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December 26, 1996


Appeal from the Circuit Court of Cook County. No. 94--CR--20387. Honorable Ronald A. Himel, Judge Presiding.

As Corrected December 30, 1996. As Corrected January 22, 1997. Released for Publication February 13, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Greiman, J., concurs, Tully, P.j., dissents

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Following a bench trial, defendant, Nicholas Heiman, was convicted of the first-degree murder (720 ILCS 5/9-1(a)(2) (West 1992) of Erven Etcheson and was sentenced to 55 years' imprisonment. On appeal, he asserts that (1) he was not proven quilty beyond a reasonable doubt; (2) he did not receive a fair trial because of the trial court's bias toward him and his witnesses; (3) he was denied effective assistance of counsel because the trial court would not allow his attorney to present a proper closing argument; and (4) the trial court made findings of fact not supported by the evidence. We reverse and remand for a new trial because the trial court's conduct denied defendant a fair trial.

Norma Hampton, the victim's fiance, testified that she and Etcheson met defendant and his wife, Twila, at a neighborhood bar at 7 p.m. on July 9, 1994. After drinking and socializing for a couple of hours, Hampton and Twila drove defendant home because he said he was drunk, then met Etcheson at another bar. When they arrived, Etcheson was talking to Dennis King, whom Hampton had never met. After that bar closed, King, Etcheson, and the two women went to another bar, where they stayed until 3:40 a.m.

King drove everyone home. When he arrived at Twila's apartment building, defendant was standing on the corner. Defendant dragged Twila from the car, then punched her a couple of times causing her to fall to the ground. King grabbed a tire iron from under the car seat, got out of the car, and tried to hit defendant with the tire iron, but defendant grabbed it from him, then chased him back to his car.

After King sped away, defendant returned to the location where Hampton and Etcheson were attending to Twila. Etcheson remarked, "Nick, don't you think that's enough," and defendant struck him with the tire iron using a round, sweeping, sidearm action. The two men were facing each other and the blow landed at the rear base of Etcheson's skull, causing him to fall.

Hampton ran to call 911. When she returned, defendant was cussing at her from across the street and Twila was holding Etcheson's head. Etcheson was unconsious and having convulsions. The next night, defendant left a message on Hampton's answering machine, "Bitch, you're dead, bitch."

Dr. Cynthia Porterfield, the Cook County Deputy Medical Examiner who performed the autopsy on Etcheson, testified that the only external injury was an abrasion on the back of the right side of his head. There was no skull fracture, but there was bleeding between the scalp and the skull on the back of his head. On the right side of his brain was a small subdural hematoma, which is bleeding between the membranes surrounding the brain. There was also swelling of the brain and blood in the brain's ventricles. It was Dr. Porterfield's opinion that death resulted from cerebral injuries caused by blunt trauma to the head and Etcheson's wounds were consistent with his being struck with a tire iron.

Chicago Police Detective John Boyle was assigned on July 11, 1994, to investigate an aggravated battery on Etcheson. He testified that he interviewed Hampton and Twila, but could not find defendant. Five days after Etcheson died, defendant called Boyle and admitted being involved in the incident. He told Boyle that he did not intend to kill Etcheson, who was a friend, and had thrown the tire iron on the roof of the building across the street from the incident.

Defendant tendered Dr. Paul W. Geiger, a general practitioner and the father of defendant's attorney, as an expert in the field of emergency medical care, which Dr. Geiger practiced intermittently during his 29 years as a physician. Although the trial court expressed reservations about Dr. Geiger's relationship to the defense attorney, he was nevertheless qualified as an emergency medical care expert. The court stated as follows:

"I certainly find a vast amount of training here. I am more bothered by the relationship which shows an interest or bias.

I am going to let him testify with the thought in mind that my wife, my son, or my father could not practice in this courtroom, nor do I think it is a proper thing to -- you know, especially if you are not even going to pay your dad, to have him come in and testify. It certainly does show to me at least an indication that it might be a little more favorable to the son's position. But I will allow you to ask questions of your father as an expert in emergency care."

The defense attorney then attempted to question Dr. Geiger about any remuneration the defense attorney was receiving for his services. The assistant State's Attorney objected on the basis of relevancy and the defense counsel countered that it went to the witness's credibility. The court sustained the objection and stated:

"I don't think it goes to his credibility. What you have been paid I don't think goes to your dad's credibility."

Dr. Geiger's testimony was based on his review of the hospital records and autopsy findings, which indicated that the only external injury was the abrasion at the back of Etcheson's head. Dr. Geiger estimated that he had treated five to 15 persons who had been hit by a tire iron. The trauma flow sheet indicated that Etcheson had a three inch hematoma at the back of his head, but did not mention any laceration or skull fracture. Dr. Geiger explained that the hematoma could not be seen, but could be felt under the skin. Dr. Geiger testified that every person he had ever treated for a tire iron injury to the head had scalp lacerations that required stitches. The following then occurred:

"[DEFENSE ATTORNEY]: Within a reasonable degree of medical certainty, if you and I are facing each other and I swing this at you, can I inflict that abrasion wound on you?

