Petition — Illinois v. Williams

82-1691 it ; + out Ua |

3n the

Supreme Court of the Anited States

Octoser TERM, 1982

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

vs.

DENNIS WILLIAMS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

Nem F. Hartican,

Attorney General, State of Llinois,

188 West Randolph Street,

Suite 2200,

Chicago, Illinois 60601.

Attorney for Petitioner.

RicHarp M. DAtey,

State’s Attorney,

County of Cook,

500 Richard J. Daley Center,

Chicago, Illinois 60602,

MicnaeL E. SHasart,®

Kevin Sweeney,

Assistant State’s Attorneys,

Of Counsel.

* Counsel of Record

(312) 443-5496

The Scheffer Press, Inc—(312) 263-6850

i

QUESTION PRESENTED

Whether an attorney was incompetent to give effec-

tive assistance of counsel in a criminal case because

he had engaged in serious misconduct in an unrelated

probate matter.

ij

TABLE OF CONTENTS

PAGE

IES ila aati enisdesh ln sanacievesecnsinbbbnenvenevionenven i

iar eniennasonnannedsennssderosescianden 1

Id de servdcrennseeeqwonnanene cotnssasseeaneenienens 2

Constitutional Provision Involved ..........ccccccesseseeeseeees 2

UI UIE ETD «ssc nsoncanduononesoenencnsessonensoseens 2

Reason for Granting the Writ:

WHERE THE TRIAL RECORD INDICATES

THAT RESPONDENT RECEIVED ABLE AND

VIGOROUS REPRESENTATION, THE FACT

THAT RESPONDENT’S ATTORNEY WAS

GUILTY OF MISCONDUCT IN AN UNRE.-

LATED MATTER WAS IRRELEVANT TO THE

QUESTION OF WHETHER RESPONDENT RE-

CEIVED EFFECTIVE ASSISTANCE OF COUN.

ITs es or. ccpnasdbotensaennsonncnsenseesoesences 6

aa os ssscusneeseeesubesooanboneobenngers 14

Appendices :

A—Second and Final Opinion of the Illinois Su-

preme Court in People v. Dennis Williams .. la

B—Order of the Illinois Supreme Court Deny-

ing the Petition for a Rehearing Filed by the

People of the State of Dlinois oo... 15a

C—Excerpt from the Original Opinion of the Illi-

nois Supreme Court in People v. Dennis Wil-

STEIN Ii cabiaisinittbiadiausiansseseasasnesenesienoiovovheeesovnenenseeese 16a

iil

Taste Or AvrHorities

Cases

PAGE

Chambers v. Maroney, 399 U.S. 42 (1970) coc 10

Cooper vy. Fitzharris, 551 F.2d 1162 (9th Cir. 1977) .. 11

Cuyler v. Sullivan, 446 U.S. 335 (1980) occ 9

Dyer vy. Crisp, 613 F.2d 275 (10th Cir. 1980) ........... 10

Engle v. Issac, «0... iP eteai 102 S. Ct. 1558

PRIDE cintivinicanccscnteieneviniatianiaceansipacmnmiatibceaamonaemnas 10

In re Weston, 92 Tll. 2d 431, 442 N.E. 2d 236

CRIED © sscinncsspstsccipinenisescuntncsinakesduapenniicabiacataisnasceseaiaamaieinins 4,8

Jones v. Wainwright, 604 F.2d 414 (5th Cir. 1979) .. 11

LiPuma vy. Commissioner, 560 F.2d 84 (2d Cir.

PUTED | cnise.hessuigisinisdinsiesudennsscedekiumeuabicsoneconmpibatmemenaalaaaale 11

McMann vy. Richardson, 397 U.S. 759 (1970)... 9, 10

Marezwlo v. Maryland, 561 F.2d 540 (4th Cir. 1977) .. 11

Michel v. Lowisiana, 350 U.S. 91 (1955) voces 9

Parker v. North Carolina, 397 US. 790 (1970) ....... 10

People v. Lewis, 88 Ill. 2d 129, 480 N.E. 2d 1346

ERIE) | scssnsssiininicoccoacsgasedsesesenionsneniaussiacscuasclcaheliainaaiaaia nial 12, 13

People v. Murphy, 72 Ill. 2d 421, 381 N.E. 2d 677

CITED cxssvssoositcarsnenchsetacinsitiseinadconpesseisnbeideiciacinemadaadadnas 11,13

People v. Redmond, 50 Ill. 2d 313, 278 N.E. 2d 766

TIPE IND ccticoscinetanssshsinieteassseescnmnmashiigeuseiusamiiauiiaaeiaida 13

People v. Somerville, 42 Ill. 2d 1, 245 N.E. 2d 461

CRIED -. sccstinissnesisdsbesheccmnidatptintinstins idstmsenielidoaddaiaa maaan 13

People v. Thomas, 38 lll. 2d 321, 231 N.E. 2d 436

CZIIIUE P scsvcssistinnsovenvtinsnoctnincsiensabiiiesniianmaivalngamemaauanaia 13

Skipper vy. Wainwright, 598 F.2d 425 (5th Cir. 1979) .. 13

iv

PAGE

United States ex rel. Williams v. Twomey, 510 F.2d

ee CE: re. -etteenescctensnccnneesiarisinisiinins 12

United States v. Aulet, 618 F.2d 182 (2d 1980) .... 11

United States v. Bosch, 584 F.2d 1113 (1st Cir.

IPOD itiacccdstphenedassiciceliiseddinanbsdihiaesdttbeniintaasiieiaibbibiiddnaoiaapelds 11

United States v. Chronic, (U.S. Sup. Ct., No. 82-660,

SIN ccissetunstcemreenrnssinetannrornssrieviaeneaieimnennnnmeneiaienaneenl 6, 14

“SEERA a a I ie Sea ae

OST RE Se ee 11

Tollett v. Henderson, 411 U.S, 258 (1973) wu. 10

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment VI1_ ............ 10, 13

STATUTES

Til. Rev. Stat. 1961, Ch. 38, sec. 122-1 n.ccccccccccsccsccccesccsees 13

SB TBS. 9 BABE ccccsverenstnevessiarsesonessnonsssosnenssonmncsecosssscnscsanse 13

In Tire

SUPREME COURT OF THE UNITED STATES

Ocrospen Term, 1982

No.

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

vs.

DENNIS WILLIAMS.

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

Petitioner, People of the State of Illinois, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the l[/tinois Supreme Court which

was entered on November 18, 1982.

OPINIONS BELOW

On April 16, 1982 the Illinois Supreme Court entered

an opinion affirming rspondent’s convictions for murder,

aggravated kidnapping and rape. That opinion was never

published and was subsequently withdrawn after re-

spondent successfully petitioned for a rehearing. On

November 18, 1982 the Illinois Supreme Court entered

a@ new opinion reversing respondent’s convictions for

murder, aggravated kidnapping and rape and remand-

ing the matter for a new trial. The second opinion is

reported at 93 Ill. 2d 309, 444 N.E. 2d 136 and ap-

pears herein as Appendix A. On December 9, 1982 pe-

titioner filed a timely request for a rehearing of the

second opinion, which was denied on January 28, 1983.

