People v. Williams

ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATE OF al., Defendants-Appellants. et EMMALINE WILLIAMS 1—87—0060, (5th Division) cons. First District Nos. 1—87—0187 27, 1989. Rehearing June 1989. January denied Opinion filed PINCHAM, J., dissenting. Ravitz,

Gary of Chicago, appellant for Emmaline Williams. Bourgeois, Null, Ware, Jones, Bourgeois Adam of of & and Mitchell Grenard, & Chicago, Ware both of appellant Roy Williams. Daley, Attorney, Chicago Fryklund

Richard M. State’s (Inge and Brown, Czech, Attorneys, Quinlivan Michael Assistant State’s and Marie Special counsel), Attorney, People. Assistant State’s for the

PRESIDING JUSTICE MURRAY delivered the of the opinion court: trial, a at

Following joint bench which defendants were repre- sented same attorney, Williams Roy (defendant) was convicted term, a rape and sentenced to 19-year and his wife Emmaline Wil- liams (codefendant) was convicted of indecent liberties with a child and to 12-year sentenced a term. appeals these consolidated defendant and joint codefendant contend that their representation was due to their improper interest; counsel’s conflict of that counsel was incompetent; and that evidence improper hearsay presented was at trial. Codefendant an argument concerning raises additional of the her sufficiency evidence to sustain conviction. 13 when complainant years adopted old 1982 she was and

by defendant codefendant. In 1984 she was with them living several other children in a in an Chicago house. Complainant slept up- stairs bedroom while defendant and had a on codefendant bedroom the first floor of the residence.

Complainant 9 a p.m. April testified about on date in complainant was in her bedroom her when codefendant called did, asked her come downstairs. codefendant complainant When asked to do her a into the first- complainant favor as went they both floor bedroom. There on the complainant lying naked saw bed. Codefendant then exit from bed- complainant’s obstructed room, onto complainant’s complainant removed forced clothes and bed, began where defendant as complainant molest code- sexually fendant lying disrobed. At one on bed be- point complainant tween on eventually got defendant and top Defendant codefendant. complainant and codefendant raped complainant’s her as held one hands telling complainant that she loved her. Codefendant then sexu- ally complainant molested in the bedroom and when complainant both went thereafter. shortly into bathroom told the

Complainant 19-year-old daughter accused’s occur- rence the latter did her. Two after the incident but not believe weeks letter, trial, she to her presented addressed which was former occurrence, foster did not mail it. In explaining mother but she parents’ June her home after code- complainant adoptive left her, returned to the fendant beat and tried molest and she sexually mother, home She then police. gave of her former foster who notified police the letter. officer Lux the matter and on

Chicago police investigated Joseph at her of June he arrested home evening codefendant her codefendant upon serving with search warrant. After he advised Miranda of her rights, she waived those and told Officer Lux rights that she was when defendant had consensual intercourse with present he too complainant. defendant, Lux then arrested waived Officer Miranda his that codefendant had rights. Defendant told Officer Lux brought lying their bedroom while he was naked complainant clothes, her complainant instructed to remove bed. Codefendant so then on the her arms defend- complainant by both held down bed her. forcibly ant have sexual with Thereafter both could intercourse The of this was reduced to complainant. fondled substance statement signed it. writing and then codefendant with defendant’s state- police

The confronted must oc- ment. told the officer that those events have Codefendant curred if defendant said that did. they by denied that the events recounted

Codefendant testified. She incriminating oral complainant making any occurred. She also denied to police. admissions relations with com- having

Defendant testified. He denied sexual knew the of the written plainant, and he denied that he contents told him First, that Lux that signed. statement he he claimed Officer statement, that him a no one would believe codefendant made written he receive a substantial a man and that would because he was black confessed, him that he re- However, if he Lux told could sentence. him Attorney presented Then State’s ceive an assistant probation. account, did read or know its con- which defendant not with written nothing oc- he told latter that had signed, although tent he before complainant. curred with representation and codefendant contend

Both defendant their bench during joint improper same counsel because a conflict of existed. claims that this conflict interest Codefendant without was manifested the introduction defendant’s statement restriction, though her even defend- implicated repudiated by representation ant. She also maintains that of their she joint because was not without informa- fully using able to cross-examine defendant acquired tion in counsel’s to defendant. professional responsibility claims that to trial the could not have known prior Defendant court however, asserts, that a conflict existed codefendant. with Defendant that when codefendant’s statement him in the offense was implicating introduced, evident, yet a conflict was the trial did inquire court not into the conflict or admonish both accused that had a they right be represented by loyalties. counsel with undivided

In People v. Jones 121 Ill. 2d the Illi N.E.2d nois Supreme Court considered in consolidated “whether appeals joint representation of defendants establishes sixth amendment claim of denial the effective assistance of counsel when it alleged that the admission of and inconsistent inculpatory pretrial statements from each defendant created a (121 conflict interest.” 24.) Ill. 2d at neither in Jones, here, consolidated case as did defense counsel indi cate trial court that any conflict potential exist. One of might the consolidated cases involved the appeal defendant Harris who with along a codefendant Jones was tried for jointly armed robbery. Both defendant and codefendant made statements; pretrial Jones’ statement implicated Harris and exculpated himself while Harris’ statement exculpated both. At trial making Jones denied pretrial his statement and adopted Harris’ version of events. The supreme court noted that Jones had his earlier repudiated inculpatory statement and asserted a claim consistent with position stating, Harris’ “Counsel for had Harris no reason to cross-examine Jones when he testified favor ably (121 to Harris.” 31.) Ill. at Harris’ conviction was thus af case, firmed. In the second consolidated defendants Mosley and Ross jointly represented were trial and both had made pretrial state both inculpating ments in murder and armed robbery. Mosley repudi coerced, ated his statement at trial as but not testify. Ross did court found no supreme hostility existed between defendants be repudiated his Mosley cause confession and Ross to im did peach Mosley because no amount of pro could impeachment have a more favorable result. Ill. (121 However, duced 33.) 2d at since Ross did and his testify pretrial not confession implicated Mosley, su preme court concluded that his jury unrepu: confession went to the unimpeached, thereby diated violating Mosley’s right to confron- no tation. declined to there was that testify, way Ross “[W]hen also deal Mosley’s attorney represented effectively could [who Ross] 34.) with the Ill. 2d at implicating (121 supreme statement.” court affirmed a trial. granted Mosley then Ross’ conviction but new

We believe that Jones in the con negates present the claims inter solidated that their counsel under a conflict of appeals operated any incriminating state making est. Codefendant testified and denied ment, not and defendant claimed that his written admission was made true. we not believe that intelligently Consequently, or do claim that their defendant or codefendant can establish a meritorious each not cross-exam representation improper was because could joint respective pretrial ine the other as to the statements. There no joint representation of interest in the of trial court conflict to sua sponte required advise defendant codefendant. that they claims were Both and codefendant advance of trial Defendant contends that denied effective assistance counsel. question failed to (1) his counsel was ineffective because counsel confession; failed to (2) prepare adequately voluntariness of his State, by trial not materials tendered by reviewing discovery mother; (3) to complainant the letter written her foster specifically, to failed move for a sever- hearsay; (4) failed to the letter as to object him; (5) implicating ance made a statement when codefendant to interview by failing failed to for trial witnesses prepare adequately as an inveterate liar. Codefendant complainant who could describe on their counsel’s failure makes similar claims of ineffectiveness based severance, statements, to seek to pretrial suppress to file motions letter, to tes- object of certain object complainant’s introduction State, or to make inves- any from the witnesses timony elicited ques- records or call into complainant’s medical and school tigations of tion her veracity. defendant must establish ineffectiveness trial counsel

To standard rea objective conduct fell below an show that counsel’s that defendant norms and professional sonableness under prevailing de that he was performance was so counsel’s deficient prejudiced by 155, v. (People Harris 123 Ill. (1988), nied a fair trial. of the claimed many 335.) In the case we believe present N.E.2d First, a severance questions strategy. merely deficiencies were (People defenses. showing antagonistic granted upon could be pre As 335.) we 526 N.E.2d Harris 123 Ill. 2d both ac antagonistic; case noted, in this were defenses viously Moreover, ever occurred. sexual incident denied cused statements each accused’s suppress motions pretrial questions

603 well have been a of trial See authorities set may question strategy. People 981, 987-88, forth in v. Fernandez 162 Ill. 3d (1987), App. 516 N.E.2d 366.

There is in Lux’ trial nothing testimony suggest Officer codefendant, any suppress basis to the statements of defendant or and the only question credibility could have been raised was the of the witnesses. Counsel would may thought well have such motions 408, have been futile. v. Hall 114 Ill. 2d 499 (People (1986), 1335; 564, 574, N.E.2d v. 113 447 People (1983), App. Hancock Ill. 3d Moreover, N.E.2d there 994.) possibility was had defendant and codefendant testified in a pretrial setting something might have occurred that would have used to them at impeach (see been Peo ple Sturgis (1974), v. 58 Ill. 545) 2d 317 N.E.2d particularly the case of codefendant who denied such making any statement.

Moreover, we fail to discern lack of trial any preparation de- by fense counsel that defendant prejudiced and codefendant. The case quite was and direct. simple The case involved testi- complainant’s mony and Officer Lux’ testimony about codefendant’s oral statements oral defendant’s and written opposed statements as to the denials of defendant and codefendant at trial of these matters. do not be- We lieve that conduct any by defense counsel which is not called into question on affected the appeal outcome of their trial. Consequently, we do not believe that ineffective assistance of counsel has been es- tablished.

