People v. Reese

• Decision Date: 14 February 1984
• Docket Number: No. 81-2627,81-2627
• Citation: 121 Ill.App.3d 977,460 N.E.2d 446,77 Ill.Dec. 390
• Parties: , 77 Ill.Dec. 390 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie REESE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 446

460 N.E.2d 446

121 Ill.App.3d 977, 77 Ill.Dec. 390

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie REESE, Defendant-Appellant.

No. 81-2627.

Appellate Court of Illinois,

First District, Second Division.

Feb. 14, 1984.

Steven Clark, Deputy State Appellate Defender, Karen Daniel, Asst. State Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., of Cook County, Chicago, Michael E. Shabat, James J. Bigoness, LuAnn Rodi, Asst. State's Attys., Chicago, for plaintiff-appellee.

DOWNING, Justice:

Defendant, Willie Reese, appeals from his convictions of two counts of murder (Ill.Rev.Stat.1977, ch. 38, par. 9-1(a)), one count of attempt (murder) (Ill.Rev.Stat.1977, ch. 38, par. 8-4), one count of armed robbery (Ill.Rev.Stat.1977, ch. 38, par. 18-2), and one count of unlawful restraint (Ill.Rev.Stat.1977, ch. 38, par. 10-3). The sentences imposed were concurrent terms of 80 years imprisonment for the murder conviction, 30 years imprisonment for the attempt (murder) conviction, 30 years imprisonment for the armed robbery conviction, and 3 years imprisonment for the unlawful restraint conviction.

Four grounds for reversal are presented by defendant: (1) that he was not provided with effective assistance of counsel at trial; (2) that certain prosecutorial comments made during closing argument prejudicially influenced the jury and, thus, denied defendant his right to a fair trial; (3) that certain evidentiary rulings made by the trial court culminated in reversible error; and (4) that the sentence imposed was not warranted under the circumstances of this case. As the issue of reasonable doubt was not raised, only a brief summary of the evidence is necessary.

At approximately 8 p.m. on November 18, 1979, defendant and Calvin Thompson visited Benjamin Smith in his first-floor apartment located at 118 N. Waller, Chicago. The three men proceeded to a back bedroom where they met with Smith's girl friend, Janice Bates, and Smith's cousin, Bernard "Duke" Pickett. After Thompson and defendant snorted some cocaine that Smith had offered to them, Thompson left the apartment and returned shortly thereafter armed with a Colt AR-15, .223 caliber semi-automatic rifle. While Thompson pointed the weapon in Smith's direction, defendant pulled out a .32 caliber handgun and likewise pointed it at Smith. Bates and Smith were then robbed of jewelry and approximately $80 in cash.

Thereupon, Bates was taken into the bathroom by defendant, Smith was ordered to lie on the floor, and Pickett was told to kneel in front of a chair and position his head on the seat cushion. Following repeated demands for more money, defendant threw a pillow over Smith's head and fired his gun into it, but the bullet missed its intended target. Defendant, believing Smith to be dead, lifted up Smith's leg and let it fall to the ground. Smith, feigning that he had been killed, lay on the floor motionless and then heard a double shot go off just in front of him followed by his girl friend's plea not to shoot; however, two more shots were fired immediately thereafter.

As soon as Smith heard defendant and Thompson leave the apartment, he jumped up and saw Pickett kneeling in front of a love seat with the left side of his head blown away. Smith then went into the bathroom where he found his girl friend fatally shot, lying between the sink and bathtub.

Although arrest warrants for defendant and Thompson were obtained on November 24, 1979, it was not until May 1980 that defendant was arrested in California. Following extradition proceedings, defendant arrived in Chicago on July 23, 1980. Soon after his arrival at the Area 5 Headquarters, the Miranda warnings were read to defendant for at least the third time; after acknowledging that he understood his rights, defendant agreed to make a statement. While defendant confessed his participation in the instant offenses, former assistant State's Attorney Ira Raphaelson took notes; also present was Detective Robert Smitka of the Chicago police department. Specifically, defendant's narrative of the events which transpired at Benjamin Smith's apartment on November 18, 1979 implicated Calvin Thompson in that defendant averred that after he fired his revolver at Smith's head, Thompson proceeded to shoot Pickett and Bates with the rifle.

Since defendant refused to allow this narration to be transcribed into a formal court-reported statement, Raphaelson asked him to read the notes, initial all scratched-out words, and then sign the paper at the bottom. Smitka and Raphaelson also signed this inculpatory statement at the bottom of the page as witnesses to defendant's signature.