(Appendix B)

JURISDICTION

The opinion and judgment of the Lllinois Supreme

Court was entered on November 18, 1982. A timely

petition for a rehearing of that opinion and judgment

was denied on January 28, 1983, that order appearing

herein as Appendix B. This petition was filed within

60 days of that date. This Court’s jurisdiction is in-

voked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISION AT ISSUE

SIXTH AMENDMENT:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.

STATEMENT OF THE CASE

On May 11, 1978 Carol Schmal and her boyfriend

Larry Lionberg were kidnapped, Carol Schmal was gang-

ee ae

raped, and both Carol Schmal and Larry Lionberg were

killed hy bullets fired through the back of the head. Evi-

dence presented in the trial court indicated that Schmal

and Lionberg were kidnapped in the car of respondent

Dennis Williams, that Williams and three co-defendants

raped Carol Schmal, and that Williams fired the bullets

which killed the two victims.

During the early morning hours of May 11 Larry Lion-

berg was working at a gas station in Homewood, Illinois

where he was visited by Carol Schmal. The gas station

was robbed and Lionberg and Schmal were kidnapped.

The victims were driven to an abandoned townhouse in

East Chicago Heights where Carol Schmal was taken to

an upstairs room. There she was raped by Williams and

three other men while a girl called Paula Gray held a ciga-

rette lighter to illuminate the scene. Williams and two

of the other men each raped Carol Schmal twice. Then

Williams turned Carol Schmal over and fired two bullets

through her head. After that Williams went downstairs

and shot Larry Lionberg.

Paula Gray testified to these facts before the grand

jury, but before trial she recanted her testimony and her

evidence was not used against respondent until sentenc-

ing. At the jury trial the principal items of evidence

against respondent were as follows:

1. A witness saw Williams enter the abandoned town-

house at the time of the rape and murders.

2. Three Caucasian hairs were recovered from Wil-

liams’ car, and an expert testified that it was prob-

able, but not certain, that the hairs had come from

Carol Schmal and Larry Lionberg.

3. Sperm samples taken from Carol Schmal’s vagina

indicated intercourse with several men, one of whom

had the same blood type as respondent.

a en

4. A witness overheard respondent say concerning the

victims, “I saw them jump when they shot them.”

5. A fellow prisoner heard respondent admit that he

_ “really shouldn’t have took it from the lady,” and

further admit that he was “glad he took care of the

guy” because “he kept running off with his mouth.”

Respondent presented an alibi defense which was rejected

by the jury, and Williams was convicted and sentenced

to death.

At trial respondent and co-defendants Willie Rainge

and Paula Gray were represented by attorney Archie

Weston. Weston was an experienced lawyer who had been

admitted to the Illinois bar in 1959. At one time he had

served as president of the National Bar Association, the

largest nation-wide organization of black lawyers.

After his conviction respondent argued in the [Illinois

Supreme Court that attorney Archie Weston had not

given him effective assistance of counsel. The [Illinois

Supreme Court handed down an opinion rejecting that

argument. (Appendix C) That court ruled that Weston

had been a vigorous and able advocate, and that any

criticisms of his representation which might be made

with hindsight did not establish incompetency.

But after the original opinion in Williams was handed

down an unrelated disciplinary matter involving attor-

ney Archie Weston came before the [Illinois Supreme

Court. In re Weston, 92 Ill. 2d 431, 442 N.E. 2d 236 (1982)

In that action it was established that Weston had en-

gaged in negligent and unethical conduct as administra-

tor of an estate. Some of the assets of the estate had

been converted and title to a building belonging to the

estate had heen lost for failure to pay property taxes.

a i

As a result of this misconduct the Illinois Supreme Court

disbarred Weston.

Weston’s misconduct as administrator of the estate had

taken place before Williams’ trial on charges of murder,

aggravated kidnapping and rape. However all the proceed-

ings which led to Weston’s disbarment took place after

Williams’ trial was over. Although complaints had been

made against Weston before the trial of Williams began,

the probate court did not even remove Weston as ad-

ministrator of the estate until after Williams was con-

victed. The probate court did not enter any monetary

judgment against Weston until more than a year after

the criminal trial was over. And Weston was not served

with a formal complaint before the disciplinary commis-

sion until two years after Williams’ conviction.

Nevertheless, the Illinois Supreme Court decided that

Weston’s misconduct as administrator of an estate indi-

cated that he did not give respondent effective repre-

sentation at the criminal] trial. That court withdrew its

original opinion and substituted an opinion reversing

respondent’s convictions for murder, aggravated kidnap-

ping and rape. The new opinion stated that “. . .because

of the newly acquired information concerning Williams’

counsel, which we have concluded may well have had an

effect on counsel’s ability to represent his client in the

trial of this capital case, we can no longer say with any

degree of assurance, that Williams received the effective

assistance of counsel guaranteed by the Constitution.”

(Appendix A, p. 12a)

a

REASONS FOR GRANTING THE WRIT

WHERE THE TRIAL RECORD INDICATES THAT

RESPONDENT RECEIVED ABLE AND VIGOROUS

REPRESENTATION, THE FACT THAT RESPOND.

ENT’S ATTORNEY WAS GUILTY OF MISCONDUCT

IN AN UNRELATED MATTER WAS IRRELEVANT

TO THE QUESTION OF WHETHER RESPONDENT

RECEIVED EFFECTIVE ASSISTANCE OF COUN.

SEL.

The first reason why certiorari should be granted is

that this Court has recently taken jurisdiction in a case

presenting essentially the same issue. On February 22,

1983 this Court granted certiorari in United States v.

Cronic, No. 82-660. If certiorari is granted here, this case

may either be consolidated with Cronic or this case may

receive a summary disposition after Cronic is decided.

Therefore certiorari may be granted in this case without

consuming a large amount of this Court’s scare time and

resources.

In Cronic the defendant received competent representa-

tion on mail fraud charges so far as could be determined

from the trial record. The Tenth Circuit Court of Ap-

peals reversed the convictions solely because the defense

attorney lacked trial experience and time to prepare, al-

though no prejudice to the defendant could be shown.

United States vy. Chronic, 675 F.2d 1126 (10th Cir. 1982).

The Illinois Supreme Court made a similar ruling here.

As far as could be determined from the trial record, re-

spondent Williams received competent representation. The

Illinois Supreme Court reversed the convictions solely be-

— on

cause complaints had been made concerning the miscon-

duct of the defense attorney in an unrelated probate mat-

ter, although no prejudice to Williams was shown.