Defendant and codefendant argue reversible error oc complainant’s curred when undelivered letter was allowed into evi dence detailing crimes with which charged. were This letter they merely cumulative nature to complainant’s That tes testimony. timony corroborated as to his oral and written ad missions and significant corroborated in as to part codefendant Thus, latter’s oral to police. admissions even if the admission letter can questioned, be defendant and codefendant cannot claim prejudice. People (1986), See v. Silvertri 980, 987, Ill. 3d App. 500 N.E.2d 456. urges

Codefendant that she was not proved guilty beyond a light reasonable doubt. Viewed most favorable to the prosecu tion, the evidence does not compel contrary People result. v. Bedony (1988), 613, 618, 173 Ill. App. 527 N.E.2d 916.

In a footnote contained in her brief codefendant makes an abridged reference to the length of her sentence and notes that this court can modify However, an inappropriate sentence. do not we be- lieve that an adequate ground exists for this type People action. 492-93, 431 N.E.2d 334. Ill. 2d

La Pointe the circuit court are affirmed. Accordingly, judgments affirmed. Judgments J.,

COCCIA, concurs. J.,

PINCHAM, dissenting: ignore to distort or urge may be insatiable I dissent. However in order to con- rights legal principles constitutional fundamental crime, urge, this committing despicable one who is accused of vict the rules of suppressed completely must be present, whenever of the record A examination cursory mere always prevail. law must defendants, Emmaline the Wil- reveals that clearly the case at bar State their Federal and Williams, each denied were Roy liams and their at- by of counsel the effective assistance rights constitutional defendants, of the two disloyal representation simultaneous torney’s inconsistent, conflicting and adverse, discordant antagonistic, had who in- concerns, attorney’s grossly their by and also interests and rights, during and before performance, blatantly inadequate and competent trial. joint the defendants’

A TO COUNSEL THE DEFENDANTS’ RIGHT States, the of United amendment to the Constitution The sixth of the four clause process the States the due binding upon by made 335, 9 L. 372 U.S. Wainwright (1961), (Gideon teenth amendment that, prosecu “In all criminal 799, 792), provides 83 S. Ct. Ed. 2d *** the Assistance of to have tions, right the enjoy the accused shall I, Article section Const., VI.) amend. (U.S. for his defence.” Counsel that, similarly provides of Illinois 8, of the State of the Constitution right appear the shall have the accused “In criminal prosecutions, I, 1970, art. ***.” Ill. Const. by §8. person defend counsel v. Morrison held in Kimmelman The Court Supreme 2574, 2583: 305, 318, 106 S. Ct. U.S. 91 L. Ed. criminal of right ais fundamental to counsel

“The right legitimacy, fairness, thus defendants; assures it adversary process.” our further held: court

The Kimmelman fun- question beyond to counsel is accused anof right “The with charged one (‘The right right. damental [Citations.] may crime to counsel not be deemed fundamental and essential countries, ours’). to fair trials some but it is in Without coun sel the to a fair trial right itself would be little consequence [citations], through for it is counsel that the accused secures his other rights. (‘Of rights all the that an accused per [Citations] has, son the right represented to be counsel is far the by by most pervasive, affects his to assert other ability any rights he may have’). guarantee counsel, constitutional however, ‘cannot be satisfied mere formal appointment,’ [ci ‘An accused is entitled to be assisted an attorney, tation]. whether retained or appointed, who the role plays necessary ensure that the trial words, fair.’ In other [Citation.] right to counsel right is the to effective assistance of counsel.” 320-21,106 477 U.S. at 91 L. Ed. 2d at S. Ct. at 2584. The precious right constitutional to the effective assistance counsel is governed or influenced by gravamen of the offense with which the accused stands Nor is charged. this consti- invaluable guarantee tutional in any way dependent upon innocence or guilt accused, of the or quantity quality State’s evidence against accused, innocence, evidence of the accused’s or the potential success or failure of the accused’s defense. In Kimmelman, the Su- preme Court additionally held: “While we recognized the ‘premise of our adversary ***

system of justice criminal that partisan advocacy will best promote ultimate objective that the be guilty convicted and the innocent free’ go underlies and gives mean [citations] ing to the right to effective assistance [citation], we have never right intimated the to counsel is conditioned upon actual innocence. The constitutional rights of criminal defendants are granted to the innocent and guilty the alike. we Consequently, decline to hold either that guarantee the of effective assistance of belongs counsel solely to the innocent or that it attaches only to matters affecting the determination of guilt.” actual 379-80, at 322, 106 U.S. 91 L. Ed. 2d at S. Ct. at 2585-86. Moreover, under the accused’s criminally constitutional guarantee counsel, the effective assistance of no distinction permitted is be- tween an accused’s counsel an court-appointed privately accused’s retained counsel. Mr. recently Justice Stevens for stated the Supreme in McCoy v. Court Appeals Court 429, 444, 486 U.S. 100 L. Ed. of 440, 457, 108 S. 1895,1905; Ct.

“Every advocate has essentially the same professional responsi- bility whether he or she accepted a retainer from a paying cli- *** In and eval- preparing from a court. appointment

ent or as case, client as to the advising prospects and in the uating intent serve the client’s success, consistently for counsel must ability. of his or her best * * * or her client provide precisely The must still his attorney from paid could obtain that an affluent defendant services a of of the record and discussion thorough counsel—a review searching that review. In revealed strongest arguments available, must be strongest arguments for the ambiguous legal ques- resolve all doubts and zealous and must of his or her client.” tions in favor to the ef- guarantee constitutional their Federal and State

Under Emmaline counsel, Roy defendants Williams fective assistance not hobbled to dedicated counsel who was were each entitled Williams them his unfettered of each of representation in his and who was learned, sacred, most them. Civilization’s between loyalties divided times, admon- ago, all centuries advocate of dedicated and staunchest ished: hate the masters; for either he will serve two

“No one can despise one and other, he will hold to the and love the or one (Matthew 6:24.) the other.” to his disci- Jesus; the admonition

The the Christ advocate was Mount; the admoni- His Sermon on during and the multitude ples of all law prestigious dynamic, in the most accurate tion is cited 24th and the Bible, Matthew, the 6th books, chapter Holy The verse. Responsibility Code of Professional

Canon 5 of Model demands: American Bar Association exer- lawyer should be professional judgment

“5—1 The his law, benefit cised, solely within the bounds Nei- and loyalties. influences free of compromising client and clients, nor of other interests, interests ther his personal his to dilute permitted be of third should persons the desires to his client. loyalty

* * ^[*] judg- professional independence Maintaining 5—14 or continua- acceptance his precludes lawyer ment of a required his judgment affect adversely that will tion of employment arises problem This to a client. loyalty his of or dilute behalf more clients or two represent asked lawyer whenever con- be interests interests, such whether who may different

607 inconsistent, diverse, or otherwise discordant. flicting, or to continue 5—15 If is undertake lawyer requested differing of clients representation multiple having potentially his interests, carefully judg- he must that weigh possibility if accepts ment be or his divided he or impaired loyalty may all employment. against He should resolve doubts continues A should never propriety representation. lawyer rep- differing interests; clients litigation resent in with and multiple there he in justified repre- are few situations in would be litigation clients senting differing in with multiple potentially If a such and the inter- lawyer employment interests. accepted differing, ests did he would have withdraw actually become from of hardship with likelihood on the employment resulting clients; for this is he refuse the preferable and reason that *** employment initially. * * *

5—17 Typically recurring involving situations potentially in differing interests are those which a is asked to lawyer rep- resent in a criminal case ***. Whether a lawyer co-defendants can and fairly adequately protect multiple interests of cli- ents in these and depends similar situations an of upon analysis each case. his upon judg- chance adverse effect [T]he ment is not Model Code of unlikely.” (Emphasis added.) Profes- (1979). sional Canon Responsibility 5 Strickland 668, 692, Washington (1984), 466 80 U.S. L. Ed. 674, 696, 2d 2052, 2067, 104 S. Ct. the Supreme Court stated that its v. Sullivan in Cuyler holding 335, 340-50, U.S. L. Ed. 333, 341-48, 1713-19, 100 S. Ct. is prejudice was that pre- sumed when an counsel burdened actual conflict interest from his joint defendants, representation those circum- multiple stances counsel breaches the the most duty loyalty, perhaps basic of the Strickland court concluded that Moreover, counsel’s duties. it is difficult precise measure effect the defense of representa- tion interests, corrupted conflicting given obligation of counsel to avoid conflicts of interest and ability trial courts to make early inquiry give certain situations likely to rise to con- flicts, it is justice reasonable for the criminal system maintain a fairly rigid rule of presumed prejudice conflicts of interests.

