*1 v. Hoskins pockets were located incident lawful arrest. cert. denied 469 U.S. 81,105 L. Ed. 2d S. Ct. 142. Summarily, judge’s we find that the trial order granting the motion the arrest and evidence quash suppress was based an errone- ous understanding law. The proper application law to case facts instant and search stop establishes was valid. therefore We reverse order of the circuit Peoria court of County.
Reversed and remanded. STOUDER,
HEIPLE JJ., concur. ILLINOIS, THE PEOPLE OF THE STATE Plaintiff-Appellee, OF DACE, CLARENCE Defendant-Appellant.
Third District No. 3 — 86—0477 23, 1987. Opinion filed March *2 J., HEIPLE, concurring part dissenting part. Lilien, Office, Ottawa, Appellate
Thomas A. of State Defender’s appellant. Petka, (Walter Hehner, Attorney,
Edward State’s of Joliet P. of State’s Office, Attorneys Appellate counsel), People. Prosecutor’s for the JUSTICE SCOTT delivered the of the court: opinion 21, 1985, At 7:40 a.m. on approximately Roseleen was found on the floor of Kilcoyne Rudy’s 700 Club city Joliet. was an Kilcoyne employee club and on the pre- ceding evening night had tended bar and other performed tasks associated with such employment.
An autopsy performed, and determined cause of death gunshot was two wounds to the head. During examination, medical blouse, removal of the victim’s it was dis- covered she had abrasions on one hand and a fresh contusion on the left the left elbow. On arm were found two wounds consistent with human bite marks and four such wounds were discovered on the right arm. It was the opinion the examiner that the bite marks had been inflicted within two hours of the victim’s death. Rasmussen,
Dr. James a forensic odontologist for the office of coroner, Will County specialized training bite mark analy- sis at the Northwestern Dental University School. The doctor deter- mined that the bite marks were of origin human and then went *3 through a scientific of procedure making an impression or of casting each bite mark. four bite Ultimately marks were reproduced in hard plastic. four bite marks reflected four to eight teeth. He then consulted with Drs. Pierce and Smith of Northwestern University School, Dental who had in the experience comparison of bite marks with impressions of the same. 5, 1985,
On March a search warrant was issued for photographs and casted impressions defendant, of the teeth of the Clarence Dace. Such impressions and casts as well as made photographs were and taken of 6,1985. the defendant’s dentition on March
Dr. Pierce and Dr. Smith Larry Steven of the forensic dentistry department of University Northwestern Dental School later testified during the of defendant, trial and the substance of their testi- mony that the models of the defendant’s teeth matched each of the bite marks on body. the victim’s murder,
The defendant for was indicted and tried two counts of one for shooting the victim and one for murder Kilcoyne felony based on robbery. The defendant had been sentenced on previously 23, 1982, July for a term of four years’ imprisonment for the offense parole 20, residential He was released on on March burglary. 1984. His term was cut short because this parole court issued an
opinion, court, which was affirmed supreme his convic tion should be reversed and the case remanded for (Peo a new trial. ple v. Dace App. 3d aff'd mandate of this court ended officially defendant’s issued 1984. appeal December Subsequent detained, to this date defendant was albeit as wrongfully parole violator, County jail February 28, 1985, in the Will from March
During trial, the State called Victor Moffett to tes- Moffett tify. testified that he had County jail been Will since invasion, charges violence, November 1984 on of home armed and 6, 1985, robbery armed and that on March he asked the defendant what he for jail and the defendant indicated murder. It was Moffett’s that he testimony telling also overheard defendant other inmates that he had been in a bar and was reaching money and, when the woman him when she went for her he gun, saw took from her and her in the away shot head. Moffett also testified murder, he told the defendant it was cold-blooded to which the defendant if responded that he hadn’t done it she would have killed them. The defendant further made statements to the effect that he wanted to “L.C.,” take the to a but his quarry companion, did not want the body in his clean car. 6, 1985,
Later day spoke on of March Moffett to his at- busy Markese, torney, Bart and what had said. reported office, and, Markese in turn Attorney’s talked to the State’s March Moffett Attorney’s talked to Officer Baum the State’s office the defendant’s remarks. A about short time later Moffett was released from jail without bond. Moffett’s codefendant had posting convicted; however, tried been at the time defendant’s trial in 1986, Moffett tried. in the in- been The defendant stant Kielian, case was assistant represented by attorney Gerald an Bart firm public defender also Markese in a law en- partner gaged in the private practice law. trial,
At the conclusion of the defendant’s the jury returned guilty charges verdicts on two murder and the court sen- to a term imprisonment upon tenced the defendant of natural-life convictions. *4 if they perti-
Additional facts will be set forth when and become in this nent to a determination of the issues raised appeal. defendant’s that er We first address contention reversible ror trial is a partner occurred and new mandated because law him against his counsel an State witness at represented important
895 the time the trial and his consequently attorney labored under per se conflict of interest.