It is certain that the Illinois Supreme Court found

that an examination of the trial record showed that Wil-

liams received effective representation. In its first opin-

ion in this case that court said (Appendix C., p. 17a):

The record reflects that Williams was vigorously

defended from his preliminary hearing through his

sentencing. Counsel conducted able and searching

examinations of witnesses both on direct and cross-

examination, as well as extensive voir dire of the

venire. He filed and argued many motions challenging

various aspects of the State’s case, and made strong

jury presentations at the beginning and the end of

the trial. In the totality of his conduct be performed

ably. We have recognized many times that hindsight

often dictates thate different strategy might have

produced better results. However, such “errors” in

judgment do not establish incompetency.

In its second opinion in this case the Illinois Supreme

Court acknowledged that the so.e reason it was reversing

itself and vacating the convictions was that information

had come to light concerning the defense attorney’s mis-

conduct in an unrelated probate matter. (Appendix A,

p. 12a)

Thus the Illinois Supreme Court held that the mere

filing of complaints concerning the conduct of a defense

attorney in an unrelated matter was enough to prove

incompetence in a criminal case, even when no incompe-

tence could be proven from the trial record. It must

be emphasized that, although before the trial in this

case began complaints had been made against attorney

Weston to the probate court and the disciplinary com-

mission, no action was taken against Weston until the

trial in this case was over. Weston was not removed as

administrator of the estate in question until two weeks

after the trial in this case was over. Although a rule

to show cause was filed in probate court before the crimi-

nal trial, there was no hearing on that rule until after

the criminal trial, and Weston was not held in contempt

until four months after the criminal trial had concluded.

Proceedings before the Illinois Attorney Registration and

Disciplinary Commission commenced two years after the

criminal trial, and Weston was not finally disbarred un-

til four years after the trial in this case.*

Thus the Illinois Supreme Court has held that the

mere existence of pending complaints of misconduct can

render an attorney incompetent to try a criminal case,

even when there is no evidence that the complaints

affected the attorney’s performance at trial and even

when the trial record shows vigorous and able represen-

tation. This rule is both irrational and contrary to this

Court’s interpretation of the Sixth Amendment.

The holding of the Illinois Supreme Court is irrational

because it is not a rare thing for an attorney to be ac-

cused of serious misconduct. It would be an intolerable

burden on the courts and the public if criminal convictions

had to be vacated when such unrelated complaints were

later shown to be justified. Also, many other factors,

such as a divorce, a personal bankruptcy or an illness,

might arguably affect an attorney’s ability to try a

* These facts are taken from the briefs in Jn re Weston,

92 Ill. 2d 431, 442 N.E. 2d 236 (1982). The Illinois Su-

preme Court took judicial notice of those briefs in its

second opinion in this case. (Appendix A, p. 3a)

pon ee

criminal case. When it is proven at a hearing that the

attorney’s ability to try a case was impaired, and that

the defendant was prejudiced, then a conviction may have

to be vacated. But when, as here, there is no evidence

that the attorney’s competence at trial was affected,

and there is no showing of prejudice to the defendant,

then the conviction should stand.

This Court has indicated that a violation of the Sixth

Amendment right to effective assistance of counsel will

not be assumed, but must be demonstrated. Cuyler v.

Sullivan, 446 U.S. 335 (1980). When a defendant alleges

that he has been deprived of competent representation,

this Court has indicated that it is the defendant’s burden

to show ‘‘gross error’’ on the part of his attorney. Mc-

Mann v. Richardson, 397 U.S. 759, 772 (1970). Thus the

Illinois Supreme Court erred when it assumed without

proof that Williams had been deprived of competent re-

presentation, and when it reversed the convictions of

Williams even though no “gross error’’ by defense coun-

sel occured during the trial.

The ruling of the Illinois Supreme Court here was

contrary to the holding of this Court in Michel v. Lowst-

ana, 350 U.S. 91 (1955). In Michel the defense attorney,

who was 76 or 77 years old and in poor health, failed

to move to quash the indictment. If the motion *» quash

had been made it would ultimately have been successful,

since blacks had been systematically excluded from the

grand jury. The defendant was convicted and sentenced

to death. Nevertheless, this Court held that the defendant

in Michel had received competent representation. By that

standard neither attorney Weston’s problems in the pro-

bate court, nor Weston’s failure to file a motion to sup-

=

press the search of the car deprived respondent Williams

of effective assistance of counsel.

In other more recent decisions this Court has con-

sistently held that a failure to make a key motion or ob-

jection is not enough by itself to prove incompetent re-

presentation in a criminal case. For example, a defendant

is not deprived of competent representation even when

his attorney fails to object to a jury instruction mis-

stating the burden of proof. Engle v. Issac, ........ US.

sananiaa , 102 S. Ct. 1558, 1574 (1982). A defendant may

receive adequate representation even when his attorney

does not confer with him until immediately before trial

and fails to properly move to suppress a search of the

defendant’s house. Chambers v. Maroney, 399 U.S. 42,

53-54, 57-58 (1970). The failure to file a motion to sup-

press a confession does not in and of itself deprive a

defendant of effective assistance of counsel, even when

the motion would probably have been granted. Parker

v. North Carolina, 397 U.S. 790, 796-797 (1970); Me-

Mann v. Richardson, 397 U.S. 759, 770-771 (1970). And

this Court has held that representation may be ‘‘within

the range of competence demanded of attorneys in crim-

inal cases’’ even when the defense failed to move to quash

a voidable indictment. Tollett v. Henderson, 41). U.S.

258, 267-268 (1973).

But this Court has not established a single definite

standard for judging the adequacy of representation by

counsel in a criminal case. As a result, conflicting stan-

dards have been followed by different federal Circuit

Courts of Appeal. Dyer v. Crisp, 613 F.2d 275 (10th

Cir. 1980); See Annotation, “Modern Status of Rule

as to Test in Federal Court of Effective Representation

i Re

by Counsel,’’ 26 ALR Fed. 218. Another result has been

that in Illinois a bizarre situation has developed where-

by criminal convictions are reviewed under one constitu-

tional standard in the state appellate courts, and then

are reviewed under a different constitutional standard

in federal habeas corpus proceedings.

The Second Circuit Court of Appeals will vacate a

conviction for incompetence of counsel only if the re-

presentation amounts to a ‘‘farce or mockery’’. United

States v. Awet, 618 F.2d 182 (2d Cir. 1980); LiPuma

v. Commissioner, 560 F. 2d 84 (2d Cir. 1977). Other

circuits will vacate a conviction if the defendant has been

deprived of “reasonabiy effective” or “reasonably com-

petent’’ representation. Jones v. Wainwright, 604 F. 2d

414 (5th Cir. 1979); United States v. Bosch, 584 F.. 2d

1113 (1st Cir. 1978); Cooper v. Fitzharris, 551 F. 2d

1162 (9th Cir. 1977). And still other circuits use a stan-

dard of representation “within the range of competence

demanded of attorneys in criminal cases.” Marzullo v.

Maryland, 561 F. 2d 540 (4th Cir. 1977); Umited States

v. Moore, 554 F. 2d 1086 (D.C. Cir. 1976). There is a

need to establish a single standard to be used in deter-

mining whether a defendant in a criminal case has re-

ceived effective assistance of counsel.

