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06/29/88 the People of the State of v. James Berry

June 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES BERRY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

526 N.E.2d 502, 172 Ill. App. 3d 256, 122 Ill. Dec. 243 1988.IL.1014

Appeal from the Circuit Court of Cook County; the Hon. Arthur Cieslik, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. McNAMARA and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

This appeal involves the second of two jury trials which defendant, James Berry, had with respect to this matter. In the first trial, defendant was found guilty of murder and armed violence and sentenced to a term of 30 years in the Illinois Department of Corrections. On appeal, we reversed and remanded because (1) the trial court failed to give Illinois Pattern Jury Instructions, Criminal, No. 25.05 (1968) (hereinafter IPI Criminal) to the jury and (2) defendant was denied effective assistance of counsel. (People v. Berry (1982), 111 Ill. App. 3d 487, 444 N.E.2d 593.) The Illinois Supreme Court affirmed the judgment of the appellate court because of the trial court's failure to give IPI Criminal No. 25.05, but the court did not address the other issues that had been raised by defendant. (People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742.) In the second trial, defendant was convicted of murder and sentenced to a term of 25 years. On appeal, defendant contends that: (1) his constitutional rights to testify and to present a defense were violated by his trial counsel's refusal to permit him to testify; (2) the trial court erred in refusing to admit into evidence defendant's post-arrest statements to the police; and (3) the trial court erred in refusing to instruct the jury on voluntary manslaughter resulting from serious provocation. We affirm.

On the evening of September 13, 1978, defendant went to the apartment of Gertrude Hollie in Chicago. He was there less than one hour when a friend arrived. Shortly thereafter, he and his friend went on the porch just outside the apartment. While defendant was on the porch, Richard Spaulding, who lived in the apartment with Gertrude Hollie, entered the apartment. Billy Hollie, Gertrude Hollie's brother, was also in the apartment.

A short time after Spaulding entered the apartment, defendant returned. Spaulding told defendant, "You sold me some bad Marijuana, and I don't want you at my house," or "I don't want you speaking to me anymore." The two men argued for 15 to 20 seconds. Defendant told Spaulding that he would not return the $5 Spaulding paid for the marijuana. Spaulding raised a clenched fist to strike defendant. Gertrude Hollie stepped between the two men and pushed Spaulding away from defendant and into the kitchen, a distance of three or four feet. Defendant then reached into his waistband, withdrew a gun, cocked it, aimed and fired at Spaulding. The bullet hit Spaulding in the chest and killed him. Defendant was approximately 8 to 10 feet from Spaulding when he shot him. Spaulding did not have anything in his hands at the time.

Defendant cocked the gun again and aimed it into the kitchen. Billy Hollie then grabbed defendant's hand, causing the gun to be pointed upward, and a second shot was fired in an upward direction. Billy Hollie and defendant struggled. Billy Hollie pushed defendant out the door and locked it. Defendant left the scene.

The shooting incident occurred between approximately 10:30 and 11 p.m. At 2 a.m., Detective James Minogue went to defendant's apartment. Defendant identified himself and said, "I am the one you are looking for; I did it. I shot him. Let's go to the police station." Defendant was then placed under arrest and given Miranda warnings. At 2:30 a.m. and at 4 a.m., while he was at the police station, defendant voluntarily gave two oral statements to the police in which he stated that Spaulding pulled a gun on him first and then defendant shot Spaulding in self-defense as Spaulding was turning to shoot him. Later, at 6:15 a.m., defendant voluntarily gave a written statement to the police in which he stated that at the time of the incident, he was carrying a gun on his right side inside his pants, covered by his shirt; he and Spaulding argued over some "bad reefer" and Spaulding told him he was going to shoot him. Gertrude Hollie then pushed Spaulding back and told Spaulding not to do it. Spaulding, however, turned around and pointed a pistol at defendant, and he then pulled out his gun, cocked it, and pointed it at Spaulding. The gun went off, and while defendant and Billy Hollie were wrestling, the gun went off a second time. Contrary to defendant's post-arrest statements to the police, the evidence is that Spaulding did not have a gun.

At trial, defendant did not testify. Detective Minogue testified as to his investigation and defendant's prearrest statement. However, on direct examination Minogue was not questioned as to the oral and written post-arrest statements that defendant had given at the police station (the post-arrest statements). On cross-examination, and later on direct examination, defendant was precluded from questioning Minogue as to the post-arrest statements.

Although defendant was represented by counsel at trial, he filed a pro se motion for a new trial. In his motion, defendant claimed for the first time that "his constitutional rights to testify and to present a defense were violated by trial counsel's refusal to permit him to testify." Defendant claimed that without his testimony, his claim of self-defense had no evidentiary support and that, therefore, he had ineffective assistance of counsel. Defendant makes the same claims for his first point on appeal.

The record shows that at the hearing on the motion for a new trial, defendant introduced no evidence that he had asserted or indicated a desire to testify at trial, or that his attorney had refused to allow him to testify. The trial Judge asked defendant if he wished to submit any evidence with regard to his motion, and defendant declined. The trial Judge stated: "Mr. Berry, do you care to submit anything to your motion, with reference to the motion for a new trial?" Defendant responded: "I don't want to argue. I will let it stand."

When a defendant insists upon testifying at trial and his counsel refuses to allow him to testify on the basis of trial strategy or otherwise, counsel must accede no matter how irrational defendant's insistence to testify may appear. (United States v. Curtis (7th Cir. 1984), 742 F.2d 1070, 1074.) However, that is not what occurred here. In the present case, defendant did not give any indication to either the trial court or defense counsel that he wanted to testify until after the jury found him guilty. As a result, we conclude that defendant's failure to testify was a matter of trial strategy with which he agreed. Moreover, defendant's failure to testify does not demonstrate that he had ineffective assistance of counsel. Whether a defendant testifies in a criminal case ...


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