It Bart represented is not that Markese disputed attorney Moffett, who against who was a crucial witness defendant and gave is that damaging testimony against undisputed him. It also Kielian, Markese partners and defendant’s Gerald are attorney, private however, practice does, of law. The State argue conflict-of-interest has issue been waived because point during raised trial or in defendant’s fail post-trial Normally motions. ure to raise an issue in a motion for new trial constitutes waiver and the issue urged cannot be as the basis for (People reversal appeal. v. (1978), 7, However, 73 Ill. 2d 382 Precup 227.) N.E.2d a strong showing knowing of an intentional waiver of a conflict-of-inter est issue before will required applied. is the waiver rule v. (1979), 275, 39; Mathes Ill. App. 69 3d 387 N.E.2d v. Arre People guin 92 (1981), 899, bar, Ill. 3d 402.) 416 N.E.2d In the case at is record devoid of any indication that was ade defendant quately advised the conflict-of-interest Nor presented. situation was he significance informed of conflicts of interest and how such conflict affect, can subtly, sometimes a client’s representation. Furthermore, the' fact counsel, Kielian, attorney during assisted the trial attorney Scott Reich does not waive any conflict problem might have in a post-trial been raised motion. It was Kielian actually who prepared argued motion for new trial. The two attorneys represented together. Reich, Kielian, like trial, overlooked conflict at so it could not be expected that he (Reich) would function independently after the trial. This is anot case where the waiver rule should be applied.
Turning our attention as to underlying question whether Kielian, defendant’s attorney, labored under a conflict of in terest, we note that it is guaran well settled the constitutional tee of effective assistance of counsel implicitly includes an assurance defendant will enjoy undivided free attorney’s loyalty, from or v. conflicting obligations. (Glasser interests inconsistent United S. 457; States U.S. 86 L. Ed. 62 Ct. Peo v. ple Ill. Washington (1984), 2d 461 N.E.2d a When claim of ineffective representation based on conflict of interest is made, the defendant need not when an prejudice demonstrate actual or conflict of potential professional Prejudice interest shown. will People 67; v. presumed. Coslet Ill. 364 N.E.2d 441; v. People (1968), 40 Ill. 2d Stoval Kester
896
In the case confronted a situation where instant we are with defendant, Kielian, witness, and for the counsel for the counsel Markese, the court to their appointed by represent respec were both as by public tive clients virtue of their assistant defenders. positions The State were associ argue attorneys would because both office, was se of in per ated with there not a conflict defender’s argument The this overlooks one further advancing terest. State of a law ingredient, attorneys partners were also namely, It general firm and of law. is well jointly engaged practice firm knowledge imputed of one member of a law is settled v. Karas 81 Ill. (People App. to other members of firm. one of a 990, 1026.) 3d 401 A conflict interest for member N.E.2d firm. v. Free firm extends to all members of a 1274; People Arreguin Ill. 2d In a case two of a where members interests, it can con conflicting only firm clients with represent repre same is you attorney cluded that have situation where the In the case Markese’s relation senting attorney both instant clients. Moffett his of his client’s case knowledge as counsel for and ship Kielian, who the defendant. imputed attorney represented must be to case se conflict of in per In the instant we have a classic of a case error. terest which reversible constitutes dictated, new it is in being
A of this for a trial remand case to another issue which is certain on this court address cumbent there to be considered whether during recur the retrial. The issue of a search warrant for photo cause for issuance was teeth. and defendant’s graphs impressions State’s the defendant against An essential case portion odontologists of three who com- testimony consisted of the forensic marks on the victim’s arm with teeth of the teeth pared utilizing and by photographs was made comparison defendant. The teeth. The photographs impressions of defendant’s executing them. The warrant a search warrant for were obtained on the of Officer Baum complaint issued March impressions were photographs The police department. Joliet sup- to trial moved to prior The defendant following day. taken the information; however, motion was denied. this said press whether determined is precise question constitutions were be Federal and State violated rights under the because of lack of probable was obtained illegally cause the warrant XIV; I, Ill. art. Const., IV, Const. sec. S. amends. cause. U. discloses for search warrant of the complaint An examination that it only allegations contained two to which relate It alleged defendant was the last person known to be present with the victim while she was still Kilcoyne alive and on duty at hours Rudy’s during early morning Club of February 21, 1985. complainant Baum made further allegation that while interviewing 28, 1985, the defendant on he told by the that he in last fact was the in the club be- sides the victim and while he thoughts there entertained having sex with her. The did not indicate the time complaint on February 21, 1985, when the found, victim’s did attempt nor indicate time her death. significance fail to see *6 any