The situation in Illinois illustrates the problems that

arise from the lack of a definite standard. The Illinois

Supreme Court follows a different standard depending

on whether counsel is retained or appointed. If a de-

fendant retains his own lawyer, then representation is

adequate unless the trial has been reduced to a “farce

or sham.’’ People v. Murphy, 72 Ill. 2d 421, 381 N.E.

2d 677 (1978). But if counsel is appointed, then convic-

tions will be vacated only in cases of ‘‘actual incom-

petence’’ causing ‘‘substantial prejudice’. People v.

oe

Lewis, 88 Ill. 2d 129, 153-154, 430 N.E. 2d 1346, 1357-

1358 (1981). The Seventh Cireuit Court of Appeals,

which reviews Illinois convictions in habeas corpus pro-

ceedings, will vacate a state conviction unless the defen-

dant has been afforded a “minimum standard of pro-

fessional representation.’’ United States ex rel. Williams

v. Twomey, 510 F. 2d 634 (7th Cir. 1975). Thus criminal

convictions in Illinois are reviewed according to different

and conflicting interpretations of the Sixth Amendment.

In summary, there was no evidence that attorney

Weston’s problems in the probate court affected his

performance at trial in this case, so the Illinois Supreme

Court erred by vacating the convictions because of those

problems. In fact, prior decisions of this Court indicate

that attorney Weston gave competent representation to

respondent Williams. In addition, there is a need for

this Court to grant certiorari and establish a definite

standard for judging whether a defendant in a criminal

case has received effective assistance of counsel.

Two further points should be made. First, che opinion

of the Illinois Supreme Court in this case indicates that

its decision was based on federal constitutional law.

Second, even if the convictions of respondent Williams are

affirmed, he will still be entitled to post-conviction hear-

ings at which he can attempt to present evidence that

his attorney was unable to competently represent him at

trial.

The [llinois Supreme Court said that it could “. . . no

longer say with any degree of assurance, that Williams

received the effective assistance of counsel guaranteed

by the Constitution.” (Appendix A, p. 12a) The general

reference to ‘‘the Constitution’’, rather than a specific

reference to any state provision, indicates that the

a

decision was based on the Constitution of the United

States. In any event, the right to effective assistance of

counsel in Illinois is equal to, but not greater than, the

right granted by the Sixth Amendment. People v. Lewis,

88 Til. 2d 129, 153-154, 480 N.E. 2d 1346, 1357-1358 (1981) ;

People v. Murphy, 72 fll. 2d 421, 435-436, 381 N.E. 2d

677, 684-585 (1978): People v. Redmond, 50 Ill. 2d 313,

315, 278 N.E. 2d 766, 767 (1972); People v. Somerville,

42 Ill. 2d 1, 5, 245 N.E. 2d 461, 464 (1969).

Even if the convictions of respondent Williams are

affirmed, he will still have a right to hearings in both

state and federal court in which he may attempt to

show actual] incompetence on the part of his trial counsel.

Specifically, Williams is entitled to hearings at which

he may try to present evidence that attorney Weston’s

problems rendered Weston incapable of properly trying

a criminal case. Under the Illinois Post-Conviction Hear-

ing Act a defendant may assert incompetence of the

part of trial counsel, and present evidence from outside

the trial record in support of that assertion. Til. Rev.

Stat. 1981, Ch. 38, see. 122-1; People v. Thomas, 38 Il.

2d 321, 231 N.E. 2d 436 (1967). Williams would have a

right to a similar hearing in federal habeas corpus pro-

ceedings. 28 U.S.C. § 2254; Skipper v. Wainwright, 598

F. 2d 425 (5th Cir. 1979). It is understandable that a

court would want to be sure that a defendant had re-

ceived effective assistance of counsel in a case in which a

death sentence had been imposed. However Williams

is entitled to hearings in state and federal court at which

any evidence relevant to competence of counsel inay be

examined. If evidence shows that his trial attorney was

actually incompetent, then his convictions will be vacated.

But the Illinois Supreme Court misinterpreted the Sixth

Amendment when it reversed the convictions in the ab

ay)

sence of evidence of incompetence and where the trial

record showed vigorous and able representation.

Accordingly, this Court should review the decision of

the Illinois Supreme Court in this case. At a minimum

it may be appropriate to remand this matter for further

consideration in the light of this Court’s pending deci-

sion in United States v. Chronic, No. 82-660.

CONCLUSION

For the foregoing reasons, the People of the State of

Illinois respectfully pray that a writ of certiorari issue

to review the judgment of the Illinois Supreme Court.

Respectfully submitted,

New. F. Harticay,

Attorney General, State of Ilinois,

188 West Randolph Street,

Suite 220,

Chicago, Tlinois 60601.

Attorney for Petitioner.

Ricrtarp M. Datey,

State’s Attorney,

County of Cook,

500 Richard J. Daley Center,

Chieago, Tlinois 60602,

Micwarn, FE. Swapnar,*

Kevin Sweeney,

Assistant State's Attorneys,

Of Counsel.

* Counsel of Record

(312) 443-5496

APPENDICES

== 18 —

APPENDIX A

SECOND AND FINAL OPINION OF THE ILLINOIS

SUPREME COURT IN PEOPLE vs DENNIS WIL-

LIAMS

Docket No. 51870—Agenda 36-—September 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, Appel-

lee, v. DENNIS WILLIAMS, Appellant.

JUSTICE UNDERWOOD delivered the opinion of the

court:

Following a jury trial in the cireuit court of Cook

County, defendant Dennis Williams was convicted of two

counts of murder, two counts of aggravated kidnapping,

and rape. A separate sentencing jury found the neces-

sary aggravating factors and that there were no mitigat-

ing factors sufficient to preclude imposition of the death

sentence. The court accordingly sentenced defendant to

death for the murders and to concurrent extended terms

of 60 years for the other offenses.

Defendant appealed directly to this court pursuant to

article VT. section 4(b), of our 1970 constitution, and on

April 16, 1982, we filed an opinion in which we affirmed

defendant's convictions and death sentence over his objec-

tion inter alia, that he was denied the effective assistance

of counsel. While Williams’ petition for rehearing was

pending, a disciplinary case involving his attorney, Archie

Benjamin Weston (In re Weston (Oct. 22, 1982), No.

55675). was orally argued in this court. As a result of

the additional information with which we were presented,

of which we had heen unaware during the preparation

and filing of our Williams opinion, we directed the clerk

of this court to forward copies of the record, briefs and

taped argument in Jn re Weston to counsel for both sides

in Williams. We then requested and subsequently re-

a

ceived suggestions from the attorneys concerning the

relevance of the disciplinary matters to the capital case.

We thereafter allowed Williams’ petition for rehearing.