From the totality of bar, the circumstances the case at applica- tion of these foregoing legal and constitutional principles and direc- tives to dual, the defendants’ attorney’s simultaneous representation of them, adverse, hostile, with their inconsistent conflicting interests before incompetent performance concerns, and his patently trial, only pre- clearly establishes joint the defendants’ during estab- indeed, affirmatively and positively of but sumption prejudice, and their Federal denied flagrantly defendants were lishes that the of counsel. The assistance rights to the effective State constitutional en- trial, are they to a new at which entitled defendants are therefore counsel. represented by competent titled to be B INTERESTS CONFLICTING THE DEFENDANTS’ AND PERFORMANCE ATTORNEY’S INCOMPETENT THE DEFENDANTS’ I CHARGES, THE OF THE OF THE NATURE BECAUSE TO EACH THE DEFENDANTS OF RELATIONSHIP VICTIM, THE STATE’S THE ALLEGED OTHER AND TO THE EVIDENCE AGAINST INTERWOVEN INTRICATELY THE DEFENDANTS’ CONFLICTING AND DEFENDANTS INTERESTS, ONE ATTORNEY IT IMPOSSIBLE FOR WAS BOTH LOYALLY REPRESENT AND TO COMPETENTLY THEIR JOINT TRIAL. DEFENDANTS AT Williams, hus were Emmaline defendants, and Roy The Williams of sex the commission charged with jointly were They and wife. band Thus, ingre an inherent daughter. minor adopted their upon offenses and relationship the husband-wife unique case was of the instant dient and wife of the husband possibility and also at least confidentiality, of characteristic distinctive An additional communications. privileged ramifica all the attendant relationship, the parent-child the case was privileged of likewise, parent-child thereof, and, possibility tions 854, 474 N.Y.S.2d 123 Misc. 2d Ryan In re (1984), communications. v. Harrell 1298; People Supp. 553 F. 1983), Nev. Agosto In re 931; (D. Fitzgerald (1979), People 501; 21, 450 N.Y.S.2d 87 A.D.2d (1982), A&M (1978), Application In re 309; 712, 422 N.Y.S.2d Misc. 2d 101 of Testimonial Annotation, 375, 377; 426, 428, 403 N.Y.S.2d 61 A.D.2d Relatives Other Between Communications For Privilege Confidential Note, Cases, 6 A.L.R.4th (1981); 544 Husband & Than Wife—State Privilege, Testimonial a Parent-Child Recognition Questioning of Ill. v. Kirkman App. 170 People (1980); L. Rev. 142 45 Alb. J., dissenting). 106, 112-25 (Pinchara,

609 of very nature sex offenses the defendants alleged daughter upon adopted their should have indicated counsel con- flict and the risks of his and ineffectiveness disloyalty representing joint both defendants at their trial. Count I of the indictment alleged defendants, Williams, that Roy Williams and Emmaline or 1, 1984, Illinois, about in Cook April County, committed the offense of rape, in that of the “had they, age years upwards, and sexual A.W., a intercourse with child sixteen Count age years.” under II alleged said defendants on said date and at said commit- place child, ted the offense of indecent with a in that they, liberties age years of 17 act of upwards, an sexual intercourse “performed A.W., with a child of 16 age years.” charged under Count III the defendants committed the offense of indecent liberties with a child, in that “with they, age years upwards, the in- desires, tent to arouse satisfy their sexual lewdly fondled and A.W., age touched under Finally, child count years.” IV accused the defendants with committing the offense of unlawful re- straint, in that they detained her in a by holding A.W. bedroom. defendants,

Thus, Williams, the Roy and Emmaline were Williams charged in four jointly all counts. They were husband and wife and were to obviously by alleged known be such their The attorney. victim in all A.W., four counts daughter, was the defendants’ adopted and likewise was known to such the obviously by be defendants’ attorney. I, Counts II and III the jointly charged defendants with the commis- sion of sex upon adopted daughter, offenses their and count IV charged them with the of commission an offense her which upon was in instrumental the the sex alleged I, of offenses counts commission II and III. accusations, sex

These the conjunction with defendants’ rela- each tionship victim, other and to the have alleged should fore- warned counsel of joint the hazards of his the hus- representation defendants, band wife and the victim particularly alleged where their minor adopted daughter. Of course each under the law was presumed control, innocent. That does presumption not how- ever, in alignment of determining proper the defense counsel or the of joint propriety by defense representation counsel in a multiple- defendant, multiple-count indictment. One defendant inmay fact have the offense, committed the alleged and quantity and quality of the State’s evidence against defendant may vary such from weak and meager Whereas, to strong overwhelming. and the other defendant may be in fact totally innocent and absolutely no knowledge of the commission of glaringly the The apparent offenses. unique fea- ture, facts, the on the at bar is that the defendants case did they have but defense to them and that was that did not one available identification, and commit the offenses. defenses mistaken alibi consent to them. Because of their re realistically were unavailable defense, stricted the dual single attorney’s representation both confronted him the conflict dilemmas in loyalty defendants with and attorney-client the and con confidential communications husband-wife communication, representa fidential in his courtroom joint as well as Moreover, tion of of the defendants to each relationship them. the negotiations other inhibited the at effectively possible plea by single the torney only on one of defendants. It would ap behalf likewise pear joint representation that his defendants husband-wife could their of his or possibly warp acceptance conflicting synonymous them exercising advice to each of their constitutional personal right tried Defense counsel’s cross-examination was jury. be curtailed his fervor in the of each defendant’s de presentation and representation fense his dual of these defendants compromised by case, In the charges, at their trial. this because of joint unusual thereto, of the defendants to only relationship defense available upon each and facts alleged unique other and victim prove charges, joint representation State relied same created attorney husband defendants counsel and wife for one impossible and' client conflicts. It was disloyalty trial, at their the at represent joint both defendants competently to do so in case at indicative of incom torney’s attempt bar is his subject selfishness. retained are to ec petency “Privately lawyers cannot on to onomic be relied alert clients pressures consequently Representation Joint Crimi Lowenthal, to conflicts of interest.” Appraisal, nal A Cases: Critical (1978). 64 Va. L. Rev.

II PRETRIAL SOUGHT NO PRETRIAL DISCOVERY. THE DEFENDANTS’ COUNSEL sought no pre The that the defendants’ counsel trial record shows entitled, the of Illi provisions trial he under discovery, which was He was 412). incompe Rule Ill. 2d R. (107 nois Court Supreme he not in The also shows that did doing. clearly tent not so record not utilize properly pretrial himself with and he did familiarize him. furnished He was material which the State voluntarily discovery He file a mo pretrial in to do so. did not incompetent failing likewise ap- is the record on tion for No such motion contained discovery. record, appeal of orders in the The trial clerk’s memorandum peal. halfsheet, reflect that to as does not commonly referred or that an order discovery defendants’ filed a motion pretrial counsel was furnish counsel with directing entered State to defendants’ pretrial discovery.

Ill A THE DEFENDANTS’ DID MAKE A ATTORNEY NOT MERITORIOUS TO SUPPRESS DEFENDANT MOTION ROY WILLIAMS’ STATEMENT. defendant, Williams, The State gave contended that a Roy pre- written, trial signed Chicago statement to officer Lux and As- police Walsh, sistant State’s Attorney in which he admitted Jerry and re- lated his and codefendant Emmaline Williams’ in the participation commission alleged trial, Before offenses. the State furnished defendants’ attorney with a Roy defendant Williams’ state- copy ment, as pretrial discovery material. The defendants’ attorney made no attempt statement, this suppress the trial although testimony clearly established there valid making was a basis for such a sup- pression motion. More on the importantly, basis of record before us, the trial testimony also that Roy established Williams’ statement should and would been had suppressed suppression motion been made. The defendants’ was in failing to incompetent make a motion to suppress defendant Roy Williams’statement. assertion “the majority’s questions motions to pretrial suppress each accused’s well may question statements have been trial Ill. strategy” (182 602-03) is baseless. App. completely There is no valid trial strategy pursuing a meritorious motion to suppress statement, and, a defendant’s if incriminating it was defendant’s so, counsel’s trial not to strategy manifestly do he in competent.

Additionally, majority’s following conjectures: (1) “[tjhere nothing Lux’ testimony sug- Officer gest any basis suppress statements of [Roy Williams]”;

(2) only question “the could raised have been credibility witnesses”;

(3) thought well have motions may such would “[c]ounsel futile”; have been (4) possibility [Roy “there was the that had defendant Wil pretrial setting something might testified in a have

liams] to at trial” impeach occurred that would have been used [him] (182 App. 603) Ill. 3d at failure to have

are not valid for counsel’s justifications defendants’ sought suppression Róy of defendant Williams’ statement.

First, speculates, always pos- as the there is majority correctly that occur a defendant’s testi- sibility something might during pretrial that used to him at trial. Trial is mony impeach impeachment could be But, possibility a from a defendant’s cer- always pretrial testimony. such a is tainly, speculative possibility not an reason for acceptable defendants’ counsel’s failure to have made a meritorious motion to suppress Williams’ statement. Roy

Second, defense that every recognizes sup- counsel a motion to press a defendant’s statement “futile.” But the inculpatory may be of the effort no ef- possible futility justification making is for not fort.

Third, as the frequently, again majority correctly speculates, only of motion defendant’s statement “the hearing suppress to a of the wit question credibility which could have been raised was (182 603.) credibility nesses.” Ill. 3d at A determination of App. no vindi the witnesses is Most this can be nothing unique. assuredly, suppression cation for defendants’ counsel’s failure to have made the motion.

Fourth, for supposition aforestated and majority’s accepted the defendants’ failure to have attorney’s attempted suppress Roy assump- Williams’ statement is on the obviously premised majority’s tion on an evi- question that on the of the witnesses credibility motion, the trial of the defendant’s dentiary hearing suppression the officer and disbelieve automatically court would believe But, warranted or unwar- again, assumption, defendant. such an not to ranted, for the defendants’ acceptable is an reason not. statement. sought suppression have of Williams’ Roy in Officer Fifth, nothing assertion that is the'majority’s “[t]here the statements suppress Lux’ trial basis testimony suggest any no valid ex 603) Ill. 3d at [Roy (182 App. Williams]” to have attempted cuse for the attorney’s neglect defendants’ and trial and prosecutors, the statement Defense suppressed. lawyers, ever, in a realize if is there appellate judges rarely, anything well or trial police suppress pretrial testimony officer’s motion to defendant.” “suggests] basis to the statements any suppress [a] 182 Ill. 3d at 603. App.