[ASSISTANT STATE'S ATTORNEY]: Objection. He is not an expert in the field of forensic pathology. He is going way far afield.

[DEFENSE ATTORNEY]: This is not a question regarding forensic pathology.

THE COURT: I want to hear the answer. I want to hear what he bases the answer on. I want to hear how counsel can make the statement that -- so far it's clear to me that no one knows how the tire iron, other than it was roundhouse swinging, where the tire iron landed; what part of the tire iron landed on the head, if in fact it did; if it was a glancing blow; if it was thrown; if it hit in one place and that touched the skull first, and then another portion, as could happen if it was in a twisting fashion.

There are so many possibilities that I am really dying to hear how this expert can render this opinion."

Dr. Geiger then stated that it was his opinion that someone facing Etcheson could not have cause the abrasion, which was larger than the surface of the tire iron, by striking him in the back of the head with the tire iron. When asked whether the blow had to be a glancing blow that dragged across the surface of the skin, Dr. Geiger testified that he could not imagine that happening. The trial court interrupted the questioning to remark:

"THE COURT: Well, why don't you just take the tire iron, swing it, and have it hit the table in front of you, and see all the different ways it can bounce off the wood, and how many marks are going to be made on it; if that is what you [sic] basing your opinion on, gee whiz."

[DR. GEIGER]: I am sorry. I don't understand.

THE COURT: Nor do I understand your testimony here."

Dr. Geiger then stated that the abrasion was consistent with a fall on a flat object and Etcheson's CT scan showed blood in his sinuses, which would have been caused by a blow to his face. Dr. Geiger thought it would be extremely unusual for a blow to the back of the head to cause bleeding in the sinuses because the sinuses are separated from the brain by a quarter-inch thick bone.

Dennis King, an eyewitness, testified that he met Etcheson at a bar around 8:30 or 9 p.m. on July 8, 1994. Etcheson was alone, but was later joined by Hampton and Twila. A few hours later, King, Etcheson, Hampton, and Twila went to another bar, where they stayed until 3:30 a.m.

King drove the others home. When they arrived in front of Twila's apartment building, King saw defendant yelling from a third floor window before he approached the car. After Etcheson, Hampton, and Twila got out, King drove away and circled the area. He returned to see defendant, Twila, Hampton, and Etcheson arguing. Defendant hit Twila, knocking her to the ground, and fought off Hampton, who was trying to keep him away from Twila. King sped away again, but parked on the side of the street, where Etcheson approached him asking for help. King got out of his car and pulled out a knife while Etcheson grabbed a tire iron from under the car seat.

According to King, he changed his mind and decided to leave because the altercation was none of his business. But, before he left, he saw Etcheson approach defendant from behind and raise the tire iron as he yelled out defendant's name. Defendant turned around just as Etcheson swung the tire iron at him, caught Etcheson's arm in midair, then punched him in the face. Etcheson fell to his knees and onto the ground, immobile. King claimed that he left the scene because he was afraid of defendant, who was standing over Etcheson with the tire iron in his hand. King testified that he did not see defendant strike Etcheson with the tire iron but admitted that he initially told the police that he had seen defendant strike Etcheson with the tire iron.

A month later, King contacted the police after learning that they were looking for him. King testified that both Chicago Police Detective Victor Gutierrez, with whom he spoke on the telephone, and the assistant State's Attorney to whom he spoke at the police station knew that he had outstanding bond forfeiture warrants on driving under the influence (DUI) charges. Gutierrez told him that everything would be taken care of and the assistant State's Attorney, without making any promises, said that possibly something could be worked out. While at the police station, King identified defendant from a lineup and gave a statement, which was not recorded.

Although no promises had been made, King left the police station thinking that his outstanding warrants had been lifted, but several days later, he was arrested and held in jail on the warrants. After being contacted, Gutierrez refused to help King.

On March 29, 1995, while in jail, King gave a written statement to defendant's attorney stating that defendant did not strike Etcheson with the tire iron. But, on April 6, 1995, King wrote a letter to assistant State's Attorney Lu Ann Rodi, who was the prosecutor in this case, offering to testify against defendant if the State's Attorney's Office got him out of jail. At trial, King said that he was trying to do anything to get out of jail.

A couple of weeks later, King met with Rodi, who served a subpoena on him and told him that she wanted only his truthful testimony. King told her he would not testify because he feared for his safety in jail. He also said that he had been held for 40 days on a single DUI warrant, in which he had blown a .000 on his breathalyzer test. He had offered to plead guilty in that case, but had to have an alcohol ...

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