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06/20/96 PEOPLE STATE ILLINOIS v. ERIK WARD

June 20, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ERIK WARD BIRDSALL, APPELLANT.



The Honorable Justice McMORROW delivered the opinion of the court: Justice Miller, dissenting: Chief Justice Bilandic and Justice Heiple join in this dissent.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

Defendant, Erik Birdsall, was convicted of first degree murder, attempted murder, aggravated battery with a firearm, and armed robbery. The trial court sentenced defendant to death. On appeal, defendant contends that he received ineffective assistance of counsel and that various trial errors denied him due process of law. Specifically, defendant claims that his counsel mistakenly believed that defendant would be entitled to acquittal if he were found not to be the actual shooter, and because of this erroneous view, conceded defendant's guilt to participation as an accomplice in the crimes charged. Defendant also argues that his counsel was ineffective for failing to request a fitness hearing notwithstanding counsel's awareness that defendant was taking psychotropic medication and had a history of mental problems. Defendant further cites three instances of alleged error in connection with the sentencing proceedings and challenges the Illinois death penalty statute as unconstitutional.

We hold that defendant was entitled to a fitness hearing pursuant to statute and precedent of this court; accordingly, we reverse and remand the cause for further proceedings.

BACKGROUND

In June 1993 one man was murdered and another wounded following a party held in the victims' apartment in Davenport, Iowa. The deceased, Charles Kunkle, and his roommate, Earl Houck, had hosted a beer party in their apartment earlier in the evening of June 5, 1993. William Horton, Raymond Smith, and defendant, all of whom had attended the party, returned to the victims' apartment in the early morning hours of June 6 and told Kunkle they had found him a girlfriend and would take him to meet her. Kunkle and Houck accompanied defendant and Horton to Smith's car, and all five men then drove to the "Big Island" area of Rock Island County, near the Mississippi River. According to testimony of the survivor, Houck, defendant said "the girls might be out fishing at this place."

Smith stayed in the car. Horton and defendant walked toward the shoreline of the river with Houck and Kunkle. When the victims saw that there were no girls, Houck started back toward the car. He stopped when he saw defendant holding a gun. Defendant told Houck and Kunkle to get down on the ground. Defendant then fired a shot into the air, after which Houck and Kunkle lay down, about five feet apart.

According to Houck's trial testimony, Horton held him down while defendant approached Kunkle and shot him in the back of the neck. Houck testified he saw defendant pulling his hand away from Kunkles' rear pants pocket. Next, Houck was shot in the back of the neck by someone who stood over him. Houck did not see who shot him, and agreed it could have been Horton, although Houck believed that it was defendant. Either Horton or defendant searched Houck's pockets but did not take his food stamps.

Autopsy evidence revealed that Kunkle was killed by a contact wound to the neck, probably made by a .22-caliber handgun. Other medical evidence indicated that Houck had been shot in the back of the neck and slightly to one side of the midline. Neither of the two bullets fired into the victims were recovered. A gun that was recovered from codefendant Horton's car was a .22-caliber "J.C. Higgins Ranger" model. Police did not test fire the weapon.

Defendant's former girlfriend, Michelle Markley, testified that when she and defendant arrived at the party, defendant was paged by Horton. She overheard defendant tell Horton over the telephone to "bring the Ranger *** in case there's trouble." Markley stated that defendant also told her he expected to receive approximately $1,500 to $2,000. After Horton and Smith arrived at the party, Markley testified, the three men stepped out to discuss "business."

According to Markley, she, defendant, Horton and Smith left the party in Smith's car at approximately 2:30 a.m. The three men left Markley at a parking lot where she was meeting a friend and defendant told her he would return soon. Two hours later, the codefendants returned in Smith's car. Horton was taken to his house and Markley saw him put a bag inside his parked car at his home. Smith drove Markley and defendant to Markley's house. Markley testified that defendant took something from the dashboard of the car, which she believed to be food stamps because she later found $100 worth of food stamps which were not hers. According to Markley, defendant told her he was "going to jail now" but denied shooting anyone. Markley said she never saw a gun during the evening.

Codefendant Horton testified pursuant to a plea agreement under which he was to receive no more than 80 years in prison. He stated that defendant's reference to the "Ranger" in the telephone conversation was to indicate that Horton should bring his .22-caliber pistol with him to the party. According to Horton, defendant suggested that he, Horton and Smith rob Kunkle and Houck. Horton claimed that defendant made reference to "capping the faggots," which Horton understood as a reference to shooting them. Horton admitted that he let defendant take Horton's gun from a green bag. He testified that after the three codefendants took Markley home they drove to a grocery store, where they discussed a plan to rob the victims. The men drove back to Houck and Kunkle's apartment and induced them to come with them in Smith's car by claiming that Markley and her girlfriend wanted to talk to Houck and Kunkle.

Horton's description of the shootings was similar to that of Houck's. When the five men arrived at Big Island, all but Smith left the car. According to Horton, defendant displayed the gun and ordered everyone to the ground. Horton said that defendant shot both victims. However, he did not see defendant take any food stamps from Kunkle or go through Houck's pockets. Horton denied that he went through the pockets of either victim. On the way back to the car, defendant told Horton, "I told you I could."

Horton further testified that after the shootings Smith drove him home and Horton put his green bag into his own car. The bag contained the gun, shell casings, a rope, and a knife that Horton said he found in Smith's glove compartment. Horton claimed that defendant threatened him to keep quiet but also offered Horton food stamps and a wallet, which Horton said he did not accept.

Raymond Smith testified pursuant to a plea agreement under which his prison sentence was not to exceed 30 years. He stated that he overheard the two other defendants speak of "capping faggots," which Smith took to mean that they were considering shooting someone. Smith claimed that Horton and defendant planned the robbery and discussed beating the victims "if necessary."

Smith testified that he did not see what happened at Big Island, but heard three gunshots after the others left the car and walked toward the river. Smith did not see any gun, wallet, or food stamps. Although he assumed that Horton's bag contained a gun, Smith claimed he did not know there was going to be a shooting. Smith further stated that Horton and defendant discussed food stamps and defendant offered them to Smith, who declined the offer.

After police spoke with Houck, defendant was arrested and given the Miranda warnings. He then gave a tape-recorded statement to the police in which he admitted accompanying the victims and the codefendants to Big Island ...


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