Sixth, there is a significant absence in Officer Lux’ trial testimony which clearly basis, establishes the indeed the absolute necessity, suppressing Williams’ Roy statement. The majority accurately states that defendant him Roy Williams testified “that Officer Lux told codefendant (182 made written statement.” Ill. [Emmaline Williams] App. 600.) 3d at Although called trial, as a rebuttal witness at Officer Lux did not contradict or deny defendant Roy Williams’ repeated testimony that Lux codefendant, told him that his wife and Emmaline Williams, signed had a written statement. trial,

At defendant Roy behalf, Williams testified on his own on direct examination:

“Q. Well, did ask to make they you a statement?

A. Yes. Officer Lux did.

Q. you Before what, made a statement if anything, did he say you regarding the statement?

A. He said you got one strike you. You a black man and go when you before the rich white judge from the suburbs you going up the road. * * * *** He said I got signed a your statement and from wife

your daughter. might You as well this sign because if you don’t you going up road and he says if you sign this you’ll proba- bly get year’s a probation. Then after I signed this he says you understand I am not for I’m you. (Emphasis added.) A.[W.]” Defendant Roy Williams examinaron: again testified on direct

“Q. Well when he first talked to you what did [Officer Lux] he say? me,

A. He told he says you sign better I got this. a signed statement your wife, your daughter A.W. and if you don’t from sign it you going up the road. He said now if you sign this you will get probation. He said because you got a on you strike be- ing a black man judge is not going to you. believe He’s go- ing to believe that chüd.

Q. Now what was said the second meeting between you Officer Lux?

A. He repeated the same thing and then he had paper.” (Emphasis added.) cross-examination,

On defendant, Roy Williams, for the third time testified:

“He I says have a written statement. Signed Lux] [Officer statement your wife, your daughter sign and if you this from you will probably get probation because he says the rich white you. not going from the suburbs is believe judge * * * go if before you you a strike on Being you got a black man and told up He wrote this a rich white from the suburbs. judge added.) me it.” sign (Emphasis on cross-examina- examination and a third time

Twice on direct him that Lux told tion, testified that Officer Roy Williams when written, Significantly, from his signed he had a statement wife. witness, he did as a rebuttal prosecutor Lux called by Officer Lux to him. Officer not this statement the defendant attributed deny he testified on rebuttal: was asked prosecutor did Roy with Williams “Q. you spoke Officer Lux when get probation? he would signed paper tell him that if he you A. No.

* * * from the sub- judge tell him that a white Q. Did ever you story? his urbs would believe

A. No.” and the co- of Officer Lux testimony It from the trial apparent Lux did not have a writ defendant, Williams, that Officer Emmaline state her, contrary that Officer Lux’ ten, statement from signed No such statement were false. Roy ments to the defendant Williams codefendant, Lux or the of Officer testimony was established written, If such a Williams, other source. or from any Emmaline existed, it would Emmaline Williams signed by statement codefendant clear, It is how record before us. be, not, it from the apparent but us of the record before ever, segment upon foregoing that based Roy to defendant Williams Lux’ undenied representations of Officer wife, Emmaline from his Wil written, statement signed that he had a for and meritorious basis liams, codefendant, there was a valid there was a statement; certainly Roy defendant Williams’ suppressing Ill. 128 People (1984), so. v. Lee at least do attempting basis for 774, 780-81, 567. 3d 471 N.E.2d App. 543, 1030, 3d 462 N.E.2d App. 122 Ill. Payton (1984),

In v. People by identified he had been the defendant that told falsely the detective found at had been fingerprints that his burglary of a the victim to the detective admitted the defendant the crime and the scene of convicted The defendant was burglary. that he had committed reversed, holding: The court burglary. appellate the tactics used initially argues defendant appeal, “On confes- to render defendant’s such as Detective Strom were sup- should have been the confession and that involuntary, sion

615 confession was determining whether a agree. We pressed. made, whether the defend- it must be ascertained voluntarily time he confessed or whether ant’s at the will overborne compul- and without freely, voluntarily the confession was made *** of any sion or inducement sort. *** that, time made It is undisputed prior confession, him that he his Detective Strom told had falsely crime, his finger been identified the victim of the and that Supreme States prints had been found the scene. United the ac Court has stated that evidence unequivocally ‘any threatened, tricked, cused was or into a waiver cajoled [of will, fifth privilege against amendment self-incrimination] course, show that the defendant did not waive his voluntarily privilege.’ (Miranda v. Arizona 436, 476, 16 (1966), 384 U.S. 694, 725, Moreover, L. Ed. 86 the Illinois 1629.) 2d S. Ct. has that confessions or admis Supreme long recognized Court v. (People Stevens sions trick are acquired by inadmissible. *** (1957), 21, 27, 11 Ill. 33.) 2d 141 N.E.2d It seems apparent that a to the amount suspect grossly intentionally misled as strength against evidence him well be induced may to confess as a direct result of those misrepresentations. Defendant here testified that he was to ‘cut himself a trying crime, deal’ his in the by admitting involvement and we think ignores neither reality presume that nor the reliability voluntariness of a confession is tainted calcu by police conduct lated to falsely persuade the defendant that his for prospects avoiding conviction are it matters nearly hopeless. Finally, true, not that defendant’s confession here may been the truth or of the confession is irrelevant as the falsity insofar (Jackson v. Denno into its inquiry voluntariness is concerned. 368, 377, (1964), 915-16, U.S. 12 L. Ed. 2d 84 S. Ct. 1774, 1781.) Given the nature and extent of the trickery em ployed by Strom, Detective that the we conclude trial court’s finding that defendant’s confession was voluntary contrary to the manifest weight of evidence at the presented hearing on the motion to suppress.” App. Ill. 3d at 1033-34.

It is clear that defendant Roy Williams’ counsel was incompetent to make a motion People Odom failing his statement. suppress 71 Ill. 116. App. N.E.2d On the state of the record in the case at as it appears bar before us, the statement of from him in Roy Williams was obtained violation of his fifth amendment right, person which “No shall provides, be himself, nor be against a witness any criminal case be compelled ***” of law life, process or without due deprived liberty property, Const, by pro the States the due

(U.S. V) (made binding upon amend un rights and his similar amendment), cess clause fourteenth Constitution, I, pro the Illinois der sections 2 and article life, or vide, liberty deprived “No shall be respectively, person ***” shall person and “No be without due of law property process ***.” himself against criminal case to evidence compelled give attor I, defendant Williams’ (Ill. §§2, 10.) Roy art. Const. sup a motion to rights by constitutional failure to invoke said ney’s to the ef right his Roy his defendant Williams press statement denied him guaranteed of counsel and to counsel loyal fective assistance States to the Constitution of United under the sixth amendment of Illinois. I, of the State and article section of the Constitution he signed the statement testified that Roy Williams Defendant State’s Lux and Assistant by Officer preprepared predrafted was contents of Walsh, Lux, he, supplied that Officer and not Attorney when Assistant statement, he did not read the statement and that it. Al- signed him or he it to before Attorney presented State’s Walsh Lux, that the State significant it is this was denied Officer though Lux Walsh, Officer who Attorney Jerry not State’s did call Assistant statement, during as a witness took defendant Williams’ Roy stated failure to for its trial, explanation did not offer any and the State not counsel did more the defendants’ significant, have done so. Even a witness. called Walsh as on the State’s failure have raise or rely that testified defendant Williams both Roy Lux and the Officer statement, that the statement the defendant did not write his the defendant and that Assistant State’s Walsh Attorney written by Attor- State’s Lux nor Assistant it. Neither Officer signed thereafter state- the defendant’s to take reporter a shorthand ney Walsh called having for them in the record ment, appears no explanation done so. Roy on defendant the trial court on a decision hearing

A placed would have his statement suppress motion to Williams' of Of- credibility against the defendant Williams credibility Roy trial court’s for the Walsh Attorney State’s ficer Lux and Assistant to the defendant favorable the trial court ruling by A determination. statement would his suppress his motion Roy Williams had concluded the trial court indication that an obvious been his a denial of Conversely, witness. the more credible a clear indication have been would his statement suppress motion Attorney Walsh Assistant State’s the trial court had found that and Officer Lux were the more credible witnesses. Based this upon pretrial by assessment the trial court of the credibility Williams, Roy Officer Lux and Assistant State’s Attorney Walsh as witnesses, the defendants’ meaningful would had a ba sis and barometer for advising defendants on whether to exercise their right constitutional by be tried determined the trial jury, by court’s ruling on the suppression motion. Advice a defendant’s at torney to waive a jury trial when the trial already rejected court has a defendant as a credible witness on the hearing of his motion to sup press his pretrial statement advice, would ordinarily incompetent be so on the particularly facts the instant (People case. v. Chat man (1967), 36 Ill. 2d 110.) N.E.2d The defendants’ attor ney’s failure pursued to have this acquired appropriate pretrial credibility determination the trial court is another manifestation of the defendants’ attorney’s incompetence. pretrial No motion sup press the defendant Roy made, Williams’ statement and, thus, there judicial was no determination of the constitutional validity on the voluntariness or the authenticity statement.