In July 1980, defendant was indicted on six counts of murder, one count of attempt (murder), one count of armed robbery, one count of unlawful restraint and two counts of armed violence. The two armed violence counts were nol prossed and, following a jury trial, ¹ defendant was found guilty of murder, armed robbery, attempt (murder) and unlawful restraint. From these convictions, defendant now appeals. I.

Before reaching the legal arguments advanced by the parties, we first consider the merits of the State's motion before this court to strike a certain portion of the record, as well as the statement of facts and part I of the argument presented in defendant's brief.

Specifically, counsel for defendant at trial chose not to call Calvin Thompson to testify in the case at bar as a defense witness; yet, following defendant's conviction, sentence and appeal to this court, the assistant Appellate Defender filed a brief which extensively referred to testimony proffered by Thompson during his separate jury trial. This exculpatory testimony, in essence, provided Thompson's jury with an alibi that defendant and Thompson could not have been involved in the crimes with which they were charged. Thompson averred that on November 18, 1979, at approximately 8 p.m., he and defendant arrived at Phil Allen's house near Washington Boulevard. After Allen's mother let them in, they waited approximately 20 minutes and then, since Allen had not yet returned home, defendant and Thompson left for the Grand Motel on West Madison Street. Upon their arrival at the motel at approximately 9 p.m. that night, the two men allegedly registered for the eight-hour traveler's rate, showered, changed clothes and waited for Allen, who arrived at approximately 11 p.m.

Officer Renard Jackson of the Chicago police department, on assignment in the Austin District, was dispatched to the scene of the shootings at 8:45 p.m. It was Benjamin Smith's assertion that defendant and Thompson had arrived at his apartment at approximately 8 p.m. that night. Thus, as a result of Thompson's alibi and the testimonial evidence proffered in support thereof, he was acquitted of all charges at the conclusion of his separate jury trial in September 1981.

Defendant now argues that had Thompson testified at his trial, such testimony might have been exonerative. Hence, the assistant Appellate Defender has incorporated testimony from an entirely separate prosecution into the instant report of proceedings, and has made extensive reference to said testimony in the statement of facts, and part I of the argument of the brief filed on behalf of defendant.

In the absence of a stipulation between the parties, matters outside the record cannot be considered by this court on review (People v. Haas (1st Dist.1981), 100 Ill.App.3d 1143, 1149, 56 Ill.Dec. 521, 427 N.E.2d 853), even though they are included in the instant transcript of record (People v. Sheridan (4th Dist.1977), 51 Ill.App.3d 963, 965, 10 Ill.Dec. 34, 367 N.E.2d 422, cert. denied, 435 U.S. 975, 98 S.Ct. 1622, 56 L.Ed.2d 68). Regarding the present case, there was neither a stipulation between the parties, nor a request made by the assistant Appellate Defender to this court seeking permission to supplement the record from the trial below with the testimonial evidence proffered by Calvin Thompson at his separate jury trial. Therefore, the State's motion to strike is granted as to the improper incorporation of Thompson's testimony into the instant report of proceedings, as well as to the facts and argument contained in defendant's brief which are dehors the record.

II.

Defendant initially claims that he was deprived of his constitutional guarantee of effective representation of counsel because his trial attorney did not call Thompson as a witness for the defense. We find no merit to this assertion.

In order to establish incompetent and ineffective assistance of either a privately retained or a court-appointed lawyer, it must be shown that "the incompetence produced substantial prejudice to the defendant without which the result would probably have been different." (People v. Royse (1983), 99 Ill.2d 163, 168-70, 75 Ill.Dec. 658, 457 N.E.2d 1217.) The determination of the efficacy of representation requires an examination of the totality of circumstances and the record as a whole. (People v. Shepard (1st Dist.1983), 114 Ill.App.3d 598, 603, 70 Ill.Dec. 348, 449 N.E.2d 222.) However, a review of counsel's competency does not extend to those areas involving trial tactics or strategy, which are purely matters of professional judgment. (People v. Haywood (1980), 82 Ill.2d 540, 543-44, 45 Ill.Dec. 932, 413 N.E.2d 410, citing People v. Witherspoon (1973), 55 Ill.2d 18, 22, 302 N.E.2d 3.) Decisions on whether or not to call certain witnesses for the defense, like jury selection, have been recognized as matters of trial strategy and, thus, are not within the scope of our review. People v. Hebein (1st Dist.1982), 111 Ill.App.3d 830, 849, 67 Ill.Dec. 546, 444 N.E.2d 782; see also, Witherspoon, 55 Ill.2d at 22, 302 N.E.2d 3, and Shepard, 114 Ill.App.3d at 603-04, 70 Ill.Dec. 348, 449 N.E.2d 222.

In the case at bar, the fact that defendant's trial counsel did not call Calvin Thompson as a witness for the...