APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
505 N.E.2d 365, 152 Ill. App. 3d 1007, 106 Ill. Dec. 59 1987.IL.30
Appeal from the Circuit Court of Fulton County; the Hon. Charles H. Wilhelm, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. STOUDER and WOMBACHER, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
Arlen Bell was charged by information with the murders of his parents, Howard and Nancy Bell. Following a jury trial in the circuit court of Fulton County, Bell was found guilty of both murders and sentenced to natural-life imprisonment. On appeal, Bell seeks to have his convictions reversed and the cause remanded for a new trial. The defendant asserts that his appointed defense counsel committed multiple errors, the cumulative effect of which denied him effective assistance of counsel. We agree with the defendant. Accordingly, we reverse and remand for a new trial.
Howard and Nancy Bell were shot to death on March 8, 1985. The State maintained that the Bells were killed by their eldest son, Arlen, because of some long-standing family disputes they had been unable to resolve. During the initial stages of the investigation of the murders, which began on the evening of March 8, the defendant claimed he was not present when his parents were shot. Later that evening, the defendant agreed to accompany law-enforcement officers to his home and to let them see the clothing he wore earlier in the day. While en route to his apartment, Bell told Lieutenant Daniel Daly of the Fulton County sheriff's department that he killed his father in self-defense after he saw his father kill his mother. After the defendant and the law-enforcement officials left Bell's apartment with .22-caliber ammunition and empty casings and the clothing he had worn earlier, they went to an interview room at the Galesburg police department, where Bell was given Miranda warnings and agreed to answer additional questions. Daly said that Bell originally repeated that he killed his father in self-defense after he saw his father kill his mother. According to Daly, after he and Bell spoke further, Bell later confessed to Daly that this version, too, was incorrect and that he actually shot and killed both of his parents. Upon Daly's request, Bell repeated the last statement of events so that it could be tape-recorded.
When he testified at trial, the defendant again denied killing his mother and stated that he killed his father in self-defense. Bell testified that on the afternoon of his parents' deaths, his father and mother argued and his father was verbally abusive to both Arlen and his mother. He testified that he left his parents alone and went outside. Arlen stated that approximately 20 minutes later, his father came outside and began striking him and yelling at him, and continued to do so as they returned to the house. After they entered the family home and his father went into the bathroom, Arlen discovered that his mother had been shot while lying on the couch. Arlen testified that he picked up the .22-caliber rifle he saw near the front door, then observed his father running at him with a folding chair. Arlen said that he screamed at his father to stop but he did not, so Arlen shot him in the side. Howard Bell then returned to the bathroom and shut the door; Arlen stated that he fired several shots through the door because he was frightened and did not want his father to come after him again. Howard Bell then exited the bathroom. Arlen said that his father struggled for possession of the rifle, knocked him down, and told Arlen that he was going to kill him. His father then fell down, according to Arlen, and Arlen shot him several times, killing him. There were no other witnesses to the murders, and Bell was the only person who testified for the defense.
After the jury found him guilty of the murders, Bell filed pro se motions for a new trial and for appointment of new counsel on grounds that he received ineffective representation from John Clark, the public defender of Fulton County. Thomas Maas was appointed to consult with the defendant and advise him with respect to these motions, and Clark was permitted to withdraw as Bell's attorney of record. Bell's motion for a new trial was denied and the office of the State Appellate Defender was appointed to represent him for purposes of this appeal. On appeal, Bell alleges that the representation he received from John Clark failed to subject the State's case to meaningful adversarial testing and that, but for counsel's errors, the outcome of the trial would have been different. Bell contends that Clark made the following errors: (1) failed to adequately investigate, interview, and call to the stand seven witnesses who were known to him and whose testimony would have corroborated Bell's self-defense theory; (2) failed to impeach the testimony of the defendant's brother, Kevin Bell, who was a critical witness for the State and whose unimpeached testimony left the jury with the impression that Howard and Nancy Bell were nonviolent individuals; (3) failed to file a motion to suppress the defendant's confession to Officer Daly of the Fulton County sheriff's department although there was evidence that the statements were involuntary; (4) failed to tender a jury instruction for the lesser included offense of voluntary manslaughter even though Bell testified that he acted in self-defense; (5) failed to object to any of the 133 exhibits offered by the State, including the tape-recorded statement, the typed transcript of the statement, and nine exhibits containing bloodstains which were not identified as human blood; (6) failed to offer evidence to show that the allegations of child abuse filed against the defendant by his parents were determined to be unfounded by the Department of Children and Family Services; (7) failed to request a court-ordered examination of the defendant by a psychiatrist selected by the defense and failed to request a fitness hearing in spite of Bell's history of mental problems; (8) failed to object to improper questioning by the prosecutor during voir dire which served to indoctrinate the jurors as to the State's theory of the case; (9) failed to object to improper and prejudicial comments made by the prosecutor during closing arguments; (10) failed to move for a change of venue; and (11) failed to seek a pretrial order compelling the Department of Children and Family Services to disclose information obtained during the investigation of reports of child abuse in Howard and Nancy Bell's home.
