*1 ship gang-related evidence and we will not extend it to this case. However, if here, even Strain apply did question we find that permitted by the trial court probe was sufficient venire prejudice bias and against drug dealers. question, With that jurors were asked they whether feelings drug about dealing and whether feelings those would impact their ability fairly decide this case based on the evidence and law. question, Defendant’s and the one judge asked jurors’ about prior involvement crimi- cases, nal juror worked to expose predisposition toward, and bias against, drug dealing and complied therefore with Strain.
Because we remand this we need not discuss the remainder of defendant’s claims. For the foregoing reasons, we reverse and remand for a new trial.
Reversed and remanded.
HOFFMAN, EJ, HARTMAN, J., concur. ILLINOIS, THE PEOPLE OF THE STATE Plaintiff-Appellee, OF v. ALVARO al., et Defendants-Appellants. ORTEGA (5th Division) First District No. 1 — 99—1761 Opinion filed March *2 QUINN, J., dissenting. (Robert Ltd., Chicago A. Novelle Navigato,
Serpico, Novelle & counsel), Timothy Roellig, appellants. for R. (Renee Devine, Attorney, Richard A. Chicago Goldfarb, State’s Margaret Campos, Annen, Tracey
J. Attorneys, counsel), Assistant State’s for the People. JUSTICE REID delivered opinion of the court: This is an interlocutory matter before pursuant this court to Il 306(a)(7) (166 Supreme 306(a)(7)). linois Court Rule Ill. 2d R. Follow ing granting by the trial court of a disqualify motion to defense counsel, petitioned this court for appeal. leave to This court petition. dismissed the Alvaro subsequently filed a petition for leave appeal to the Supreme Illinois Court. Pursuant to its supervisory power, Supreme the Illinois Court petition denied the leave to appeal and remanded the case to this court with directions to appeal. hear the
THE FACTS (Natal) Alvaro (Ortega) and Eugenio Natal were arrested for the delivery of a substance, controlled namely grams 999.38 401(a)(2)(D) cocaine, in violation of section of the Illinois Controlled (720 570/401(a)(2)(D) (West 1992)). Substances Act ILCS delivery place took August 1, 1996, with the occurring arrest the following day. Although Novelle, Sr., Robert had previously appeared on the defendant’s behalf in pre-arraignment stages of the proceedings, he filed a appearance formal in October 1996. *3 trial,
Prior to the filed a motion to disqualify Robert Novelle grounds Novelle, the that Donald his brother partner, and law represented Juan Montez in four different criminal matters. Juan Montez, when Robert lawyer, Novelle acted as his used the aliases Mejia Valentine and Juan It possible Soliz. that Montez was the Mejia alias and is the real name. Montez working was for the Metropolitan Group (MEG), Enforcement compensation either for pending to work off criminal cases. People’s The motion alleged that representation of Montez per created a se conflict of interest. Donald Novelle testified he learned Montez was witness grand jury proceeding in which Ortega target. was a The work Montez doing was for the organizing purchase MEG involved the cocaine from appeals. now allegedly Donald Euge- Novelle heard that nio Natal was purchase involved this cocaine but would not be charged. Donald Novelle claims he agreement learned of the between Montez and the MEG after the transaction. He also testified to representing Montez in attempt agreement his to enforce the whereby he worked for the The People deny agreement MEG. that such an ex- ists. When was testify grand jury, called to before a Montez invoked his fifth amendment testify. not to 1996, informal trial 6, conference with the in an September On Donald conflicts, recommended that Novelle court to it was resolve suggested represent Montez. This was lawyer have another responded impropriety. Donald Novelle any appearance eliminate court, that, waivers before purported conflicts based on and the facts involving cases Montez freely he could discuss both the including firm, Robert with members of any alleged Novelle although Donald subsequent proceedings, Novelle. In Greg matters, in pending criminal represent continued to Montez 1996, being while September on his behalf. On appeared Ginex Ginex, jury. Montez represented grand testified before the Montez involving him. receive the cases His ultimately did convictions sentence 30 months’ At time of the conference probation. was and the in this Montez still owed between Novelle trial court legal firm Novelle’s for services. 20, 1999, they
On the trial court asked and Natal if April nature of Each understood the the conflict interest. questioned The responded that he did. trial court also each defendant regarding legal in the age, experience system. level of education and potential Both indicated they defendants waived conflicts so that Robert could Robert represent Novelle continue to them. Novelle told the court he had every informed the defendants of relevant fact Despite waivers, of the conflict of purported interest. trial court found the se conflict of interest. existence of The satisfy court also no duty found that waiver could the trial court’s ensure loyalty that a defendant received the undivided of his counsel.
