People v. NelsonPeople v. Nelson
In a jury trial in the circuit court of McLean County defendant, William H. Nelson, was convicted of burglary and theft over $150. He was sentenced to the penitentiary for a term of seven years on the burglary count and five years on the theft count, to run concurrently. The appellate court reversed and remanded (77 Ill. App.3d 85), and we allowed the People‘s petition for leave to appeal. In reversing, the appellate court held that the assistant public defenders who represented defendant and a codefendant
In separate informations, defendant and a codefendant, John Rogers, were charged with the offenses of burglary and theft over $150, and the McLean County public defender was appointed to represent them. At their joint preliminary hearing assistant defender John Schwulst represented both defendant and Rogers. Thereafter defendant was represented by assistant defender William Paul, while assistant defender Schwulst continued to represent Rogers. Prior to defendant‘s trial Rogers pleaded guilty to the charge of burglary; however, at that time he had not yet been sentenced.
The evidence at trial showed that in the early morning hours of August 15, 1978, Maupin‘s Market in Saybrook was burglarized. The owner testified that a number of cartons of cigarettes, some keys, and a quantity of change were missing from the store. Witnesses were unable to describe the perpetrators, but they testified that two persons departed the scene in a light-blue pickup truck. A short time after the occurrence an Illinois State Trooper noticed a pickup truck that was parked on a rural road and matched the description given by witnesses. The officer observed grocery sacks containing cigarettes in the rear of
At trial, defendant called only one witness, the codefendant, John Rogers. The examination conducted by defense counsel consisted of the following:
“Q. Please state your name.
A. John Louis Rogers.
Q. Mr. Rogers, calling your attention to August 15, 1978, at approximately 3:00 o‘clock p.m., were you involved in a burglary of Maupin‘s Grocery in Saybrook, Illinois?
A. I refuse to answer the questions on the ground that it may incriminate me on the Fifth Amendment.
* * *
Q. Mr. Rogers, isn‘t it true that you picked up William Nelson hitchhiking after you left Saybrook on that night in question?
A. I refuse to answer the question.
Q. On the Fifth Amendment?
A. On the Fifth Amendment.
Q. Mr. Rogers, isn‘t it true that you burglarized that super market with another person and then dropped that person off who lived in Saybrook?
A. I refuse to answer that question on the Fifth Amendment.
Q. Mr. Rogers, isn‘t it true that you gave Mr. Nelson coins that were taken from that market in Saybrook, Illinois, on that night in question after you picked him up?
A. I refuse to answer on the Fifth Amendment.
Q. Isn‘t it true that you gave him two keys along with those coins after you stopped to pick him up when he was hitchhiking outside of Saybrook?
A. I refuse to answer on the Fifth Amendment.
Q. I have no other questions, Your Honor.”
At the conclusion of this testimony the defense rested. After the conference on instructions defendant‘s counsel indicated that Rogers wished to testify. The court thereupon
At no time prior to or during trial, or in post-trial motions, did defendant suggest that a conflict of interest had arisen as a result of the alleged joint representation of defendant and Rogers by the public defender‘s office, and no motion was made requesting that independent counsel be appointed for that reason. Defendant filed two pro se motions which called into question the conduct of counsel. One, a motion for retrial, suggested that defendant‘s counsel, William Paul, intimidated John Rogers, resulting in Rogers’ refusal to testify. The results of the circuit court‘s inquiry prior to sending the case to the jury did not support this contention. The other motion, in the form of a letter to the circuit court, suggested that there was a “conflict of interest” between defendant and his counsel because of disagreements over such matters as the waiver of a jury trial and counsel‘s willingness to interview John Rogers. Defendant in this letter requested that another attorney from the public defender‘s office, or an independent attorney, be appointed to replace William Paul, but did not point out any genuine conflict of interest. In addition, defendant filed a supplemental pro se motion for retrial, alleging that he had been denied legal representation from January 1, 1979, to January 25, 1979. The basis for this motion was that assistant defender Paul resigned from the public defender‘s office on January 1, 1979, and was not replaced by another assistant defender until January 25, 1979. In that interval no motions were heard, but defendant did not allege that he was prejudiced in any way.
