People v. Perry, 86-3419

• Decision Date: 09 May 1989
• Docket Number: No. 86-3419,86-3419
• Citation: 540 N.E.2d 379,183 Ill.App.3d 534,132 Ill.Dec. 639
• Parties: , 132 Ill.Dec. 639 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arlo PERRY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 379

540 N.E.2d 379

183 Ill.App.3d 534, 132 Ill.Dec. 639

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arlo PERRY, Defendant-Appellant.

No. 86-3419.

Appellate Court of Illinois First District, Second Division.

May 9, 1989.

Rehearing Denied June 14, 1989.

As Modified on Denial of Rehearing

June 20, 1989.

Public Defender's Office of Cook County (Millicent Willis and Alison Edwards, of counsel), for defendant-appellant.

State's Attys. Office of Cook County (Inge Fryklund, Joseph G. Howard and Brian T. Sexton, of counsel), for plaintiff-appellee.

MODIFIED OPINION ON DENIAL OF REHEARING

Justice EGAN ¹ delivered the opinion of the court:

A jury convicted the defendant, Arlo Perry, of the murder of Tyrone Crosby; and he was sentenced to 34 years imprisonment. The defendant seeks a new trial because of alleged incompetency of counsel and various trial errors. No issue is made of the sufficiency of the evidence.

Bernard Fisher was a friend of the deceased, Tyrone Crosby; and had known the defendant, whom he called Otto, from seeing him in the neighborhood "just about every day" for more than ten years. On November 22, 1986, at about 6:30 p.m., Fisher left Crosby's apartment at Champlain Avenue between 49th and 50th Streets in Chicago with Crosby and Tommy Jones. They had shared a pint of wine and a marijuana cigarette. They went to a tavern on 50th Street. Fisher left the tavern to meet his girlfriend Gloria Cox at the home of Joanne Mack at 49th and St. Lawrence. That home was on the west side of St. Lawrence and faced a vacant lot across the street. He and Cox were talking. (Fisher said that he had the conversation with Cox on the front porch of Mack's home. Cox later testified that the conversation took place on the street in front of Mack's home.) Cox saw Crosby come out of a liquor store at 50th and St. Lawrence and yell something to her. She saw Crosby walk towards 59th Street with another black man whom she did not know. She continued to talk to Fisher and then heard what sounded like firecrackers. At the time she was facing Fisher and had her back to the vacant lot. Fisher ran across the street toward the lot, and she ran after him. Fisher ran across another lot, and again she ran after him. She ran over Crosby's body in the lot. He was lying on his back about three feet from the alley. She did not know the defendant.

Fisher testified that as he was talking to Cox, he saw Crosby and the defendant going through the vacant lot which runs all the way from Champlain to St. Lawrence. He was on St. Lawrence and could see all the way to Champlain. He heard a gunshot come from the vacant lot. He noticed the defendant standing in the lot, but he no longer saw Crosby. The defendant had a gun in his hand and fired three or four rounds while pointing the gun at the ground. The defendant then ran towards Champlain.

Fisher testified to the same circumstances of the discovery of Crosby's body as had Cox. He saw Crosby's body after Cox found it and noticed a hole in the middle of Crosby's forehead. Crosby was still alive and was trying to say something; his eyes were open. The body was at the exact spot at which Fisher had seen the defendant firing the gun. After the police arrived Fisher told them what he had seen. He later searched the area and saw the defendant hiding in another vacant lot looking back toward the officers. Fisher returned to the police and told them where he had seen the defendant. The police searched for the defendant but were unable to find him. After the killing, Fisher did not see the defendant in the neighborhood again. An autopsy of Crosby's body disclosed five through and through bullet wounds.

The police and Fisher then went to a woman's home in a nearby apartment building where the defendant reportedly had been seen entering a basement apartment; but the defendant was not there. That night Detective Guy Habiak interviewed both Fisher and Cox at Area 1 Headquarters. Fisher provided the name Otto Perry as the person who had done the shooting and gave his address at 4943 South Champlain. He also identified the defendant's picture from a group of five photos. After subsequent questioning in the area turned up no information regarding the whereabouts of the defendant, Habiak obtained an arrest warrant. On December 6, 1985, he placed the defendant's photograph in the Daily Bulletin for police officers. The defendant was subsequently arrested on June 19, 1986, in the same neighborhood in which the shooting took place.