I leave, momentarily to, will later but return defendant Roy Wil- liams’ statement.

B It is noteworthy that codefendant Emmaline Williams at trial de- nied making oral any or written incriminating admission to Officer Lux. It would appear that had she made any voluntary incriminating admissions, they would have been reduced to writing. No reason ap- pears for such admissions not having been writing, reduced to except perhaps, testified, as she such But, admissions were not made by her. again, here defendants’ counsel did not raise the issue.

I am constrained to point out that the majority’s statements— “The police then confronted codefendant with [Emmaline Williams] defendant’s [Roy statement. Codefendant told the officer Williams’] that those events must have if occurred defendant said that they did” (182 Ill. 600) 3d at App. not totally correct and are indeed mis —are leading. More accurately, Officer Lux equivocally tes vacillatingly tified on direct examination:

“Q. What did you say to her at that time? A. And then confronted her with [Emmaline Williams] what had Roy just told us.

Q. And what did she at that say you time?

A. I believe she said that must be so if he said If it. he said it’s so. It’s so. Something added.) (Emphasis effect.” Lux of Officer testimony worth of this irresolute evidentiary The true assessed. need be

IV MOTION MADE NO SEVERANCE THE COUNSEL DEFENDANTS’ AND EMMALINE WILLIAMS BEHALF OF CODEFENDANT ON DEFEATED HER BENEFICIAL HE THEREBY IGNORED AND TRIAL. INTEREST IN AND TO A SEPARATE his him and inculpated Roy The statement of defendant Williams the al- Williams, wife, in the commission codefendant Emmaline written, Williams’ portions Roy offenses. The leged pertinent statement follows: signed

“STATEMENT OF ROY WILLIAMS 17, AM Taken June 1985 at 4:30 At Area 3900 S. California 3VC ** * intercourse with the sexual regarding This statement taken Damen at 11:30 in 1984 at 6544 S. April, occurred A.W. which PM.

* * * A.W. to have sex with wife, Emma, me if I wanted asked My 13 and she was daughter adopted I I did—A.W. is my and said to our bed- brought A.W. this years happened old when —Emma in already I was bed to take her clothes off. room and told her into got off and took her clothes without clothes on. A.W. any into bed with got her clothes off and with me—Emma took bed and breasts. vagina I her in bed touched got us. When A.W. After she re- her to relax. and I told She was jumpy —Emma about vagina in her her put my penis laxed I on and got top her She said ten minutes. I inside of her about a half inch. was After reach a climax. I I didn’t stopped. stomach hurt her so go could Emma said she there awhile and that we layed [sie] her left and went to bedroom. her She back to bedroom. * * * Williams Roy IS! Jerry

ASA Walsh 6428

Y.O. Frank McCall J. Lux 8027”

Y.O. Roy to introduce intention on the State’s Predicated trial, codefendant him on his against as evidence Williams’ statement

619 from his. separate Emmaline Williams was entitled to a clearly 66; People (1981), v. 173 Ill. v. (People (1988), App. McVay Schmitt 3d 708, 715, 922; (1988), 3d 424 v. Hernandez App. People Ill. N.E.2d Yet, 293; Ill. 2d v. Ill. 2d (1988), 321.) Cruz People defendants’ counsel did not familiarize himself with or utilize defend ant as a severance be Roy Williams’ statement basis for a motion on half of codefendant Emmaline defendants’ did Williams. The counsel not make a severance motion on Emmaline Wil behalf codefendant He manifestly liams. ne incompetent failing in do so. He glected and her interest in fail faithfully loyally pursue protect to do so. ing

Although the “a statements, severance could be majority’s defenses,” granted upon a showing antagonistic and “the defenses antagonistic” this case were not (182 App. 602), Ill. 3d at the accu racy of which is indeed questionable, the court’s statements neverthe are less de unquestionably incomplete deceptive. Antagonistic are not fenses the sole for a basis severance. We recently stated v. People (1988), 66, Schmitt 173 Ill. App. 3d 87:

“We have repeatedly held that when motion for a separate predicated trial is premise codefendant’s confes- sion or implicates moving defendant, admission a severance should granted be unless the prosecution declares ad- that the mission or confession will not time be offered evidence at the trial, offered, or if that there bewill eliminated therefrom any all references the severance.” party applying Although 200, Richardson Marsh U.S. Ed. 2d (1987), 481 95 L. 176, 1702, 107 S. Ct. 622, Nelson v. O’Neil 402 U.S. 29 L. Ed. (1971), 222, 1723, 91 S. Ct. Bruton v. United States 391 U.S. 20 L. Ed. 2d 88 S. Ct. v. Jones People (1988), 121 Ill. 2d 21, People 293, v. (1988), Hernandez 121 Ill. v. People (1988), 2d Cruz 321, 121 Ill. 2d 400, and v. Duncan 124 Ill. 2d People (1988), involved a whether defendant’s sixth con right amendment constitutional frontation at a was joint trial violated the State’s use of a by nontesti confession, fying codefendant’s these are authorities also instructive on a to right codefendant’s a severance the State to where intends on a in rely defendant’s confession which the implicates codefendant the commission of the are jointly charged. offense which they defendant’s attorney protect did not codefendant Emmaline Williams’ Instead, right interest and the separate a trial. defendants’ attor ney improperly Roy refused utilize defendant Williams’ pretrial statement code making as basis for a severance motion on behalf of Williams, right fendant Emmaline and her interest in and beneficial unenforced, to a trial separate unpursued unprotected. went and As v. Nealy Carbana 1362, 1365, in (5th 1986), quot- stated Cir. F.2d v. ing Turnquest Wainwright (5th 331, 334, 1981), Cir. 651 F.2d is to ‘an defendant “entitled who make a decision to [can] or not to use the [testimony] use unfettered effect of that decision by ” on his other client’s case.’ People v. Duncan supreme (1988),

In the court’s recent decision in murder, 124 Ill. 2d Duncan and were tried for armed Olinger for rever robbery, armed violence and Duncan contended conspiracy. from sal of his conviction that his trial should have been severed the Olinger’s trial because of admission of statement at Olinger’s trial, joint Olinger testify. complained, their at which did not Duncan bar, the that as does codefendant Emmaline Williams in case at the statements regarding alleged “witnesses’ out-of-court testimony Olinger Olinger [Roy Williams], though [Roy properly inculpatory Williams], had the effect of Wil inculpating [Emmaline the to consider the jury likely testimony because as well liams] against him.” 403.) at In improperly (Emphasis added.) (124 Ill. 2d Duncan, however, trial the to consider jury the court instructed in or Olinger’s determining Olinger’s guilt statement innocence only guilt determining statement Duncan’s Olinger’s and not consider bar, however, joint, the in or innocence. the case at defendants’ court to so re made no similar motion competent attorney on Relying only part statement. Roy strict defendant Williams’ and attendant to cross- Olinger’s testify inability failure to Duncan’s statement, held in court its supreme initially examine him the so of Dun (1) statement was Olinger’s inculpatory first opinion, defendant’s constitu can, its admission at Duncan’s trial “violated fundamental fairness re right (2) tional confrontation 2d at a new trial.” 124 Ill. 406. quired 200, 95 L. Richardson Marsh

Thereafter, 481 U.S. Ed. thereof, decided, 1702,1 authority S. and under Ct. People’s petition Supreme (1) granted the United States Court: Duncan; (2) certiorari judgment vacated the for a writ in Duncan remanding cause reversing Supreme Illinois Court Supreme Illinois trial; remanded the cause (3) for a new Illinois v. of Richardson. light for further consideration in Court Richardson, constitutional Supreme a defendant’s Federal 1In Court held that trial, use, joint of a nontesti at their right not violated of confrontation was eliminate refer is redacted to fying when confession codefendant’s confession jury properly not to use confession instructed ences to the defendant and 192,107 Ct. at 1706. 95 L. Ed. 2d at S. against the defendant. 481 U.S.

621 Duncan (1987), L. U.S. 98 Ed. 2d 108 S. Ct. 53. Duncan,

On remand in the supreme court of Illinois again held that admission of Olinger’s statement was error reversible as to Dun can and reversed and trial, remanded for a new stating, Illi “[T]he nois courts have long held that a choice must be made between sever ance, nonuse of a nontestifying codefendant’s admissions, or redaction to eliminate all reference to the implicated defendant (e.g., People v. Patris (1935), 360 Ill. 601).” Duncan, 124 Ill. 2d at 412.

The following language supreme court Duncan is equally applicable to the facts and circumstances in the case at bar: that, “The very given the interwoven nature the prose fact case,

cution’s it might be quite difficult adequately to impart proper limiting supports instructions our view that the trial court erred in failing to sever defendant’s from Olinger’s.” (Emphasis added.) 124 Ill. 2d at 411. Given the interwoven nature of the defendants with each other victim, with the and the nature of the prosecutor’s case in the bar, case at it is obvious that the defendant’s counsel erred and was incompetent in failing to present a severance motion on behalf of co- defendant Emmaline Williams. To her detriment, he did not loyally pursue her rights and best interest.

Based on defendant Roy Williams’ statement and the law applica- thereto, ble the defendants’ attorney’s failure to have sought sepa- rate trial for codefendant Emmaline Williams was inexcusable and clearly denied codefendant Emmaline Williams her constitutional right to the effective assistance of counsel. He refused to protect pro- or mote her best interest because of his improper joint, simultaneous representation of her husband.