Williams and codefendants Willie Rainge and Kenneth

Adams were charged by information with the aggravated

kidnapping and murders of Larry Lionberg and Carol

Schmal, the rape of Carol Schmal, armed robbery, and

armed violence. Another codefendant, Paula Gray, was

indicted several months later for the same murders and

rape and for perjury. Mr. Weston represented Williams,

Rainge and Gray; Adams retained separate counsel. The

four were tried in September and October 1978 in one

courtroom by two separate juries. One jury heard evi-

dence relevant only to defendants Williams, Rainge and

Adams, and the other jury heard evidence relevant only

to Grav. Both juries heard evidence relevant to all four

defendants. The procedure was suggested by the State

because Paula Grav had made statements inadmissible

against the others under Burton v. United States (1968),

391 U.S. 123, 20 T.. Fd. 2d 476, 88 S. Ct. 1620. The sub<

stance of the Rurton problem was also the basis of the

perjury charge against Paula Gray. She had given sworn

testimony to a grand jury implicating the other three de-

fendants in the abduction, murders and rape. However,

at their preliminary hearing she recanted her grand jury

testimony under oath, claiming that the police had forced

her to tell a “lie” to the grand jury. The State intended

to use these statements in its case against Gray but real-

ized that under Burton they were inadmissible against

Williams, Rainge and Adams.

Williams. Rainge, Adams, and (ray were convicted of

murder and rape, Willinms and Rzeinge were also con-

victed of aggravated kidnapping, and Gray was convicted

of perjury. Williams and Rainge requested a new sen-

tencing jury, which returned a death penalty verdict on

February 6, 1979, against Williams. Rainge was sentenced

to concurrent terms of natural life imprisonment for the

murders and to extended terms of imprisonment for the

ion hae

other offenses. Adams was sentenced, after a bench hear-

ing, to extended terms of imprisonment, and Gray, in a

later hearing, was also sentenced to extended terms of

imprisonment. Those convictions have been affirmed.

People v. Gray (1980), 87 Ill. App. 3d 142, cert. denied

(1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340;

People v. Rainge and Adams (1st Dist. June 7, 1982),

No. 79-565 (petition for rehearing pending).

In Jn re Weston, the Hearing Board and Review Board

of our Attorney Registration and Disciplinary Commission

both recommended that respondent, Archie Weston, be

disbarred hecause of misconduct involving his handling

of the estate of his client, Flla C. Graham, who died

intestate in 1974. In Anril 1978, a son of one of the heirs

complained to the Attorney Registration and Disciplinary

Commission. Respondent was informed of the complaint,

and the Inquiry Board forwarded a copy of the complaint

to the judge of the prohate division of the eirenit court

of Cook County. In Angust, a rule was issued by that

court upon respondent to show cause why he should not

be held in contempt of court. After securing a continu-

ance, respondent failed in probate court in November

1978 and was removed as administrator. He was subse-

quently adiudged in contempt of court. (That order was

later quashed after partial payment of amounts which the

court had found owing.) The administrator de bonis non

also filed a petition to surcharge respondent for waste

and neglect, and a judgment for $23,000 was thereafter

entered against him, apparently resulting in a sheriff’s

sale of his home.

The Hearing Board found that respondent neglected

legal matters entrusted to him, that he committed acts

prejudicial to the administration of justice and acts which

intentionally caused damage and prejudice to his client,

and that he commingled and converted a client’s funds,

all in violation of various disciplinary rules of the TIli-

nois Code of Professional Responsibility. Respondent

— 4a —

neither answered the disciplinary complaint nor appeared

to defend himself. The allegations of the complaint thus

stood admitted, and we held them adequately supported

by the evidence. We accordingly ordered that respon-

dent be disbarred. 7n re Weston (Oct. 22, 1982), No.

55675.

Williams urges that the matters disclosed by the record

and proceedings in In re Weston provide further support

for his contention that he was denied the effective assist4

ance of counsel, whereas the State submits that the evi-

dence of counsel’s performance in an unrelated matter is

irrelevant to the question of counsel’s effectiveness in the

capital case. We agree that ordinarily the record of coun-

sel’s performance at the trial in which his performance is

questioned is the only relevant consideration in determin-

ing whether his client was afforded the effective assist-

ance of counsel. We believe, however, that, in the unique

circumstances of this capital case, fundamental fairness

requires us to examine the additional information now

before us concerning counsel’s misconduct and the events

occurring during the same period that he represented

three defendants in a capital case to determine whether

it has any bearing on the quality of that representation.

We consider first, however, whether the evidence was

sufficient to prove defendant guilty beyond a reasonable

doub

Resolution of factual disputes and the assessment of

the credibility of the witnesses, is, of course, for the jury

(People v. Carlson (1980), 79 Tl. 2d 564, 583; People vy.

Zuniga (1973), 53 Til. 2d 550, 559), and we will not re-

verse a judgment of conviction unless the evidence is so

unsatisfactory or improbable that a reasonable doubt as

to the guilt of defendant remains (People v. Lewis (1981),

88 Tl. 2d 129, 151; People v. Carlson (1980), 79 Tl. 2d

564, 583; People v. Clark (1972), 52 Tll. 2d 374, 387).

The evidence showed that Larry Lionberg worked a

night shift at a gas station at 180th Street and Halsted

ae ae

near Homewood. He was visited there by his fiancee, Carol

Schmai, and another couple. Larry and Carol were last

seen by their friends about 2:15 a.m. on May 11, 1978, al-

though Larry apparently made a call to a former employ-

er from the station about 2:30 a.m. At 6:30 am., the

owner arrived at the station and found it unattended,

open and ransacked. Some money and merchandise valued

at $300 were missing. Police were called. Carol’s car

was found at the station; her purse was on the front seat.

The victims’ bodies were found on May 12 at about

10:30 a.m. in East Chicago Heights. The investigating

officer, P. J. Pastirik, testified that Larry was found face

down in a nearby field, shot in the head twice and the

back once. Carol was fuand in an upstairs room of a

nearby abandoned townhouse at 1528 Canon Lane. Carol,

also face down, had been shot twice in the head. She was

clothed in knee-socks and a partially removed sweater

and brassiere, and lying on a pair of jeans. A piece of

plywood was covering the lower part of her body. The in-

vestigating medical officer said that she had been shot

where she was found but could not say with certainty

that Larry had been, Tests run on a vaginal swab taken

from Carol at that time indicated that she had had in-

tercourse within the past 36 hours. There was no trauma

to the vaginal area; no foreign pubic hairs were found.

Neither Carol’s boots nor the murder weapon was re-

covered, Testimony indicated that bullet fragments re-

covered from each body had been fired from the same

gun. Powder burns around Carol Schmal’s wounds indi-

cated the weapon was fired from a distance of six to

12 inches,

While Officer Pastirik was at the scene the substance

of two anonymous calls was relayed to him. The calls

came from an unidentified male with a “black voice” who

said that the people who committed the murders were at

the scene of the investigation. He also described a red

Toyota and gave a license number reported to the officer

as GA 1390. It is unclear whether the caller connected

cont on

this number with the red Toyota. Officer Pastirik testi-

fied that as he and a partner walked towards a rather

large crowd that had gathered, two black men began

walking briskly away. The men were stopped and ques-

tioned when they reached a red Toyota parked nearby.

