APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
512 N.E.2d 1298, 159 Ill. App. 3d 892, 111 Ill. Dec. 661 1987.IL.1156
Appeal from the Circuit Court of Cook County; the Hon. Richard J. Petrarca, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendant James Winchel and Richard O'Donnell were indicted for the October 8, 1981, murders of Brad Roth and Michael Kelley. They were tried simultaneously, Winchel by a jury and O'Donnell by the bench, in the circuit court of Cook County. Winchel was convicted and sentenced to natural life in prison while O'Donnell was acquitted.
On appeal, defendant contends: (1) the State failed to prove him guilty beyond a reasonable doubt because the evidence against him was insufficient and because the guilty verdict returned by the jury was inconsistent with O'Donnell's acquittal by the trial court; (2) the admission of hearsay testimony of a motive for the murders and a statement by O'Donnell denied him a fair trial and the right to confront the witnesses against him; (3) the admission of perjured testimony denied him due process of law; (4) the State's failure to disclose evidence favorable to him concerning the background of a key State's witness denied him a fair trial; (5) the admission into evidence of statements allegedly made by him after he was taken into custody violated his Miranda rights; (6) he received ineffective assistance of counsel; (7) the trial court erred in sentencing him to a mandatory natural life sentence.
Shortly after 4 a.m. on October 8, 1981, Brad Roth and Michael Kelley were shot and killed in a gangway near 61st Place and Archer Avenue in Summit, Illinois. At trial, Richard Key and Michael Hubbard testified for the State. They testified that they ran into defendant Winchel and the victims around 7 p.m. on October 7 at Al's Hilltop Lounge. After leaving Al's Hilltop Lounge alone and going to several other bars, they went to 61st Place and Archer Avenue to buy some heroin. When Hubbard returned to Key's pickup truck after attempting the buy, they walked toward Doc and Joe Pelfrey's, a bar across the street and in front of which they saw defendant and the victims. According to Hubbard, when they reached the middle of Archer Avenue they saw defendant holding a gun on the victims and the gun "went off." At that point they decided to leave. As they were walking away, they saw defendant leading the victims into a gangway at gunpoint and O'Donnell following closely behind. After Hubbard and Key got into Key's pickup, they heard two gunshots in rapid succession and then drove away.
Jacqueline Foley also testified for the State. She had gone to Al's Hilltop Lounge with O'Donnell and Karen Slager at around 1:30 a.m. on October 8. Defendant and the victims were at the bar. O'Donnell told her that something was "going to go down" that night after she asked him to get Kelley away from her. Around 4 a.m., she, O'Donnell, defendant and the victims left the bar together and she asked O'Donnell for a ride home. They all rode in O'Donnell's car to 61st and Archer Avenue to buy some beer. O'Donnell and the victims left to buy the beer while she and defendant remained in the car. Shortly thereafter, defendant pulled out a gun, said, "Let's see if this works," and fired the gun in the car. Defendant then put the gun in his waistband, got out of the car and walked in the direction that O'Donnell and the victims had gone. After he left, Foley drove to the alley behind Doc and Joe Pelfrey's and immediately to the north of the gangway where the victims were shot. She moved the car without knowing where she was going because she was scared. After she parked the car in the alley, she heard two gunshots and immediately thereafter O'Donnell came around the corner of the alley and got in the car. She asked O'Donnell what happened and he said, "Jimmy put a gun to those guys' heads and shot them both." After they drove away O'Donnell took his shirt off, wiped his arms and hands with it and threw it out of the window. They then drove past the scene twice after she asked O'Donnell to go back to see what happened to defendant. Afterwards, they drove to her home where O'Donnell said they had better get their stories straight and that she should say he responded he "did not know" when she asked him what had happened.
James Fitzgerald, a truck driver for the village of Summit, testified he was working in the area of 61st and Archer at approximately 4 a.m. on October 8. He saw five people in a beige Nova going north on Archer Avenue at that time and later saw the car parked on 61st Place. As he approached the intersection of 61st Place and Archer Avenue, he saw defendant standing on the corner with his hand inside his waistband. He also saw three other men on the sidewalk, one of them two buildings away from defendant and the other two further down the block. Fitzgerald testified that the man standing alone appeared to be shouting at the other two, who were facing him. He continued north on Archer Avenue, parked in a gas station on 60th Place to wait for the streetsweeper he was working with and then heard "two loud pops." He then looked south down Archer Avenue and saw two men struggling, one of whom, Fitzgerald determined upon approaching the scene, was defendant. Sometime later, he saw the beige Nova passing by or near the crime scene, took down the license plate number and gave it to the police. Other than defendant and the three other men, he did not see anyone else on the street or a truck parked near 61st Place and Archer Avenue at the time of the incident and heard nothing else between the time he passed the men on Archer and heard the two "pops."