The April 20, trial court’s order entered orally. The proceedings stayed appeal. April then pending were On April trial court entered a on the written order substance May 1999, Ortega for petition oral order. On filed a leave to 306(a)(7). Supreme Rule filed appeal under Illinois Court petition. petition. an answer dismissed the Defendant to the This court Supreme next petition appeal filed a the Illinois Court. leave denial, petition That denied. In their court was directions to hear supreme court remanded the case to court with appeal.
ANALYSIS *4 Ortega disqualifying that the erred in defense argues trial court representation contempora- counsel of Montez neither because was representation nor to either client’s neous with the current harmful argues knowing any interests. was waiver of Ortega also that there that, although right interest such the constitutional of 118
counsel choosing right of his own sixth amendment to the competition, right undivided of counsel are in of loyalty counsel choosing prevail. Ortega his own must Specifically, argues that the representation by Montez years of was over two time was He also prior representation arrested. maintains ended and did if any point. did, Ortega not resume at Even it claims that potential testimony Montez’s potentially would exonerate Natal and result, not him. Ortega argues potential As a Montez’s testimony was truly not opposed points that, out interests. also since unenforceable, the trial agreement any court found Montez’s potential might benefit Ortega’s Montez at the received cost of interests was essentially mooted. respond People that the trial court in disqualify- was correct
ing light defense in se conflict interest ex- of that, ists in The People argue this case. where an actual or possible conflict of professional exist, found to prejudice presumed. is The People that, although emphasize Robert Novelle’s firm no longer Montez, represents Donald did represent during Novelle Montez hear- ings directly related facts and to the circumstances of the case judice. argues sub It was properly concerned with the appearance impropriety, jury aware of prior should become representation People’s directly witness matters related this case. The trial court expressed concern that Robert Novelle’s might subliminally limited, cross-examination restricted or espe- cially light gained way attorney- by information privilege client not supposed and Montez’s belief that Natal was to be prosecuted arrested or for the crime.
Appellate legal review of a de purely question People nova. v. Hall, (2001); Dameron, 198 173 v. 156, Ill. 2d 196 Ill. 2d 162 People (1995). (2001); Krause, People v. 3d A question 62 credibility law arises when neither the of the witnesses nor the facts Walker, are at (1999), citing issue. v. People 3d Oaks, People v. 169 Ill. 2d 447-48
Ortega claims that trial counsel defense should have been because, disqualified although there was the for a conflict of interest, position harm the defendants’ was nullified the know ing right waivers made “The case. the effective assistance counsel is a fundamental entitles an to the accused undivided Lawson, (1994); loyalty of his counsel.” v. 208-09 Ill. 2d I, 8; Const., VI, § Ill. Const. art. amends. XIV This designed adversary process. to assure criminal fairness (1990), citing United Ill. 2d States Morrison, 361, 364, 564, 567, 101 S. Ct. 449 U.S. 66 L. Ed.