Dennis Williams, Verneal Jimmerson and the car were

taken to the station. Williams was never released. (The

charges against Jimmerson were dropped when Paula

Gray recanted her testimony at the preliminary hearing.)

Defendants Rainge and Adams were questioned later that

evening but were released; however, Adams’ car, a beige

Toyota bearing plates numbered GX 1390, was held.

The following day, May 13, Officer Pastirik inter-

viewed Charles McCraney, who lived on Hammond Lane

in East Chicago Heights. He admitted to making the

anonymous phone calls and identified both cars as those

he had seen in the early morning hours of May 11.

At this time, or shortly thereafter, McCraney also told

the police what he had witnessed on the 11th but said

he would not identify anyone until the police promised

to relocate him. He eventually identified all four defen-

dants as people he had seen in the early morning hours

of May 11, near 1528 Canon Lane.

That evening Officer Pastirik interviewed Paula Grav

and her sister, Paulette, who had come to the station

with their mother. The substance of the conversation

with the Grays was not admissible in the male defen-

dants’ trial, but it was at this time that Paula first told

her story to police. Her mother was apparently present

during some of the questioning. According to Pastirik’s

testimony, which did come out at the sentencing hear-

ing, Paulette Gray told him that Paula had told her

and her mother about the murders on the morning of

May 11. Paula apparently went with police to the scene

later that night to point out where the gun was thrown

in the creek and where Carol Schmal’s boots were put.

They were never found. Later that evening Rainge and

Adams were taken into custody and an assistant State's

== 7g —

Attorney from the Felony Review Unit questioned the

male defendants and the Gray sisters. A few days later

Paula Gray gave grand jury testimony substantially

the same as the story she told Officer Pastirik. How-

ever, as earlier noted, at the preliminary hearing ior

the male defendants, she recanted. She was indicted on

September 1 and retained Williams’ counsel to represent

her. Jury selection began on September 14.

The State’s case included testimony by one parent of

each of the victims, who testified as a “life and death”

witness. The owner of the gas station and the friends

who had last seen the victims placed the time of abduc-

tion as between 2:30 and 6:30 am. on May 11. Various

police witnesses testilied about discovering the bodies

and receiving the anonymous phone calls.

Charles McCraney testified before both juries. He stated

that as of May 11 he had been a resident of 1533

Hammond Lane for about two weeks. From a vantage

point in one upstairs room he could see his car parked

on Hammond Lane as wel] as several other cars which

were at various times parked about 10 feet away from

his, in front of Paula Gray's home at 1525 Hammond

Lane. From a window on the other side of his home

he could see across a courtyard to an abandoned town-

house at 1528 Canon Lane, where the body of Carol

Schmal was later found.

McCraney testified that on the night of May 10-11 he

was home playing his guitar and rehearsing music, Be-

cause he was worried about the “teenagers” in the street

possibly tampering with his car, every 15 minutes or so

he would go upstairs to look out his window and check

on it. Continuously parked in the street near his car,

from about 11 p.m., were a blue Chevrolet and a biege

Toyota (Adams’). At various times a yellow Vega

(Rainge’s) and a red Toyota ( Williams’) were also there.

Some time between 2:30 am. and 3 a.m, the red Toyota

appeared and parked next to the Chevrolet and beige

Toyota. Within a few minutes the yellow Vega drove

ae ES

up very fast. McCraney saw the red Toyota then drive

to the street light by his car; the driver, whom he iden-

tified as Williams, got out and broke the light. Williams

then returned to the parked cars and picked up the

driver of the Vega, whom McCraney identified as Rainge,

and drove off.

McCraney, now more worried about his car, went out

to check on it. He saw Paula Gray and an unidentified

man sitting in the Chevrolet. He did not “pay atten-

tion” to the beige Toyota and returned to his music.

Within a few minutes he heard a car revving its engine

in the courtyard, and he returned to his upstairs win-

dow. The red Toyota was stuck in the mud near 1528

Canon Lane. From his other window he saw four peo

ple leave the biege Toyota and run, some through an

abandoned building or through the courtyard, toward

1528 Canon. He identified Adams as one of the group.

The red Toyota was now freed; Williams and Rainge

got out and joined the group, now six to eight people,

and entered the building at 1528 Canon. He said that

he saw no women nor any “white people” in this group.

McCraney, feeling his car was now safe, paid no fur-

ther attention to the activity outside, but about 11%

hours later he heard a shot from the direction of the

townhouse the group entered. He had heard shots in

that neighborhood frequently and took no action. During

daylight, a few hours later that morning, he saw Wil-

liams again pull up to the now-broken street light and

kick the glass out of the street.

The next day McCraney saw Williams in the crowd

that had gathered in the field around the body of Larry

Lionberg. McCraney said Williams was asking people

there, jokingly, whether they had shot “those people.”

He overheard him say, again jokingly, “I saw them

jump when they shot them.” This was prior to Carol

Schmal’s body being found. When it was found, Mce-

Craney put “two and two together” and made his anony-

mous phone calls.

—

David Jackson was called to tesiify about a conversa-

tion between Williams and Rainge that took place on

May 15. Jackson overheard these two talking in a cell

in the intake section of the Markham police station.

Jackson, who had been arrested for burglary, was in

the cell with Williams, Rainge, Adams and Jimmerson.

Williams and Rainge were talking; the other two sat

apart on the other side of the cell. Jackson said that

Williams and Rainge each admitted to having had sex

the night before and that they “really shouldn’t have

took it from the lady.” Later Williams told Rainge he

was “glad he took care of the guy” because “he kept

running off with his mouth.” He reassured Rainge not

to worry because “they’re gone” and “the piece” would

never be found. Williams also said he would have to

“get somebody to take care of the lady that seen them

in the neighborhood the day they got arrested.” On

cross-examination, Jackson said Adams and Jimmerson

did not take part in the conversation. He also said that

he had a grudge against Williams and Rainge because

his wife had, some time before, identified them as the

two who had stolen a television from her at gunpoint

and roughed up his kids.

The balance of the State’s case dealt with physical

evidence. Tests run on the vaginal swab showed seminal

fluid from a person with type A blood. They also in-

dicated the possibility of intercourse with persons hav-

ing type A blood with a trace of “‘H’ substance,” and,

possibly, type O blood. This indicated that Carol Schmal

had had intercourse with someone who secreted these

blood types in their body fluids. Williams had type A

blood; Adams had type A with a slight trace of “‘H’

substance”; Rainge had type O blood. All three secreted

their blood types in their body fluids. Carol Schmal

also had type O blood, as did Larry Lionberg, but it was

impossible to tell if either of them was a “secretor.”

However, if Caro] was, this could explain the positive

test for O type blood or for A type with “‘H’ sub-

— 10a —

stance.” It does not appear, however, that it would ac-

count for the positive test for type A blood.