George Telford, a part-time Summit police officer, testified that, at approximately 4:15 a.m. on October 8, he heard two gunshots while he was getting into his car, which was parked on 61st Place near Archer Avenue. He then walked in the direction of the gunshots and, as he turned the corner of 61st Place and Archer Avenue, he passed a white male walking rapidly in the opposite direction who turned the corner and walked east on 61st Place. He then walked north on Archer Avenue and observed blood coming out of a gangway adjacent to a community center on the northeast corner of Archer Avenue and 61st Place. As he approached the gangway, he saw the bodies of two men on the ground and defendant standing over one of them. Officer Telford then pointed his gun at the defendant and told him to get his hands up and come out of the gangway. As defendant did so, the officer saw a gun in his waistband. He then grabbed defendant, forced him against a wall, heard a blunt sound similar to that of metal hitting concrete and then saw a weapon on the ground. He then forced defendant onto the ground and picked up the weapon before more officers arrived. Officer Telford had not heard a gunshot around 4 a.m. while sitting in the Rustic Pub near 63rd Place and Archer Avenue and did not see a pickup truck nor anyone in the street upon leaving the tavern.
Defendant first contends he was not proven guilty beyond a reasonable doubt because the evidence against him was insufficient and because the inconsistent verdicts returned by the Judge and jury created a reasonable doubt of his guilt. In asserting the insufficiency of the evidence, defendant argues that the only competent evidence against him is circumstantial because no one saw him commit the murders. He dismisses the testimony of Hubbard and Key as perjured. He maintains that, because of the circumstantial nature of the evidence, his conviction should be reversed if there is a reasonable hypothesis of his innocence.
While no one saw defendant commit the murders, the eyewitness testimony of his mere presence at the crime scene under suspicious circumstances constitutes direct evidence of guilt. (People v. Zenner (1979), 78 Ill. App. 3d 40, 54, 396 N.E.2d 1107.) Moreover, defendant's own testimony as to his presence at the crime scene and the circumstances surrounding the crime and Officer Telford's testimony as to his observation and apprehension of defendant at the scene of the crime also constitute direct evidence of guilt. (People v. Allen (1984), 124 Ill. App. 3d 710, 711-12, 464 N.E.2d 832.) Thus, even if the testimony of Hubbard and Key may have been perjured, the evidence against defendant was not entirely circumstantial and reversal of his conviction is not required simply because there is a reasonable hypothesis of innocence, i.e., O'Connell's guilt of the murders. Defendant's argument is based on the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) (IPI Criminal 2d), entitled "Definition of Circumstantial Evidence," which states, "You should not find defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence." This paragraph of IPI Criminal 2d No. 3.02 must be given, i.e., this qualification to a conviction applies only where the evidence is entirely circumstantial (People v. Minish (1974), 19 Ill. App. 3d 603, 312 N.E.2d 49), which is not the case here.
Moreover, that Hubbard's and Key's testimony may have been perjured, as allegedly shown at the post-trial hearing, does not require a reversal of defendant's conviction. In People v. Banks (1984), 121 Ill. App. 3d 279, 459 N.E.2d 992, the defendant contended that the evidence was insufficient to prove him guilty beyond a reasonable doubt. The court disagreed with the defendant, although it also held that, because his conviction was possibly based on perjured testimony, he was entitled to a new trial. The court stated, inter alia :
"The jury may accept all, part or none of the evidence presented at trial, and its determination should not be disturbed upon review unless it is so contrary to the evidence as to raise a reasonable doubt of defendant's guilt. [Citation.]
In finding defendant guilty of murder, based on the conflicting evidence . . ., the jury . . . obviously rejected defendant's account . . .. It is apparent that the jury did not accept defendant's testimony . . ..
Our review of the record persuades our Conclusion that, if believed by the jury, the evidence . . . was sufficient to support its verdict." (121 Ill. App. 3d 279, 286-87, 459 N.E.2d 992.)
Similarly here, the testimony of Hubbard and Key, although possibly perjured, along with the other evidence adduced at trial was more than sufficient to support defendant's conviction. Since defendant made no showing of perjury at trial, he cannot now contend that the jury should not have believed Hubbard's and Key's testimony.
That the evidence against defendant and O'Donnell may have been the "same in all important respects," does not mandate a reversal because of the inconsistent verdicts. Rather, the evidence against each defendant must be " identical in all respects " for such verdicts to raise a reasonable doubt of guilt. (Emphasis added.) (People v. Vriner (1978), 74 Ill. 2d 329, 343, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.) Where there is the slightest difference in the evidence against codefendants, the acquittal of one does not raise a reasonable doubt of the other's guilt. (People v. Stock (1974), 56 Ill. 2d 461, 465, 309 N.E.2d 19, overruled on other grounds, People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160.) Here, there was more than a slight difference in the evidence offered against defendant and O'Donnell. It suffices to recount a few of the most pivotal differences.