V A HER, ALTHOUGH INADMISSIBLE AGAINST DEFENDANTS’ COUNSEL FAILED TO OBJECT ON BEHALF OF CODEFENDANT EMMALINE WILLIAMS TO THE ADMISSION OF DEFENDANT ROY WILLIAMS’ STATEMENT AS EVIDENCE AGAINST HER. Roy Defendant Williams’ statement was inadmissible as evidence against the codefendant Yet, Emmaline Williams. their joint counsel object failed to on behalf of codefendant Emmaline Williams to its ad- mission as to her. Nor did he move the trial court to restrict consider- ation of Roy Williams, Williams’ to Roy statement as and not to only Emmaline The defendants’ against consider it as evidence Williams. and was also counsel was to codefendant Emmaline Williams disloyal in not such motions. objecting making in not so incompetent direct ex- chief, Lux testified on During the State’s case Officer Roy Williams’ amination that exhibit No. was People’s Walsh, to Lux and State’s signed given Attorney statement Assistant out, forth in said state- previously pointed heretofore set herein. As codefendant, Emmaline implicated ment defendant Roy Williams and her Williams, alleged him in the commission of the offenses with in the offenses were not deleted properly name and her involvement Additionally, no such motion. from the statement. Their counsel made counsel, only Roy not was Wil- objection without from defense any evidence, it was also published liams’ statement admitted into but Lux was during the trial court Lux’ direct examination before by attorney: cross-examined defendants’ we would ask Judge, STATE’S ATTORNEY]: “[ASSISTANT

*** this publish this witness be allowed to exhibit [Peo- ple’s exhibit No. 2]. it What published?

THE to have so Any objections COURT: evidence, into identifi- asking for is to have it admitted you’re Do it. publish cation marks to stricken and that witness be to that? you any objection objection. No

[DEFENSE COUNSEL]: marks to be all identification Accordingly, THE COURT: *** State may and the stricken on Exhibit Number People’s Proceed. through said document witness. publish * * * *** statement this time read that Q. would you Officer added.) (Emphasis to the end?” top from complete statement read to the trial court Officer Lux Thereupon, code- his Williams, inculpation included of defendant Roy (as offenses commission of the Emmaline in the fendant Williams conduct was counsel’s herein). Defense previously appears statement co- of which It because incompetence, not trial was obvious strategy. compromised not only defendant Emmaline interest was Williams’ negated, ignored. but indeed her interest was Emmaline Wil- codefendant competent against evidence only A.W., be- extremely totally testimony liams was the uncorroborated Emmaline de- circumstances. given, gravely suspicious under latedly court to determine for the trial of the offense. It was nied commission the admissi- on solely influenced and based guilt, her innocence or or inad- her, by any improper and uninfluenced against ble evidence case, if the trial missible the circumstances of this evidence. Under statement, which it obviously Roy court believed defendant Williams’ did, for the trial impossibility and mental physiological became com- guilt of Emmaline’s court to have reached its determination Williams’, husband’s, her the defendant pletely Roy uninfluenced statement, of the offense inculpates in which he her in the commission and which was inadmissible her. This is so when against particularly did to restrict request (1) defendants’ not court maker, Roy its consideration of the statement to Wil- its liams, or not as (2) against to consider statement evidence code- Roy’s Williams; fendant Emmaline and more so when the trial particularly gave court no indication that or had so limited its absolutely it would reliance on Roy Williams’ statement.

The majority, in mistaken reliance People v. Jones Ill. 2d concludes that because “[c]odefendant [Emmaline Williams] testified making incriminating statement, and denied and defend any ant [Roy claimed that his written intelli admission Williams] or gently made true joint no conflict of interest in the [t]here representation (182 ***.” 602.) Ill. 3d at does not App. Jones consider a claim of a denial aof defendant’s sixth amendment constitutional right to the effective of incompetent assistance counsel because counsel.

I have noted previously herein the distinguishing characteristics of the relationship the defendants to each other vic- alleged and tim, the charges and the interwoven nature of the State’s evidence in bar, the case at which need not be here reiterated. No such distin- guishing characteristics were in present Jones. I hereafter discuss in greater Jones detail.

THE ADMISSION OF ROY WILLIAMS’ DEFENDANT STATEMENT AS EVIDENCE AGAINST THE CODEFENDANT THE

EMMALINE WILLIAMS VIOLATED LATTER’S RIGHT CONSTITUTIONAL TO DUE PROCESS. When brings charge the State a criminal a against single defend ant or against defendants, multiple due to process requires State prove, by only evidence, each competent and admissible defendant guilty a beyond reasonable in for doubt order such defendant to be (In found Winship (1970), re 2d guilty. U.S. L. Ed. 90 S. 1068.) Ct. The Supreme Virginia Court stated in Jackson 307, 315, 317-18, 443 U.S. 560, 571, 572-73, 61 L. Ed. 99 S. 2781, 2787, 2788, Ct. “In Winship, the Court held the first time that the Due Clause Process of the Fourteenth Amendment protects a in against ‘except upon proof

defendant a criminal case conviction be- every necessary fact to constitute the yond a reasonable doubt ” „with Winship, he crime is and “under which estab- charged,’ as essential of Fourteenth a reasonable doubt an proof beyond lished it such conviction occurs process, Amendment due follows when trial, constitutionally in a state cannot stand.” drawn, lines are when the die of the trial battle When launched, is it is the State cast, trial conflict is when the attack upon or defendants. The defendant is called and against defendant to and meet the State’s valid evidence required against only defend to him. testimony testify against and the of witnesses State calls The The is the defendant. trial is not a contest against trial the State against a also on a trial defendant by the State and codefendant to, to, required he not and required A is not should be trial. defendant to meet and de- process being required him from prohibits indeed due by the State si- presented fend evidence and against testimony presented by his multaneously against testimony defend evidence cross-examination of a codefend- codefendant. A defendant’s counsel’s right to confrontation ant defendant’s constitutional may satisfy short, indeed it fails in cross-examination, utterly but it falls far a process prohibition against with due my judgment, comply codefendant’s trial testi- required against defend being defendant statement admitted into evi- pretrial a codefendant’s mony against or charged the defendant commission inculpates dence that case at bar. precisely happened offense. This is what statement, codefend- inculpating Roy pretrial Defendant Williams’ charged in the commission of the offenses ant Emmaline Williams court to urged the trial prosecutor into evidence. admitted finding statement both pretrial Williams’ rely Roy on defendant that the from the record and it guilty, quite apparent defendants codefend- unfair and denied fundamentally so. This was court did process. due Emmaline constitutional ant Williams to tes- testify, dictate A codefendant cannot will the defendant be should testimony or what the defendant’s tify, in the case bar slightest suggestion is not the elect to There testify. defendant any way Emmaline influenced that codefendant Williams be, and vice testimony his should testify to or in what Roy Williams of them di- Moreover, no either there is likewise evidence versa. Yet, alleged their statements. pretrial of either of rected the contents on Williams convicted Emmaline is clear that codefendant statement, inad- pretrial certainly which was Williams’ Roy defendant her. upon required She was to simul- nonbinding and against missible

625 her of the State and code- taneously against defend the dual evidence due fendant-husband, process. in violation constitutional It no or or solution really meaningful satisfactory vindication violation, caused by to codefendant Emmaline due process Williams’ into statement evidence Roy admission of defendant Williams’ her, could cross-exam against joint defendants’ counsel have testified, to codefend Roy pursuant ined defendant Williams when he right ant Emmaline Williams’ sixth amendment of confrontation. 176, v. Marsh First, 200, Ed. Richardson 481 95 L. 2d (1987), U.S. Nelson v. 29 L. 2d O’Neil 1702, 622, 107 S. Ct. 402 U.S. Ed. (1971), 1723, 123, Bruton v. United States 222, 91 391 U.S. 20 (1968), S. Ct. 21, v. 1620, S. Ill. People Jones (1988), L. Ed. 2d Ct. 121 v. People 293, People Hernandez v. Cruz (1988), (1988), 121 Ill. 2d People Duncan Ill. 2d do and Ill. 2d not ad dress this due claim. process

Second, joint defendants’ counsel’s cross-examination defendant Williams behalf Roy on of codefendant Emmaline on his Williams statement would only aggravated imbroglio. joint have Their counsel called Roy behalf, defendant Williams as a witness on his on behalf of codefendant Roy Emmaline Williams. Defendant Williams testified on direct examination. He was then cross-examined prosecutor. He stated in essence that he was persuaded by Officer Lux and Assistant State’s Attorney sign Walsh the statement and that its contents were not For true. the defendants’ counsel there- after cross-examine defendant under on Roy Williams and these cir- cumstances would indeed be compromising would ad- assuredly versely impact on the integrity persuasiveness on his subsequent argument to the trial court to accept rely codefendant Roy Williams’ as credibility a witness and him. His role acquit disloyal client, Williams, his cross-examining Roy own on behalf of client, Williams, his the codefendant Emmaline would com- promised Roy. his dedication to His failure cross-examine him vio- lated his to Emmaline. loyalty

Third, the right, the and even the actual ability cross-examination codefendant, defendant, on behalf of on a pretrial defendant’s statement or confession in he inculpates codefendant commission alleged offense and which is repudiated by defendant at trial do not or cancel statement confession’s incrimi- evidence, nations of the codefendant into when admitted even though the statement or confession against is inadmissible the codefendant. The result is that State has used a prejudicial, defendant’s inad- pretrial missible hearsay statement or confession as evidence con- 626 This codefendant, in due process.