Three hairs were also admitted into evidence. These

were taken from Williams’ car, two from the back seat

and one from the trunk. The hairs were said to be from

Caucasians. There were no dissimilarities between one

of the hairs from the back seat and one from the trunk

and the hair of Carol Schmal. The other hair from the

back seat equally matched the hair of Larry Lionberg.

The expert who testified said he could not say with

certainty that the hairs in fact came from the victims.

On redirect examination he said that in a Royal Canadian

Mounted Police study of relatives, it was found that

there was a 1 in 4,500 chance that similar hairs, that

is, hairs matching in 99.9% of their characteristics,

came from different heads. The expert testified that it

would be less likely that matching hairs would come

from different heads among the general population, but

he refused to speculate about the odds when three similar

hairs were found.

Before the State rested, the jury was taken out to the

East Chicago Heights neighborhood, over defense ob-

jection, to view the scene. The trip was taken during

the day for the safety of the jury. When they returned

the State recalled Officer Pastirik to testify about changes

in the area since the day of the murders. At the close

of the State’s case the court denied defense motions

for directed verdicts.

Williams, Rainge and Adams presented alibi defenses.

Williams said he got home about 1:30 a.m. after taking

Jimmerson and his family to Chicago. He said he stopped

just before going home, for about five minutes, to talk

to Adams and Gray, whom he found in Adams’ car

parked in front of Gray’s home. He then went straight

home and did not get up until about 9 ami.

Rainge and his girlfriend both testified that they were

together at Rainge’s home with other members of his

family (who were already in bed) until about 3:30 a.m.

— lla —

He also testified that on May 11 he worked from 9 a.m.

until 7 p.m.

Adams’ mother testified that her son was home asleep

about 3:15 and he was still asleep at 7 a.m. when she got

up. After Adams’ attorney put two documents in evidence,

one indicating that license number GA 1390 was registered

to Virginia Miller of Galesburg, and the other indicating

that there had been rainfall in the Chicago area in the

morning hours of May 11, the defense rested.

In rebuttal, the State called two witnesses. Virginia

Miller testified that she had owned a 1969 Toyota, license

number GA 1390 in May of 1978: that in March of 1978 a

license plate was lost or stolen; and that her car had not

been in Cook County during May 1978 and for some time

prior to that date. The State also called an 11-vear-old

boy (one of the boys who found Lionberg’s body) who

testified that at about 5 p.m. on May 11 he had seen

Rainge in the field where the body was found. Closing

arguments followed.

In our judement the evidence warranted submission of

the case to the jury, Although the evidence is in large part

circumstantial, it does tend toward “a satisfactory conclu-

sion’’ and produces “a reasonable and moral certainty’’

that the defendant committed the murders and rape. (Peo-

ple v. Williams (1977), 66 Tll. 24 478, 485; People v.

Marino (1970), 44 Til. 2d 562, 580; People v. Bernette

(1964), 30 Tll. 24 359, 367; People v. Magnafichi (1956), 9

Til. 2d 169, 173: People v. Fletcher (1978), 72 Tll. 2d 66,

71.) As this court has often stated: ‘‘*The jury need not

be satisfied beyone a reasonable doubt as to each link in

the chain of circumstances relied upon to establish guilt,

but it is sufficient if all the evidence, taken together,

satisfies the jury beyond a reasonable doubt of the ac-

eused’s guilt.’’’ People v. Foster (1979), 76 Ill. 2d 365,

374, and cases cited therein.

The evidence, if believed by the jury, establishes that

Williams and others were present in the area where the

— 12a —

murders occurred and at the time they must have oc-

curred. The jury was not bound to credit the alibi defense

of Williams as against the eyewitness testimony which

contradicted it. (People v. Berland (1978), 74 Ill. 2d 286,

307 ; cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100

S.Ct. 64; People v. Jackson (1973), 54 Ill. 2d 143, 149.) The

circumstances of the disappearance of the victims, the

places in which they were found, the state of undress of

Carol Schmal, and the presence of seminal material that

reacted positively to a test for type A blood indicate that

they were forcibly abducted, that Carol Schmal was raped,

and that Larry Lionberg and Carol Schmal were mur-

dered. The net of circumstantial evidence tends forcibly

toward a conclusion that Dennis Williams was among

those responsible for the crimes. He was present at the

time and place; his blood type matches that of one who

raped Carol Schmal, hairs matching those of both victims

were found in his car; two witnesses heard him make

statements which suggested that he was involved in both

the murders and the rape. Circumstantial evidence may be

used to establish guilt (People v. Williams (1977), 66 Ill.

2d 478. 484; People v. Barnette (1964), 30 Ill. 2d 359,

367; People v. Russell (1959), 17 Ill. 2d 328, 331), and

any inconsistencies or lack of “links” in this chain are at

most minor. We believe, therefore, that the evidence, if

believed by the jury as it apparently was, was sufficient

to prove defendant guilty beyond a reasonable doubt.

Nevertheless, because of the newly acquired information

concerning Williams’ counsel, which we have concluded

may well have had an effect on counsel’s ability to repre-

sent his client in the trial of this capital case, we can no

longer say, with any degree of assurance, that Williams

received the effective assistance of counsel guaranteed

by the Constitution. We accordingly conclude that he

must be given a new trial.

Williams cites numerous instances of inaction by coun-

sel to demonstrate that he was denied the effective assist-

ance of counsel, including: the failure to make a motion to

—)

suppress the pliysical evidence seized from Williams’ car—

evidence which was perhaps crucial to the State’s case;

the failure to object to the testimony concerning the Ca-

nadian study on hair comparisons; the failure to object

to prejudicial material received by Williams’ jury which

it is alleged was designed to insure that the jurors would

know that Paula Gray had accused her codefendants; the

failure to object to the rebuttal testimony of the 11-year-

old boy; the failure to object to the information imparted

to the jury concerning the manner in which its verdict

would he reviewed; the failure to object to testimony

concerning the good character of the decedents; the fail-

unre to demand a full evidentiary hearing for the purpose

ot discovering the existence of a written statement alleg-

edly made by Charles McCraney within a few days of the

murder; and the failure to make a motion for a new trial.

We originally examined, under our Rule 615(a) (73 Tl.

2d R. 615(a)), the more significant errors alleged to have

occurred, notwithstanding the absence of objections and

the failure to make a motion for a new trial, and found

no plain error. We indicated that counsel’s decision not

to make a motion to suppress was perhaps an error in

judgment and that such errors do not establish incompe-

tency (¢.9., People v. Washington (1968), 41 Tll. 2d 16,21;

People v. Green (1967), 36 Til. 24 349, 351). However, we

are now aware, for the first time, of the unique circum-

stances under which counsel in this case was operating at

the time of the capital trial. In the light of these facts,

we can no longer characterize counsel’s decision not to

make the motion to suppress the hair evidence or to take

other action on his client’s behalf as professional misjudg-

ments made with full knowledge of the applicable law

and the facts. Moreover, while we do not believe that the

burden of defending three clients for capital murder be-

fore two juries, standing alone, necessarily reduced coun-

sel’s effectiveness, that fact in view of the new informa-

tion now before us cannot be disregarded. In our original

opinion we noted the additional burdens the simultaneons

=

trials before separate juries placed on both the court and

counsel, and for this and other reasons cautioned against

their fnture use. That added burden, of course, accen-

tuates the problems now posed.