The defendant initially claims that his attorney was incompetent, and his argument is advanced in two stages: first, he contends that the attorney must have been incompetent because he had pending certain disciplinary proceedings at the time of trial and, therefore, was so preoccupied with his own problems he could not have devoted his abilities and energies for the benefit of the defendant to the degree required. (The attorney was subsequently disbarred. (In re Levin (1987), 118 Ill.2d 77, 112 Ill.Dec. 708, 514 N.E.2d 174).) Second, he points to various alleged errors on the part of the attorney to illustrate his incompetence.

The question of the pending proceedings against the defendant's attorney was first brought up by the judge before the trial began. He informed the defendant's attorney that the defendant should be apprised of the pending proceedings. After conferring with the defendant the attorney returned to open court with the defendant; and the following occurred:

"MR. LEVIN [Defense Attorney]: I have explained to him the situation. He has indicated to me that he wants me to continue in the representation, that he is ready for jury selection at this time.

THE COURT: What you explained to him, without any details, dealt with what?

MR. LEVIN: The disciplinary proceedings pertaining against me and the ramifications of that.

THE COURT: They have nothing to do with your competence as a lawyer?

MR. LEVIN: They have nothing to do with this case.

THE COURT: I mean they do not have anything to do with your competence to represent him?

MR. LEVIN: Correct.

* * * * * *

STATE'S ATTORNEY: Just for purposes of the record, I think the client himself has to indicate in his own words that he understands the problem.

THE COURT: Yes. I think that is probably right. Do you understand, Mr. Perry, I mean?

THE DEFENDANT: Yeah. I understand what he was saying. Yeah. Actions against him, and it does not affect my case in no kind of way.

THE COURT: It does not affect his ability as a lawyer. It is just something completely aside?

THE DEFENDANT: Right.

THE COURT: They have sometimes held, and what I was talking about before is, where a lawyer has something like that pending against him that he could be so occupied and concerned with it that he could not devote his attention to the case at hand. You do not believe that to be the case, is that correct?

THE DEFENDANT: I believe he can represent me."

The defendant now argues that the record does not demonstrate that he was told the nature or extent of the disciplinary proceedings. In effect, the defendant urges us to assume, in the absence of any evidence, that he was not fully apprised of the disciplinary proceedings against his attorney. That is an assumption we are unwilling to make. Contrary to the defendant's views, we do not believe the action taken by the judge was a "sham"; and we do not see anything blameworthy in a judge's efforts to avoid grounds for reversal.

By answering this argument, we do not concede that a trial judge is under an obligation to conduct a hearing whenever he learns that some disciplinary proceedings are pending against a lawyer representing a defendant charged with a crime. But to make our position clear for future cases, we will assume that the defendant was not given more than the bare information that his lawyer had some disciplinary problems.

Implicit in the defendant's argument is the premise that the law imposes an obligation on a trial judge to inform a defendant of those disciplinary problems (if, of course, the judge knows of them) and to take a further step to insure that the defendant is fully apprised of those problems. How the judge is to provide that insurance, since disciplinary proceedings are, with rare exception, confidential under Supreme Court Rule 766 (107 Ill.2d R. 766), is not suggested by the defendant. But to carry the premise to its logical conclusion, if we say such an obligation is imposed on a judge, the same obligation should be imposed on the judge who learns that a lawyer has health, monetary or domestic problems or is under criminal investigation. The lot of the beleaguered criminal trial judge is already not a happy one; and we are confident that no reviewing court would saddle him further with the onerous duty now suggested by the defendant. There may be cases which require intercession by the judge; but such requirement is not automatically triggered by knowledge that disciplinary proceedings are pending. In short, we are not saying that a judge may not or should not inform a defendant of possible disciplinary problems his attorney may have; we are saying that he need not in all cases.

Nor do we accept the defendant's argument that the mere pendency of disciplinary proceedings brands an attorney incompetent to defend a person charged with crime. The fact that the supreme court permits lawyers to continue to practice until they are suspended or disbarred should be a clear answer to that argument. The case he cites, People v. Williams (1982), 93 Ill.2d 309, 67 Ill.Dec. 97, 444 N.E.2d 136, does not support him. Williams involved a defendant sentenced to death whose lawyer also represented two other defendants. Those three were tried before one jury at the same time that another jury was trying a fourth defendant. As can be seen, such a procedure, which was disfavored by the supreme court, would require uncommon mental nimbleness on...