We the allegation that defendant stated to Baum that had thoughts Officer he entertained of having sex with the The of the sex thoughts victim. defendant about were not crime, themselves a nor they were connected to the events re- complaint. lated in the What this court is confronted with is the de- termination of whether the allegation sole was the last to with person known be the victim was is while she alive suffic- ient probable to establish cause. State,
The in support argument their that probable cause ex isted, cites rules, wit, cases' certain stating fundamental to that the standard of assessing probable cause is the probability of criminal ac tivity, proof beyond (People reasonable doubt (1983), v. Exline 98 Ill. 112), 2d probable cause must be determined officer, from the of the standpoint police and such determination must based the v. totality (People be circumstances Stout (1985), 498), 477 and that the issuing judge N.E.2d in in terpret and test the a supporting using affidavits realistic fashion common sense v. Skinner 136 Ill. 3d 483 App. 399). The foregoing State, stated, cases cited set as we forth guidelines are of determining dispositive but little assistance in issue in case. The presented this State does cite one case that presents a situation somewhat similar to the one us. The case before v. 103 468 People Gacy Ill. 2d N.E.2d 1171. victim, Piest, murdered,
In Gacy Robert who was was a man to young working pharmacy. a His mother went the store to minutes, him Piest his to pick up from work. told mother wait few he to talk needed leave store and to a contractor fellow about a had seen job. Gacy, contractor, summer been store on the date in one time at 6 time 8:50 question, p.m. p.m., a second at checking which was the time Piest After into proximate disappeared. Gacy history learned that had a of sexual background, was Gacy’s our supreme allegations complaint offenses. Based on these there cause issue a search warrant court held that was vehicles, his and residence. Gacy, search an of the issu- Gacy The affirmance argues supports State disagree. in the instant case. We ance of the search warrant us. It far more information than the one before contained complaint with Gacy last contained information was Piest Gacy involved a narrow one. period Piest. time was minutes Piest’s together at 8:50 and 20 later pharmacy p.m. left for the warrant also began application to search for him. The mother activity criminal lengthy history Gacy’s contained a detailed and youths. 15- and against 16-year-old included sexual crimes brief, argu in the trial court in not cited in its the State While on the case of suppress the motion to relied ing against N.E.2d 1350. involves Milone Milone to a war pursuant from a defendant taking of teeth At rant which found to have been issued with Kandel, 14, had evening age September Sally 5:15 on a p.m. ride, promising at at for a p.m. bicycle dinner home and 6:10 left Her reported home at She returned. absence was never p.m. her found bicycle along at 10 and at a.m. police p.m. Sally’s At 5:50 was discovered body side of a road. a.m. country She been to death and 200 feet from her beaten bicycle. about thigh mark on her after death had occurred. had been made bite to a found a bar which was handle police Near This determined to be the murder cart. bar was shopping Jewel *7 a later that such employer reported The defendant Milone’s weapon. re employees in Other was from a cart his warehouse. missing bar The his protection. carried the bar for that the defendant ported to conflicting police. defendant statements gave also of a existed the issuance In that cause finding probable that Milone, in it is had substan- police search obvious warrant to the homicide than linking more information the defendant tially Milone had informa- in the instant case. In police police had that the defendant have alleged established could they tion time would Sally of the murder at the the victim been at the site bicycle. the area on her have reached defendant, argument in of his that there was support Ill. 2d cause, People (1980), case of v. Creach cites the
probable
held
there
probable
court
that
supreme
Our
victim,
for the murder
the defendant Creach
cause
arrest
Iroin,
Dolores
who was found murdered at
7 a.m. in
approximately
in
September
police
near
the C.T.A. tracks
Evanston. The
knew that the
living
defendant Creach
been
with the victim and
that
midnight
she was killed sometime after
a given
on
date and
at
defendant had last seen the victim
1:30 a.m.