The rule, long established in this jurisdiction, is that a criminal defendant in need of representation is entitled to
Although it has been determined both by the United States Supreme Court and this court that joint representation of codefendants is not per se violative of constitutional guarantees of effective assistance of counsel (see Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173; People v. Precup (1978), 73 Ill.2d 7; People v. Durley (1972), 53 Ill.2d 156), the question has arisen repeatedly whether particular cases involving joint representation of codefendants involve defenses so antagonistic as to create a conflict of interest. (See, e.g., People v. Vriner (1978), 74 Ill.2d 329; People v. Echols (1978), 74 Ill.2d 319; People v. Berland (1978), 74 Ill.2d 286; People v. Precup (1978), 73 Ill.2d 7; People v. Durley (1972), 53 Ill.2d 156; People v. Johnson (1970), 46 Ill.2d 266; People v. Robinson (1969), 42 Ill.2d 371; People v. Ware (1968), 39 Ill.2d 66; People v. McCasle (1966), 35 Ill.2d 552.) The question to be addressed in cases where codefendants are jointly represented by one attorney or entity is whether there was an “‘actual conflict of interest manifested at trial.‘” (People v. Vriner (1978), 74 Ill.2d 329, 341, quoting People v. Berland (1978), 74 Ill.2d 286, 299-300.) Once such an actual conflict is identified, it is unnecessary for a defendant to demonstrate that prejudice resulted therefrom in order to sustain a finding of a violation of the right to counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173; People v. Stoval (1968), 40 Ill.2d 109, 113; People v. Berland (1978), 74 Ill.2d 286, 303.) In formulating that rule, this court relied on Glasser v. United States (1942), 315 U.S. 60, 75-76, 86 L.Ed. 680, 702, 62 S.Ct. 457, 467, where it was said:
“To determine the precise degree of prejudice sustained * * * is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”
See also People v. Berland (1978), 74 Ill.2d 286, 304.
In People v. Robinson (1979), 79 Ill.2d 147, this court declined to adopt a per se rule that attorneys in a public defender‘s office are members of an entity. We expressed the opinion that “the decisions of the Supreme Court and this court (see Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173; People v. Stoval (1968), 40 Ill.2d 109; People v. Kester (1977), 66 Ill.2d 162; People v. Berland (1978), 74 Ill.2d 286; People v. Vriner (1978), 74 Ill.2d 329) furnish guidance adequate to avoid conflicts of interest which will impede the furnishing of effective assistance of counsel.” (79 Ill.2d 147, 159-60.) In People v. Miller (1980), 79 Ill.2d 454, we said that where the question of conflict of interest arises “a case-by-case inquiry is contemplated whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender‘s office. See, e.g., People v. Smith (1967), 37 Ill.2d 622.” 79 Ill.2d 454, 462.
The facts in People v. Miller (1980), 79 Ill.2d 454, are similar to the facts here. In Miller the assistant public defender assigned to represent the defendant indicated that he would call Alfred Myles to the stand. Myles had
Defendant argues that this case is distinguishable from Miller because the assistant public defender representing Rogers had represented both Rogers and defendant at a preliminary hearing. He contends that because of this preliminary representation the public defender “was certainly in possession of confidential information relating to the defendant‘s defense when he advised Rogers to plead the Fifth Amendment.” He argues that the joint representation therefore created an actual conflict of interest and the assistant public defender was placed in the position of having to fulfill his obligation to one client at the expense of another.
We note that section 3.5(b) of the ABA Standards, The Defense Function (1971), which proscribes joint representation “if the duty to one of the defendants may conflict with the duty to another,” makes exceptions “for preliminary matters such as intitial hearings or applications for bail.” Assuming, arguendo, that Mr. Schwulst‘s temporary representation of both Rogers and defendant constituted joint representation, we fail to perceive in what manner it could have affected defendant‘s representation
We conclude that there was no conflict of interest demonstrated by this record, and for the reasons stated the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court reversed; circuit court affirmed.