vict violation constitutional was no pretrial more so in the case at because there egregiously bar Roy of defendant Wil- validity determination of the constitutional neglected to statement, joint attorney liams’ the defendants’ because an motion to it. appropriate suppress make

VI A THE DEFENDANTS’ ATTORNEY NEGLECTED TO AND TO FAMILIARIZE HIMSELF WITH PROPERLY MATERIAL UTILIZE OTHER PRETRIAL DISCOVERY HIM BY THE FURNISHED STATE. VOLUNTARILY in Wheat v. of the States observed Supreme Court United 140, 151, L. 153, 163, 108 States U.S. Ed. United or a sin- 1692, 1699, testimony few of unforeseen S. Ct. that bits “[a] shift significantly or document gle previously may unknown unnoticed added.) the defendants.” relationship multiple (Emphasis the between rather what should happened, precisely This is what or precisely the incom- have but for happened, properly happened have would the defendants’ petence attorney. with the attorney

The defendants’ did not familiarize himself handwritten, seven-page recording, minor adopted daughter-victim’s offenses, voluntarily of the defendants’ commission purportedly discovery the the State as attorney by pretrial furnished defendants’ set forth in alleged This statement of the victim is material. written statement, alleged the vic- full as an hereto. this written appendix Emma- and codefendant inculpated Roy tim both defendant Williams upon her. alleged commission of the sex offenses line Williams the that, only establishes not did affirmatively proceeding colloquy Trial to himself the contents of fail familiarize with the defendants’ counsel statement, more said collo- importantly, said but alleged the victim’s trial, outrightly during the midst of establishes quy, he furnished had been did even know defendants’ or had it his possession. victim’s statement that he alleged commis- direct defendants’ After examination testifying asked al- her, then upon prosecutor sion of the sex offenses victim, testified, following colloquy occurred: leged she you after incident did

“Q. way, shortly Now by a letter to this incident? anyone concerning occasion write A. Yes. incident,

Q. long early April after the the one How first of 1984 did write this letter? you that. couple

A. A weeks after Q. you And did write this letter to? who A. Mrs. Abernathy.

Q. Abernathy you was Mrs. at that time? Who my A. She was former foster mother. Honor,

MR. Your at this time I ask leave of court DURKIN: four People’s pages mark as Exhibit Number with Group sides, writing on handwritten statement. both Counsel], THE do you any objection COURT: have [Defense marked for having only? identification purposes object, Judge. I State never [DEFENSE COUNSEL]: with copy. us This is the I’ve ever heard time furnished first it or seen it. MR. My DURKIN: records indicate all the D.C.F.S. [Depart- ment of Children and Family records were tendered Services] back in of ’86. May We never this. Although received

[DEFENSE COUNSEL]: discovery completed. know,

MR. I Judge. DURKIN: don’t records Our indicate otherwise. All these documents were tendered over to the de- fense. Nothing kind that has ever [DEFENSE COUNSEL]:

come to me. MR. got copies. DURKIN: We’ve made copies We reports. D.C.F.S. Counsel’s is a I good feeling size. have file they’re in there. THE Do you your COURT: files in have there? I have file. my

[DEFENSE COUNSEL]: THE COURT: Would allow the you attorney State’s to see you you? whether that included in the have file before Judge. MR. Here go, got DURKIN: we He’s it. THE COURT: Let the record show that documents that were attorney submitted defense counsel state’s were attorney, examined state’s and he indicated to this court this that he document which indicated counsel] [defense found he given had never—Never had been to him to time prior trial this case. I believe has Accordingly, complied the State with discovery, your objections all are overruled. apologize, I Judge. [DEFENSE COUNSEL]:

[*] * * MR By DURKIN: exhibit, A.W., that’s been

Q. I’m to show going you take a you 1. Would Group as Exhibit Number People’s marked exhibit, Do page, you recognize that each through please. look Number 1? Group Exhibit People’s A. Yes. is this? A.W., this to be? What

Q. you recognize what do I showed just you? The exhibit

* * ^[*] to me in of 1984. April The sexual that happened A. abuse letter, is that, that is a that THE I understand but COURT: right?

A. Yes. write the letter? you THE Did COURT: A. Yes. write it to?

THE did you COURT:Who Mrs. Abernathy. A. Mrs. Abernathy?

THE COURT: added.) (Emphasis A. Yes.” the defendants’ counsel had foregoing

It is from obvious He was victim’s statement. alleged himself with the not familiarized It is irrefutably appar- in his possession. that it was unaware totally possibly trial could not ent before defendants’ and formulated the best statement the victim’s analyzed reviewed tactics to re- pursue and beneficial and most feasible strategy minimum detriment to the defend- for its it and its contents garding ants. counsel, and the trial court and between colloquy

The preceding to Mrs. about Abernathy her letter testimony regarding A.W.’s direct 1984,” me in concludes April happened “the sexual abuse Attorney State’s Durkin the trial Assistant transcript. 33 of page five only on direct examination further A.W. questioned thereafter tendered to the A.W. was then transcript. pages additional attorney The defendants’ attorney for cross-examination. defendants’ himself with A.W.’s a recess to familiarize did not ask for read and discovered, for the first statement, he only previously moments of A.W.’s di- Instead, conclusion time, possession. he had in his upon im- examination, proceeded surprisingly, rect the-defendants' cross-examina- to cross-examine her. counsel’s mediately Defendants’ not ask He did consists of grand pages. tion A.W. of 10 total contents of or single on about question A.W. cross-examination Yet, even a hasty what she wrote of on the incident in her statement. contradictions, of her statement in- reading significant discloses many consistencies and omissions what on the between A.W. testified wit- ness stand occurred and in her what A.W. wrote statement occurred. I note but a few of these contradictions and omissions.

A.W.testified on direct examination:

“Q. When did your you clothes come off after went to the bedroom?

A. When she holding door- [codefendant Emmaline] knob she made me take ’em (Emphasis added.) off.” Subsequently, A.W. testified on direct conversely examination:

“Q. How did she make take clothes off? you your A. Because she took them with her hands she while off holding doorknob. She took them with the other hand.” off (Emphasis added.) A.W. never statement, stated her People’s exhibit No. that code- fendant Emmaline took off her clothes.

Next, A.W. testified on direct examination:

“Q. What were her to you words exact to you? words —her A. She said that you mama loves and that why the reason she haven’t doing been got because she hurt trying to put air conditioner into the window and she couldn’t do it—do any- thing with him. That’s she why had been asking me to do it.

Q. Because she had hurt herself?

A. Yes.” (Emphasis added.) it is Although clear unequivocally from her testimony A.W.’s statement above referred alleged April 1984 sex acts for which the defendants trial, were charged and it is evident from the prosecutor’s following closing argument that he contended that this related testimony to the alleged 1984 sex April offenses for which the defendants were charged and on trial. The prosecutor argued initially in closing argument:

“The evidence has through shown her that the mother or mother, adopted Williams, Emmaline did tell her she had a fa- vor for her to do. fact she told her that she couldn’t have sex with her husband because she had a bad back.” (Emphasis added.)

The prosecutor stated to subsequently the trial court in closing argu- ment:

“She tells you defendant Roy Williams admits that his [A.W.] wife problems had back and she tells you who she [codefendant told that that was one of the reasons that Emmaline] [A.W.] she was having her have sex with her husband rather [A.W.]

than herself.” sentence, imposing testimony trial court relied A.W.’s that the defendants told her that codefendant Emmaline could not of some Roy have sexual relations with defendant Williams because as a reason for the defendants’ sexual involvement physical infirmity The sentence: imposing with A.W. trial court stated your “There’s no need for that kind of nonsense. I know wife not physical satisfy you. was in a condition where she could brought (Emphasis That was out in the trial the ease.” added.) statement, There is not one word in A.W.’s written ex- People’s 1,No. Emmaline condition physical hibit about codefendant Williams’ or her condition’s on her A.W. does physical impact powers. sexual to either any not attribute in her statement remark defendant about a rea- Emmaline’s condition or her lack of sexual abilities as physical son, otherwise, or Emmaline’s for request codefendant A.W. husband, Roy have sexual intercourse with her Williams. Of foregoing far to her greater significance, diametrically contrary in her statement the codefendant testimony, trial A.W. stated Emmaline did sexual Roy Williams and the defendant Williams stated in her statement: night. contradictorily intercourse A.W. she said A.W. not it Then she made you doing right. “Then stop move over. While him and her did it. Then ***.” they me (Emphasis added.)

There no cross-examination of defendants’ counsel A.W. from on these and vital contradictions with and omission glaring trial testimony. A.W.’s statement, in her

In the context in which A.W. testified and wrote there no that A.W. meant sexual intercourse when question can be Emmaline used, she and when she attributed to codefendant Williams the use of the terms: it”; doing she haven’t been why

“the reason it”; do “she couldn’t him”; with anything

“do it”; why asking she had been me to do “that’s doing right”; “you ” added.) “while him her did it. (Emphasis attorneys accepted and the trial construed prosecuting court aforesaid intercourse. A.W.’s as sexual terminology meaning Any construction would illogical. Meaning other have been sexual totally intercourse, or whatever else have meant might forego- A.W. A.W. expressions, testified at that codefendant Emmaline ing “do it” with her husband because Williams told her that she couldn’t that Emmaline requested of some and for reason physical infirmity Williams, A.W. to “do it” with her husband, and that Roy defendant contradicted directly she did so. This trial of A.W. is testimony statement, her prepared by A.W.’s written which she testified two to have occurred. supposed weeks after incident was written she told A.W.’s statement stated that codefendant Emmaline it her, you doing right” “A.W. and that codefendant Emmaline “while her did it.” (Emphasis added.) over, him and made her move it,” If “him and her did statement, as stated in her then code- A.W. not “do it” fendant Emmaline could not that she have told A.W. could “to do it” injury because an and therefore wanted her A.W. with husband, testified, as Roy Williams, in direct contra- A.W. diction her statement. (Emphasis added.) defendants’ to, neglected to, indeed the record that he not know discloses did cross-examine A.W. on these extremely contradictions be- pertinent tween her statement and her trial He testimony. incompetent.