that date
and that defendant had
left for Ohio in the victim’s
unexplainably
car on the
of her
In
morning
death.
Creach we have
theft and
flight by a defendant
in
knowledge
addition to
the defendant
was the
person
last
see the
alive. The
relies on
victim
argument
Creach
of his
that for
support
probable
you
cause
need
more information
than
mere
that a defendant was the
knowledge
Schlemm,
last person to be with a victim. See
v.
People
also
82 Ill. App. 3d
That defendant was person victim, the last to be with the Rose leen Kilcoyne, Rudy’s 700 during early Club hours of Febru ary 1985, may have given police suspect reason that he however, involved the homicide. Suspicion, does not constitute probable cause. v. Davis 1150.) The facts and circumstances within Officer Baum’s
knowledge would not warrant a man of
believing
reasonable caution
the defendant
committed
the offense.
Francisco
Ill. 2d
We are unaware of any Illinois deciding precise cases is sue of whether cause exists where all the knowledge pos police sessed that the by defendant was last seen with the victim. A case has Federal held such minimal knowl edge does not support finding (See Woodard v. Ark., Sargeant (E.D. F. 1983), 567 To hold otherwise Supp. would be an protected invasion It would constitutionally rights. permit intrusion right constitutional and the sei privacy zure of fingerprint samples, samples, impressions blood and dental upon suspicion based and probability grounds and not or reasonable probable cause.
For the reasons stated evidence to the relating photographs teeth should have been sup- pressed. conviction the defendant court circuit of Will is reversed and
County this cause is remanded for trial. new Reversed remanded. J.,
STOUDER, concurs. *8 HEIPLE, in dissenting part: and concurring part JUSTICE for counsel I determination that where agree majority’s with as- were the defendant and counsel for a crucial State’s witness both a law partners as well as public County sistant defenders of Will law, a per firm and of se con- engaged general practice jointly error. This case flict of exists constitutes reversible interest However, I agree for retrial. do not must be sent back accordingly photographs to the and relating evidence ground on the suppressed teeth should have been the search was issued without warrant case, complaint search warrant set
In the instant five bitten approximately forth fact the victim had been hands, It arms, also stated that times on her and shoulders. with the victim at being admitted the last early morning February of the murder hours scene This 1985. victim’s was discovered of a crime probability sufficient a fair that evidence establish teeth. from an of the defendant’s would be found impression commonly accepted Rather than on well-established relying at- warrant, of a the majority for the issuance search principles cases to particular particular justify facts of tempts parse short, of a In in the absence their invalidation this warrant. number, color, and cow” case with the same location “spotted anal- are not this spots, they going justify majority’s warrant. misses the mark itself is be condemned. ysis process warrant, re- To the issuance of a search facts must support that evi- a fair issuing judge probability lated to the which establish searched. The place of a will found in the to be dence crime criminal assessing is the probability standard for cause is not doubt. Probable cause activity, beyond a reasonable proof technician, by but instead legal to be determination rendered with the consider- prudent person dealing practical a reasonable and life. ations everyday those es- search in this case falls well within
Clearly, the warrant I dissent. legal guidelines. Accordingly, tablished