People v. Bell

• Decision Date: 15 January 1987
• Docket Number: No. 3-85-0644,3-85-0644
• Citation: 106 Ill.Dec. 59,152 Ill.App.3d 1007,505 N.E.2d 365
• Parties: , 106 Ill.Dec. 59 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arlen BELL, Defendant-Appellant. Third District
• Court: United States Appellate Court of Illinois

Page 365

505 N.E.2d 365

152 Ill.App.3d 1007, 106 Ill.Dec. 59

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Arlen BELL, Defendant-Appellant.

No. 3-85-0644.

Appellate Court of Illinois,

Third District.

Jan. 15, 1987.

Kenneth D. Brown(argued), Office of the State Appellate Defender, Ottawa, for Arlen Bell.

Joan Scott, State's Atty., Lewistown, Gary F. Gnidovec(argued), State's Attys.Appellate Service Com'n, Ottawa, for the people.

Justice HEIPLEdelivered the Opinion of the Court:

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 in their home 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 and the jury was instructed on the law of 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 blood stains 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 pre-trial 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, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by our supreme court in People v. Albanese(1984), 104 Ill.2d 504, 525-527, 85 Ill.Dec. 441, 473 N.E.2d 1246cert. denied(1985), 471 U.S. 1044, 105 S.Ct. 2061, 85 L.Ed.2d 335.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 (466 U.S. 668, 687-695, 104 S.Ct. 2052, 2064-2068, 80 L.Ed.2d 674, 693-698.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, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674, 694); additionally, errors in trial strategy or judgment alone do not establish that the representation was incompetent.(People v. Howard(3rd Dist., 1981), 94 Ill.App.3d 797, 50 Ill.Dec. 594, 419 N.E.2d 702.)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, 83 Ill.Dec. 598, 470 N.E.2d 1018.

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 of 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...