." On review of the record, we find that defense counsel did not shift to himself the burden of proving Calhoun's innocence.
Trial counsel referred to Calhoun's statements to the police as "confessions" as part of his defense to the murder charge. The State relied on one of Calhoun's statements in which Calhoun admitted robbing and stabbing Jackson. In taking that statement, an investigator asked Calhoun where he stabbed Jackson and Calhoun answered that he stabbed him in the back. The investigator did not challenge that answer. Trial counsel admitted that this statement constituted a confession of robbery and stabbing, but he used it as evidence that Calhoun only inflicted the nonfatal stab wounds in Jackson's back. His reference to the statement as a "confession" was an attempt to bolster the credibility of the statement. This tactic does not show trial incompetence. The same can be said of defense counsel's use of the word "mug shots," the adduction of evidence of the victims drinking, or witness Joyce Anderson's morals. Indeed, trial counsel in his summation to the jury gave a good explanation of his line of questions: "It was my intention only to give you an honest and accurate portrayal of the people in this tragic and unnecessary scenario." We cannot say even from hindsight that this approach showed professional incompetence.
• 4 Calhoun also claims that the State's closing argument denied him a fair trial. He complains that the prosecutor stated his personal opinion of defense counsel's presentation in the following remarks:
"At the beginning of this case [defense counsel] made some promises to you. And I don't think that he has fulfilled any of those promises that he made to you. He also told you some things that I believe are not true. And one of the things that he told you was that Jimmy Jackson was killed by two different people. Now, there has never been any evidence produced in this trial that would indicate in any way that there was any more than this one murderer (indicating), one person who stabbed Jimmy Jackson to death."
The record shows that defense counsel in his opening statement did tell the jury that two people stabbed Jackson, and then at trial he offered no direct evidence of two stabbers. The prosecutor was not obliged to accept inferences to that effect which defense drew from the "confession" and the ...