119 (1981). counsel right to right to counsel includes The constitutional 230, 232 Basler, Ill. App. v. 304 3d choosing. People of one’s own (1979). a 180, 185 “Where (1999); Johnson, v. 75 Ill. 2d People a exists, there is correlative to counsel constitutional People interest.” v. John that free from conflicts of representation (2001). attorney’s relationships vis-a 117, 121 An son, App. Ill. 3d 322 that more, disabling a conflict can, create certain clients without vis 290, Coleman, App. 301 Ill. 3d People trial. v. the outcome of a taints (1998). either association with contemporaneous 299 “Counsel’s creates relationship a crime or a State’s witness forms such victim 299, v. citing People Coleman, a 301 Ill. 3d at per App. conflict se.” (1988). attorney’s 1, presenting Ill. 14 Where facts an Spreitzer, 123 2d court, the court possible are made known to conflict interests are measures the extent of the risk and take whatever must ascertain protect guarantee the accused’s of effective assistance necessary (1989), Thomas, 104, citing Holloway Ill People v. 131 Ill. 2d counsel. Arkansas, 475, 484-85, 426, 434-35, 2d 98 S. Ct. v. 435 55 L. Ed. U.S. (1978). 1173, 1178-79 representations are that we contemporaneous
“There certain tolerate, showing decided not to even in the absence a anyone prejudiced by existing competing conflict. Where the *** odds, are without directly presume interests at we ineffectiveness Sims, inquiry lawyer performed.” People into a v. actually how (2001). App. 397, 322 3d interest per Ill. 413 Where no se conflict of exists, the an defendant must show existence of actual conflict (1999), Becerril, prejudice. App. 518, v. Ill. 3d 525 People actual 307 (1988). 1016, an citing Taylor, App. v. 165 Ill. 1021 Where People 3d exists, required prove actual conflict of interest is not App. Becerril, the conflict contributed to his 307 Ill. conviction. “ (1988). 525, 1, 18 de citing ‘[A] 3d at v. 123 Ill. 2d People Spreitzer, actually the ade fendant who shows that a conflict affected representation prejudice need in order quacy of his not demonstrate ” Sullivan, Spreitzer, 19, quoting Cuyler relief.’ 123 Ill. 2d v. obtain at 347, 1708, 2d 100 S. 1719 349-50, 64 L. Ed. Ct. 446 (1980). detecting per se provided guidance
The court has 123 Sims, citing Spreitzer, 322 Ill. 3d at App. conflicts of interest. entity, to a person Ill. 2d at 16. “Where defense counsel has a tie from including commitments,’ which would benefit previous his ‘own defendant, se arises.” per an for the a unfavorable verdict (2000); Ill. Woidtke, 123 App. Spreitzer, v. Ill. 3d 409 People 313 preju required at “In such the defendant is not to show 2d deemed representation; representation dice as a result of the 120 Sims, App.
ineffective as result of the inherent conflict. Ill. 322 3d 413, citing Ill. 2d at Spreitzer, 123 14-16. represented witness, Where defense has per State se “ if professional
conflict of interest exists ‘the relationship between and the is contemporaneous repre witness with counsel’s ” Coleman, sentation of the defendant.’ 301 Ill. 3d at App. quot ing Free, People (1986); 2d v. Ill. see v. Robin son, (1979); Strohl, 79 Ill. 3d “ ‘ one, se “is a rigid designed conflict rule alone prevent practitioner conduct, the dishonest from fraudulent but as well to preclude practitioner the honest putting position from in a himself ’ ” where required conflicting choose between duties.” Coleman, Lawson, quoting People 3d at Ill. 2d *6 (1914). 187, (1994), Gerold, 448, 210 quoting People v. 265 Ill. 477 things contemporaneous Whether two are logically must be determined upon unique given based the and facts circumstances of the situation. bar,
In the case at the trial court concluded a per that se conflict of interest agree. existed. We The trial court based this conclusion the fact that firm previously represented defense counsel’s Mon tez, the concerning confidential informant the alleged facts in this case. The placed great trial court significance understanding on its that there similar competing were interests at In so the ruling, stake. trial court commented as follows: *** contemporaneously “[I]t is clear that the firm represented a
potential State and proceedings involving witness Defendants in the of knowledge facts the instant case. It well is established imputed of one member of a law firm is to other members of the firm. Conflictsof interest for one member extend to all members Dace, 891, a 153 3d firm. v. Ill. 896.
It firm previouslyrepresented follows since defense counsel’s concerning very alleged confidential informant Montez the facts case, per People Flores, 66, this a v. 128 se conflict exists. Ill. 2d Thus, the must Court examine whether the defendants have been made the knowingly aware of conflict and are able to waive right their to a conflict-freecounsel.