Hubbard and Key saw defendant, not O'Donnell, with the victims and holding a gun in front of Doc and Joe Pelfrey's. They saw defendant, not O'Donnell, escorting the victims into the gangway at gunpoint. They saw a fourth person, identified by Key as O'Donnell, run into the gangway behind defendant and the victims. Key testified this person did not have anything in his hands. Foley testified that defendant, not O'Donnell, produced a gun in O'Donnell's car and shot off a round. Fitzgerald saw defendant, not O'Donnell, holding his hand in his waistband where, Foley testified, he put the gun upon exiting the car. Finally, Officer Telford apprehended defendant, not O'Donnell, at the scene very shortly after two shots were fired and observed a gun in his waistband before it fell to the ground. Thus, defendant and O'Donnell were not tried on identical facts and O'Donnell's acquittal raises no reasonable doubt of defendant's guilt. Moreover, these differences in the evidence clearly show the fallacy of defendant's contention that the evidence against him was no stronger, and in fact weaker, than the evidence against O'Donnell.
Defendant next complains of the introduction of hearsay testimony of a motive for the shootings and a statement by O'Donnell which implicated defendant. He complains of several instances of hearsay motive testimony, some elicited by defense counsel and some by the prosecutor. He contends the testimony elicited by defense counsel was unresponsive to the question which it purported to answer and that he therefore should have moved to strike it but failed to do so. He also contends defense counsel failed to object to one of two instances of such testimony elicited by the State. He argues this hearsay testimony and the State's reference to it in closing argument denied him a fair trial and the right to confront the witnesses against him. The State contends this hearsay testimony was elicited as a result of trial strategy, which is not subject to review.
The hearsay motive evidence consisted of Key's testimony that "word went around that [the shooting] was over a pool game" and Hubbard's testimony that Kelley "had ripped some [drugs] off of" defendant. Defendant contends the prosecutor's questions to defendant's brothers, Thomas and William Winchel, as to whether they had heard that the victims had "ripped off" defendant also constitute hearsay motive evidence. We disagree. Both witnesses answered "No." It cannot then be said that the questions themselves were hearsay evidence or that defendant was prejudiced by the questions alone. Defendant also complains of the State's reference to the drug rip-off in its closing argument as proof of animosity between the co-defendants and the victims which led to the shootings. Foley testified on cross-examination, after being called as a defense witness, that when O'Donnell entered the car in the alley behind Doc and Joe Pelfrey's he said defendant "had just shot" the victims and "put the gun to their heads and pulled the trigger."
Hearsay is testimony of an out-of-court statement offered to prove the truth of the matter asserted which rests, for its value, on the credibility of the out-of-court asserter. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.) The basis of excluding evidence under the hearsay rule is the absence of an opportunity to determine the veracity of the testimony. (81 Ill. 2d 571, 577, 411 N.E.2d 223.) However, the admission of hearsay evidence is harmless error where "[considering] the evidence in its entirety, there is no reasonable possibility that the jury would have acquitted the defendant had the evidence complained of been excluded." (People v. Ward (1978), 63 Ill. App. 3d 864, 872, 380 N.E.2d 883; People v. White (1985), 134 Ill. App. 3d 262, 283, 479 N.E.2d 1121, cert. denied (1986), 475 U.S. 1126, 90 L. Ed. 2d 194, 106 S. Ct. 1650.
The hearsay testimony and the State's reliance on it in its closing argument did not deprive defendant of a fair trial. There was sufficient record evidence excluding this testimony to convict defendant. There is no reasonable possibility that, excluding this evidence, defendant would have been acquitted. As such, that his trial counsel contributed to the elicitation of the hearsay testimony through his trial tactics or strategy does not compel a contrary Conclusion.
Defendant next contends the introduction of the perjured testimony of Hubbard and Key precluded the State from proving him guilty beyond a reasonable doubt "through means consistent with the dictates of due process." At the hearing on defendant's motion for a new trial, Laura Shelley and Donald Ropele testified that Hubbard and Key were with them at the Brookfield Motel on the night of October 7 until the early morning hours of October 8. Attached to the motion for new trial were the affidavits of Shelley and Ropele in which they stated that Hubbard and Key told them in the summer of 1982 that they were going to testify against defendant and O'Donnell, although they were not present at the murder scene, in order to obtain leniency from the State on criminal charges pending against them. Defendant asserts that this evidence clearly established that Hubbard's and Key's testimony was perjured. He maintains this perjured testimony materially contributed to his conviction, thus necessitating a new trial, and shifted the burden to the State to show beyond a reasonable doubt that it did not contribute to his conviction. The State responds that the newly discovered evidence offered by defendant to show the alleged perjury did not meet the standard for granting a ...