It is apparent to us that the unique facts in this case

require that we forgo application of either of the estab-

lished tests, normally applied in determining whether a

defendant has been deprived of his constitutional right to

the assistance of counsel. (See, e.g., People v. Lewis

(1981), 88 Ill. 2d 129, 153-54 (appointed counsel); People

v. Murphy (1978), 72 Ill. 2d 421, 436 (retained counsel).)

As we originally indicated, the voluminous record here

shows that there were many instances where counsel made

able and vigorous objections and presentations, and we

cannot characterize his performance as actual incompe-

tence or as of such a low caliber as to reduce the trial

to a farce or sham. We believe, however, considering the

unique circumstances and sequence of events in this capi-

tal case, which will rarely, if ever, be duplicated, that the

interests of justice require that Dennis Williams be grant-

ed a new trial.

Accordingly, the judgment of the cireuit court is re-

versed and the cause is remanded to that court for a new

trial.

Reversed and remanded.

=

APPENDIX B

ORDER OF THE ILLINOIS SUPREME COURT

DENYING THE PETITION FOR A REHEARING

FILED BY THE PEOPLE OF THE STATE

OF ILLINOIS

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ll. 62706

(217) 782-2035

January 28, 1983

Mr. Michael FE. Shabat

Asst. State’s Attorney

Criminal Appeals Division

Richard J. Daley Center, Rm. 500

Chicago, Ill. 60602

No. 51870 — People State of Illinois, appellee, vs. Dennis

Williams, appellant. Appeal, Circuit Court

(Cook).

The Supreme Court today DENIED the Petition for

Rehearing filed in the above entitled cause.

Very truly yours,

/s/ Juleann Hornyak

Clerk of the Supreme Court

— 16a —

APPENDIX C

EXCERPT FROM THE ORIGINAL OPINION OF

THE ILLINOIS SUPREME COURT IN

PEOPLE vs. DENNIS WILLIAMS

(Note: The original opinion in People v. Williams af-

firmed the convictions. That opinion was later with-

drawn. Because of its great length, the original opinion

is not reproduced in full here, but the portions relevant

to effective assistance of counsel are given below.)

Slip Opinion, Pages 20-22:

Defendant argues, however, that the burden under-

taken by his attorney of defending three clients for cap-

ital murder before two juries necessarily reduced his ef-

fectiveness. In support of this defendant points to two

instances alleced to demonstrate incompetency: the

failure to move to suppress the evidence taken in the

search of his car, and the failure to move for a new

trial.

The failure to move for a new trial does not indicate

such inadequacy of counsel as to deprive defendant of a

fair trial. As discussed earlier, our Rule 615(a) (73 Il.

2d R. 615(a)) enables us to review the record. (See Peo-

ple v. Carlson (1980), 79 Til. 2d 564, 576; People v. Pre-

cup (1978), 73 Ill. 2d 7, 16-17; People v. Pickett (1973),

54 Ill. 2d 280, 282.) A defendant is entitled to competent,

not perfect, representation. (People v. Berland (1978),

74 Ill. 2d 286.) Even in the case of appointed counsel,

as to whom the standard measuring competence is at

least as high as that of retained counsel, a new trial will

be granted on incompetency grounds only if counsel

“was actually incompetent, as reflected in the perform-

ance of his duties as trial attorney, and if this incom-

petence produced substantial prejudice to the defendant

without which the result of the trial would prohably

— l7a—

have been different.” (People v. Greer (1980), 79 Ill. 2d

103, 120-21, and cases there cited.) Competency is de

termined on the basis of the totality of counsel's conduct

at trial. (People v. Murphy (1978), 72 Ll. 2d 421, 437.

The record reflects that Williams was vigorously de-

fended from his preliminary hearing through his sentenc-

ing. Counsel conducted able and searching examinations

of witnesses both on direct and cross-examination, as

well as extensive voir dire of the venire. He filed and

argued many motions challenging various aspects of the

State’s case, and made strong jury presentations at the

beginning and the end of the trial. In the totality of

his conduct he performed ably. We have recognized

many times that hindsight often dictates that different

strategy might have produced better results. However,

such “errors” in judgment do not establish incompetency.

See People v. Lewis (1981), 88 Ill. 2d 129, 155-57; People

v. Greer (1980), 79 Ill. 2d 103, 122; People v. Keagle

(1955), 7 Ill. 2d 408, 416.

The defendant argues that a motion to suppress would

have been granted. We do not now address the merits

of that issue because it is untimely. (People v. Green

(1967), 36 Ill. 2d 349, 351; People v. Harris (1965), 33

Ill. 2d 389, cert. denied (1966), 383 U.S. 971, 16 L. Ed. 2d

311, 86 S. Ct. 1282.) We suggest, however, that the law

on that question is not so clear as defendant indicates.

The car was impounded when Williams was arrested and

was searched two days later without a warrant. While

the State does not concede there was no warrant, nothing

indicates one existed. We assume here that one did not.

Several cases cited by the State indicate a delayed war-

rantless search of an automobile at the station after a

lawful arrest of the driver is constitutional. (Chambers

v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S.

Ct. 1975; see also Colorado v. Bannister (1980), 449 U.S.

1, 66 L. Ed. 2d 1, 101 S. Ct. 42; Texas v. White (1975),

423 U.S. 67, 46 L. Fd. 2d 209, 96 S. Ct. 304.) Defendant

responds that the reasoning of Coolidge v. New Hamp-

ee

shire (1971), 403 U.S. 448, 29 L. Ed. 2d 564, 91 S. Ct.

2022, demands that this delayed search be held uncon-

stitutional and its fruits suppressed. (See also Arkansas

v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 5S.

Ct. 586; United States v. Chadwick (1977), 483 U.S.

1, 53 L. Ed. 2d 538, 97 S. Ct. 2476.) Even if we concede,

for the argument, that there was no probable cause to

arrest Williams and impound his car initially, probable

cause did arise that evening when Paula Gray talked to

the police and when McCraney, the following day, identi-

fied the car. The question thus presented would be wheth-

er Chambers would allow a warrantless search of an im-

pounded vehicle when probable cause develops after im-

poundment. We are not so certain of the resolution of

this issue as to determine that counsel in this case was

incompetent for not raising it. While his decision not to

make a motion might have been an error in judgment, it

does not establish incompetency. People v. Washington

(1968), 41 Til. 2d 16, 21; People v. Green (1967), 36 TI.

2d 349, 351; People v. Palmer (1963), 27 TI]. 2d 311, 314.