* * * the competing Under circumstances of the instant similar longer firm Although interests are at stake. Defense no counsel’s Montez, represents representation State witness the firm’s included very I involving place matters facts at issue the case bar. significance great on that. * * *
Therefore, greatly this court concerned the Defense counsel’s
121
limited in
subliminally restricted or
might be
examination
cross
describing
just to so state.
than
accurately
of more
ways incapable
jury becoming aware of
concerned with
This court
likewise
previously represented
firm
that Defense counsel’s
the fact
jurors
impropriety, should the
appearance
State witness and
a
representation of State
prior
become aware of Defense counsel’s
directly relating
the case at bar.
witness matters
reflection,
reasons,
all of
and after serious
For
those
consideration,
appropriate
has
that it is
Court
determined
***
Defendants’ at-
grant
Disqualify
Motion to
State’s
granted.
defense counsel is
torney
disqualify
in this case. Motion
of the per
of the existence
We
to the trial court on the issue
defer
“
***
recognize
presumption
a
‘[t]he
se conflict. While
Court must
“
”
choice,’
‘may
be overcome
petitioner’s
favor of
showing
conflict but
only by
a demonstration
actual
and circum
conflict,
of the facts
serious
evaluation
primarily
each case
this standard must be left
stances of
under
” Holmes,
223,
141 Ill. 2d at
judgment
informed
of the trial court.’
States,
153, 164,
2d
quoting
v.
486
L. Ed.
Wheat United
100
S. Ct.
1700
108
interest,
next
se
must
address whether the
We
identified,
knowingly
once
has
A defendant
been waived.
Johnson,
interest.
v.
intelligently
alleged
waive an
conflict of
(2001),
Ill. 2d
citing People
Fife,
(7th
(1979);
Kladouris,
424-25
United
964 F.2d
Cir.
States
(7th
1990).
1992);
States,
Rosenwald v. United
F.2d
Cir.
to counsel of
“[A] defendant who wishes
exercise
necessarily
choice
despite
conflict of
must
waive
“[A]
effective
of counsel.”
2d at 222.
assistance
pass
court must
on the issue of whether to allow waiver of conflict of
*7
after
trial has taken
hindsight
‘not with the wisdom
place,
pretrial
relationships
but in the murkier
context when
between
” Holmes,
parties
glass,
141 Ill. 2d at
through
darkly.’
are seen
a
Wheat,
at
L. Ed. 2d at
108 S. Ct. at
quoting
a trial
‘must
al
“[T]he
1699.
Wheat Court concluded that
court
be
only
where an
refusing
lowed substantial
latitude
waivers’ not
‘in
where a
exists,
actual conflict
the more common cases
but
may
burgeon
an
for conflict exists which
or
into
” Holmes,
actual
141 Ill. 2d at
progresses.’
conflict as
trial
S.
Wheat,
Ed. 2d at
Ct. at
quoting
“It is adequately well settled that trial courts must inform defendants of a significance conflict’s before of such a waiver accepted. can actually A defendant must understand how attorney’s representation, conflict could affect his before his knowingly (Emphasis conflict-free can be waived.” Coleman, original.) 301, citing Lawson, Ill. 3d at end, at 218. To that the trial court following held the discussion with Ortega the record: *** “THE Ortega. Sir, COURT: start Mr. Let’s with how old are you?
MR. ORTEGA: 27 go
THE you COURT: How far did in school?
MR. high ORTEGA: Graduated school.
[*] * * you THE any exposure, COURT: Have ever had prior to this legal system? with the MR. ORTEGA: No. legal training
THE I you knowledge, COURT: So have no am correct?
MR. ORTEGA: No. THE is your understanding you COURT: What have what — present hearings, been for all of these am I correct?
MR. ORTEGA: Yes.
THE you you COURT: Do know what a conflict Do know is? lawyers talking these what are about? understanding they
MR. ORTEGA: Yes. I’m saying. what are your THE understanding? COURT: What Well, problems MR. ORTEGA: that it could be some between me Novelle, know, becoming, you lawyer, and Natal Mr. or we could during us or during discussion between trial the sentence that we were have.
THE firm you previ- COURT: Do understand Mr. Novelle’s law ously represented an individual to be a going who State’s witness against you in this case?