Whether the representation by his attorney denied the defendant effective assistance of counsel is to be determined under the standard set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 525-527, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061. A defendant must show that his trial counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result would have been different had there not been ineffective assistance of counsel (Strickland v. Washington (1984), 466 U.S. 668, 687-695, 80 L. Ed. 2d 674, 693-698, 104 S. Ct. 2052, 2064-2068). A reviewing court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance (466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065-66); additionally, errors in trial strategy or judgment alone do not establish that the representation was incompetent (People v. Howard (1981), 94 Ill. App. 3d 797). Thus, the general rule is that courts will not disturb a conviction on the basis of ineffective assistance of counsel unless the totality of counsel's conduct indicates his actual incompetence. Judging Clark's performance by the standards established in Strickland, we are compelled to find that due to the cumulative effect of trial counsel's errors, his duty to his client was inadequately discharged and that Bell was sufficiently prejudiced to be entitled to a new trial.
Bell asserts that Clark's failure to adequately investigate, interview, and call several available witnesses to testify constituted incompetence which substantially prejudiced his case. Bell's defense at trial was that his father killed his mother and that he then shot his father in self-defense. He contends that the witnesses could have testified about the victims' violent and abusive characters and about Howard Bell's specific acts of past aggression toward the defendant. Bell maintains that this testimony would have supported his otherwise uncorroborated defense. A victim's aggressive and violent character can support a theory of self-defense in two ways. First, the defendant's awareness of the victim's violent tendencies may make the use of deadly force a reasonable response to threatening behavior in an altercation. Second, evidence of the victim's propensity for violence lends support to the defendant's version of the facts where there are conflicting versions of the events. People v. Lynch (1984), 104 Ill. 2d 194, 199-200.
The evidence of what occurred here, as is often the case where self-defense is raised, is incomplete and conflicting. To decide how the events of March 8 really transpired, the jury needed all the available facts, including evidence of the victims' aggressive characteristics, and especially of Howard Bell's violent tendencies. Arlen Bell asserts that this evidence was available. Attached to the defendant's amended motion for a new trial are the affidavits of seven potential witnesses, including Howard Bell's mother, Agnes, Nancy Bell's brother, the pastor at the church Howard and Nancy attended, and the administrator at the nursing home where Agnes Bell resided when the Bells were shot. A review of the affidavits of the seven potential witnesses suggests the following: that Howard and Nancy Bell were known for their violent and sometimes explosive tempers; that Howard and Nancy Bell engaged in heated arguments with one another; that Howard and Nancy Bell were visibly upset when they visited Agnes Bell at the nursing home on the morning of their deaths, and because Nancy was loud and abusive toward Agnes, they were asked to leave the nursing home; that on several occasions the defendant's parents threatened and physically abused Arlen and his younger brother, Kevin; and that Clark did not interview five of the seven potential witnesses. Clark was questioned during the hearing on Bell's motion for a new trial and admitted that he did not speak to several of the potential witnesses. His testimony was somewhat conflicting, however, as he also testified that he at least had contact with six of the seven affiants. In spite of this claimed contact, Clark's testimony did not sufficiently rebut the allegations in the affidavits that he failed to thoroughly interview five of the witnesses about matters pertaining to Arlen Bell's case.
Clark maintained that he did not call any of the potential witnesses because their testimony would have conflicted with Bell's theory of self-defense. The State argues also that counsel's decision was a matter of trial tactics and not reviewable. As a general rule, whether to present certain witnesses is a tactical decision which will not be reviewed and cannot support a claim of ineffective assistance of counsel. (People v. Greer (1980), 79 Ill. 2d 103, 121-23.) Counsel's actions in the instant case do not fall neatly within the category of an unreviewable tactical decision, however. Clark admitted that he did not speak to several of the potential witnesses about Arlen Bell's case or the events which preceded the Bells' deaths, and as Greer indicated, the failure to interview witnesses may indicate incompetence when trial counsel knows of the witnesses and their testimony may be exonerating. (79 Ill. 2d 103, 123.) Without having thoroughly interviewed all of the potential witnesses about the events leading up to the Bells' murders, it was impossible for counsel to determine that their testimony would have been worthless or inconsistent with the theory of self-defense.
The failure to adequately interview and call any of these available witnesses was particularly damaging because, as indicated earlier, Arlen Bell was the sole witness for the defense. Had at least a few of these potential witnesses testified at trial, and had their testimony been as their statements now indicate it would have been, much of the testimony would apparently have been admissible, relevant, and supportive of the account of events the defendant gave at trial. Without the benefit of the testimony of any of the potential witnesses, the defendant's testimony stood alone, ...