MR. ORTEGA: Yes.
THE problem You COURT: don’t have a with that?
MR. ORTEGA: No.” interchange are that this court and We aware between trial lengthy took after place discussions between the Robert Novelle which were held on the record front lengthy himself. These discussions are too and involved to chronicle here; Ortega’s say they support suffice it to the conclusion that choice knowledge potential consequences. made with spite Ortega, opting peril We find that retain counsel *8 of and-intelligent waiver interest, knowing of made in this case. Novelle representation by potentially conflicted disregards Ortega’s professed to have held otherwise For the trial court of to the conflict it was mistake waive of Whether choice counsel. as fullness time something clear of is that will become an Ortega, it was by In of the clear waiver progresses. light perspective, court, depending trial on one’s abuse of discretion save making try choice or to stop him from constitutional either him from himself. petition by a posttrial
This case
limited to these facts. It is not
is
representation by counsel under Strick-
claiming inadequate
Ed. 2d
CONCLUSION of re- light foregoing, judgment In the trial court proceedings further consistent versed the cause remanded for opinion. with this reversed;
Judgment cause remanded.
CAMPBELL, EJ., concurs. QUINN, dissenting:
JUSTICE
decision, the
reversing
I dissent. In
the trial court’s well-reasoned
holding “disregards Ortega’s
majority
find
trial court’s
In
professed
support
3d at 123.
choice of counsel.”
pronouncement,
rely
entirely upon
almost
cases which
majority
This approach
addressed claims
ineffective assistance
counsel.
rejected by
our
court. In
squarely
supreme
has been
on the
(1990),
here,
appealed
141 Ill. 2d
as
the defendant
claim
rejecting
In
defendant’s
basis of
of denial of counsel of choice.
claim,
it is
that different
“[W]e
our
court held:
think
obvious
and to
ineffective assistance
apply
standards
review
to claims of
in ineffec
of choice. Because the standards
claims
denial
bar,
turn
we now
inapplicable
tive assistance claims are
case
to discussions of the standard that does
apply
defendant’s claims.”
fendant a in substitution of counsel order to be the represented same who in two other defendants the same drug-conspiracy hearing, case. After a the court denied request substitution, stating an irreconcilable conflict of inter- est existed could not be Ap- waived. The Ninth Circuit Court of affirmed, peals appealed. and the defendant Supreme The Court also affirmed, holding: recognize “The District in presumption Court must a of favor choice,
petitioner’s
presumption
counsel of
but that
may be
only by
overcome not
a
by
demonstration
actual
a
conflict but
showing
potential
of a serious
for conflict. The evaluation of the
and
facts
circumstances of each case under this
standard must
primarily
judgment
Wheat,
left
to the
informed
the trial court.”
In
supreme
our
court observed:
trial
pass
“[A]
court must
on the issue of
whether
allow waiver
hindsight
of a conflict of interest
with the
‘not
wisdom of
after the
trial has taken place,
pretrial
but in the murkier
context when
relationships
parties
through
glass, darkly.’
between
are seen
a
(486
1699).
U.S. at
In
the
charged
defendant was
in 1982 with an armed rob-
bery
place
that had taken
in
The
filed
1980.
State
a
to remove
motion
Holt,
attorney,
Holmes’
a
Leo
from
case because of
conflict of
1984, hearing
interest. In
determined
was conducted at which it was
represented
that Holt
primary
State’s
witness and defendant’s
codefendant,
Williams,
an
robbery charge
Ulrich
armed
in 1972
Attorney
and
a stolen car
Holt testified at the
case
hearing
he
had conversations with Williams some time in the
previous
years
five
those conversations
received information
by
attorney-client privilege.
that was covered
supreme
The
court affirmed
appellate
court
court
granting the State’s motion to remove Holt. “The
also
has
State
represented by
to have defendant
who
counsel
would not cross
cross-examining a critical State witness
propriety
bounds
re
prior attorney-client
of a
subject
regarding matters which were
“[A]s
The court continued:
Holmes,
into
probability
account the
had the court
defendant’s
convicted,
of conflict-free counsel and had defendant then been
waiver
claiming
appealed,
defendant would have
ineffective assistance of
based on the conflict
interest. The
acknowledged
appearance
the trial court’s concern with
jurors
aware,
they undoubtedly
as
impropriety, “should
become
of Williams.
would,
representation”
The facts in the instant case much more the refusing to than did facts in accept trial court’s defendant’s waiver the pointed majority, and As out the Donald Novelle by Wheat Holmes. represented witness, Montez, primary the State’s at the time Montez ap from now “organizing purchase cocaine from peals.” allegedly 329 Ill. 3d Novelle learned App. at Donald client, Eugenio Natal, in Montez that firm’s was involved this his Novelle purchase charged. cocaine but he would not be Donald Metropolitan Enforce represented compel in efforts to Montez his consideration, agreement give Montez Group ment abide their charges, help in on for his in pending the form of a lesser sentence represen this fees to firm for their case. Montez still owes the Novelle in this matter. told the trial court that could tation Donald Novelle Novelle, brother, Robert who freely discuss Montez’ cases with his represented Ortega. and Natal Flores, (1989), Holmes, Ill. 2d 85 People
In addition to in v. 128 (2000), Woidtke, 399, 411 the courts held People App. v. 313 Ill. 3d of interest that when courts review claims of conflict based (Flores) or a different prior representation prosecution of a witness acquired (Woidtke), suspect they should consider whether the prior client. privileged information from this court (1979), our People Fife, In v. 76 Ill. of a member law found that there is conflict of interest when one firm represents criminal defendant another member of the firm General,” “has an affiliation Attorney with the even if that affiliation only involves workmen’s compensation matters. Consequently, due Donald representation Montez, Novelle’s all members Novelle firm should be disqualified representing from Ortega and Natal. majority
The
may
“[a]
hold
defendant
knowingly and intel
ligently
alleged
waive an
App.
conflict
interest.” 329 Ill.
3d at 121.
true,
While this
conflict
case
al
this
is not
leged, it
se
per
majority
and actual. The
People
Johnson,
cite
v.
(2001),
People
Fife,
(1979),
3d 117
v.
Like the holding Fife, holding provide sup Sims does not port for position. majority’s charged defendant in Sims was murdering with two of her children. Her trial attorney represented also husband, her who suspect was also the case. The defendant had police told the and the trial court that her nothing husband do spite this, appellate with murders. In counsel raised interest as an In rejecting argument, appellate issue. said “the interests aof defendant and of another suspect can often entirely long constant, remain compatible. As as their interests remain represent can both diverge, ***. Should their interests ever obliged representation.” counsel would be from withdraw Sims, 3d at 414. Clearly, Montez’ have interests diverged from the interests of Consequently, and Natal. an obligation Novelles had to withdraw.
I disagree finding the majority’s with that defendant know ingly representation. waived conflict-free When the trial issue, court asked your understanding?” defendant “What is of this replied:'“Well, problems that it could be some me between Novelle, becoming, you know, and Natal Mr. lawyer, we could during during discussion between us the trial or the sentence *11 that we gibberish way were to have.” This is no that de shows actually fendant at understood “how the conflict could affect his torney’s Coleman, representation” by People as Ill. required App. 3d Holmes,
In supreme our noted that “the Seventh Circuit rule, Appeals rejected disqualification Court of has se even where exists, in balancing O’Malley, an actual favor of a test. majority say 228. F.2d at 790.” 141 Ill. 2d at of a conflict spite peril to retain counsel “opting is at his 122-23) (329 it mistake and “Whether was 3d at Ill. of interest” clear something that will become is conflict of to waive the 123). (329 3d at progresses” of time as the trial the fullness is allow this court peril; at his retain Novelle opting to a fair right of the State’s peril at the Ortega to retain Novelle ing given to information privileged trial, nondisclosure Montez’ precedent rely upon the clear attorney, and the trial court’s of time the fullness not need to await court. One does of our being made. to see that mistake ILLINOIS, Plaintiff-Appellee, v. OF THE STATE OF
THE PEOPLE Defendant-Appellant. ALEXANDERCHAMP (6th Division) No. 1 — 00—0950 First District Opinion filed March