Next, testified, occasions, A.W. on six different at trial that after defendants committed the sex acts on her in she im- April mediately told the defendants’ 19-year-old daughter, Tanya Bergen, what the defendants had done to her. A.W. just testified on direct ex- amination:

“Q. What’s the next that thing happened?

A. I to ***. I Tanya’s went knocked on her door and told come in the bathroom and I told her what happened and she didn’t believe me.”

A.W. testified on similarly later direct examination:

“After you Tanya told what happened thing what’s the next you did?

A. I went to bed.” testified, further examination, A.W. on direct got up when that she morning:

“Q. when you got And up happened? what *** A. [Tjanya came upstairs and asked me what happened I again told again.” her on additionally

A.W. testified direct examination about afternoon: “Q. you When did next see Tanya? I

A. When came from school. Q. And what happened you when Tanya? saw just kept A. saying she couldn’t believe that [S]he happened.” had on cross testified again

A.W. examination: “Q. tell of them about it? you any Did ever night I her it daughter happened.”

A. told later, again, A.W. testified cross-examination:

"Q. excepting discuss this incident with you anyone Did on the hot line? person I *** her daughter.

A. told Q. daughter tell her about it? you did [W]hen night happened. A. The daughter?

THE How old is the COURT: ^{[**] [*]} A. Nineteen.” forth, six testified that

Although, as set A.W. times repeatedly her, had done to Tanya she told what she contended the defendants statement, once in her written exhibit People’s she never mentioned incident, after the that she prepared by shortly No. her purportedly in not Tanya incompetent had told about it. Defendants’ counsel was and A.W. on these numerous contradictions omissions cross-examining trial testimony. People her statement and her Jackson between Ill. 238 N.E.2d 234. App. the trial court to overlook A.W.’s The did not allow prosecutor Tanya Bergen what the defendants that she told testimony promptly the trial court argument urging In his initial opening had done to her. find the stated: guilty, prosecutor to the defendants to Tanya made outcry

“She how there was you prompt told the Bergen, daughter another defendants.” statement, ade- there an Although, extremely from A.W.’s challenge successfully counsel to quate and valid basis defendants’ case, he the State’s of this vital integrity veracity aspect the and so. The incompetent. failed to do defendants’ counsel was

B calling Bergen Tanya in not incompetent Defendants’ counsel was herein, testified on set forth A.W. a witness. As previously as defense told Tanya occurrences she immediately after the six occasions that her. upon the sex acts that the defendants had committed Bergen however, statement, she related that in her written A.W. did not state a witness Bergen as Tanya prosecutor subpoenaed this to The Tanya. witness, not because she did apparently he not her as a did call but told her that contradicted, that A.W. had instead verify but was there- her. upon Tanya Bergen the sex acts defendants committed to refute A.W.’s 14-month to the defendants witness fore favorable her the defendants’ misdeeds that A.W. told about assertion belated other time. earlier, any or at happened, when it supposedly months 19, 1986. testified on November The trial commenced A.W. trial resumed The trial 1986. When the was continued to December he was date, ready on answered that attorney that defendants’ following occurred: thereupon colloquy any state witnesses to you “THE COURT: have [T]he call? we We Judge, STATE’S do.

[ASSISTANT ATTORNEY]: to record police put officer We also want [Lux]. Tanya we this subpoenaed, one witnesses had that to is Bergen, court her it our today, speaking but after election not to call her as a witness. I don’t know if defense wants her. Do you want call her?

THE COURT: No, sir. [DEFENDANTS’ ATTORNEY]: need,for COURT: Youhave herl THE no No, sir.” (Emphasis added.) [DEFENDANTS’ ATTORNEY]: that prosecutor speaking Bergen, stated after Tanya his attorney election not call her as a witness. The be- defendants’ fore convincingly argues us that had to the Tanya Bergen confirmed prosecutor that A.W. her of told the defendants’ commission her, sex upon acts the prosecutor would have called her as a witness to corroborate testimony A.W.’s trial that she done Con- had so. the defendants’ as versely, attorney just argues that it is convincingly prosecutor obvious did call Bergen as a witness because Bergen disputed and denied to him A.W.’s assertion that had A.W. Thus, done so. us, defendants’ argues further before with equal persuasion, Bergen was a for the favorable witness defendants to refute extremely untimely A.W.’s trial as- belated sertion that she had told what Bergen the defendants had done to Contrary her. attorney’s defendants’ trial response inquiries court’s that he had no for need and did not want to Ta- call nya Bergen witness, as a the defendants’ attorney did trial a need Tanya for and should Bergen have called as a defense witness. He was incompetent failing in to do so. v.

The in People Caballero supreme court recently (1989), held 126 248, Ill. 277, 2d petition that a post-conviction alleged which that de fense counsel did named persons not call three mitigating as wit on nesses the death sentencing defendant’s hearing simply because they were not opposed death unalterably penalty a se “raise[d] rious question competence.” as to counsel’s The supreme court re versed the trial court’s order which dismissed the petition re- 634 the to trial “for an hearing

manded cause court evidentiary portion that of defendant’s which that he was denied petition alleges to sentencing alleged fair counsel’s failure cer hearing by present tain in mitigation.” (126 283.) witnesses Ill. 2d court supreme to expressly emphasized question that the be determined trial court remand was the defendant was afforded ef upon “whether (126 282) by fective assistance of counsel” Ill. 2d at defense counsel’s mitigating sentencing failure to call the three witnesses at hear ing.

VII VICTIM’S, A.W.’S, THE ALLEGED LETTER ALTHOUGH INADMISSIBLE, WAS HEARSAY CLEARLY PREJUDICIAL EVIDENCE, OBJECTED DEFENDANTS’ COUNSEL NEVER TO ITS ADMISSION. 1, No. letter to People’s A.W. testified she wrote exhibit mother, in her former foster she set forth the Abernathy, Mrs. in of the sex acts her and to April upon defendants’ commission 1984 testified, a never couple which she of weeks after the occurrence. She no the letter to was offered Abernathy explanation delivered Mrs. A.W., kept to the letter se- having According for her not done so. she 1985, months, and in June creted in her dresser drawer over investigation his during letter to Officer Lux she turned the over inadmissible hear- prejudicial instant The letter was classic case. say. offered or oral written is an out-of-court or declaration

Hearsay therein. of the matter asserted prove relied on court truth (1) when the declaration Oral or written declarations are hearsay of the matter as court; truth (2) prove made out of is offered upon rests therein; of the declaration (3) veracity serted Hunter People (1984), v. the out-of-court declarant. credibility 114 Ill. 528, 659; People N.E.2d v. Jones Ill. 3d App. (1982), 108 Ill. 547; v. Clark People 449 N.E.2d 3d App. 1071,1079-81, 440 N.E.2d 387. App. after letter two weeks that she wrote the testimony

A.W.’s was un- in her drawer for 14 months dresser kept the incident and the prose- offered by letter was It is certain A.W.’s corroborated. A.W.’s trial testimony. as corroborate cution and admitted evidence lift a his attempt as witness been described an This tactic has form and was purest its hearsay A.W.’s letter was own bootstraps. People Fuelner against the defendants. as evidence inadmissible

635 340, 349-52, 104 Ill. 3d 432 N.E.2d 986. (1982), App. 374, 389, court People (1972), supreme v. Clark 52 Ill. 2d

held: as to he made out of may testify witness statements

“[A] court for the his purpose corroborating testimony given the trial subject.” relative same 578, In People Rogers 81 Ill. 2d (1980), supreme court stated: appears single

“It that no facet of the law has been produc- tive of as much application confusion as has the of the hearsay *** evidence rule. The of hearsay definition itself is deceptively and is simple generally accepted testimony be of an out-of- court statement offered to establish truth of the matter as- therein, serted resting for its value upon credibility *** the out-of-court asserter. In People 374, 388-90, v. Clark (1972), Ill. 2d this court noted the general rule that ^although witness may be present court and subject cross-examination, he may not testify as to statements he made out court the purpose corroborating his testimony given at trial relative to the same subject ***.” (Emphasis added.)

In spite of its obvious inadmissibility, defendants’ attorney did not voice any objection to the admission into evidence of preju A.W.’s dicial inadmissible hearsay statement. His object failure to was not an oversight. It is apparent that he did not know to object. (People v. De Simone 9 Ill. 522.) He incompetent. “MR. DURKIN: State’s Attorney]: Judge, at this [assistant ***

time we would ask that the identification marks from Peo- *** ple’s Exhibit Number for identification we would ask that it be admitted into evidence and the identification marks be stricken.

THE COURT:Any objections, Mr. Attorney]? [Defense No objection. [DEFENSE ATTORNEY]: THE COURT: it will be Accordingly, admitted into evi- dence.” (Emphasis added.) majority observes, the case at bar “The case accurately

was quite simple and direct. The case involved testi complainant’s mony and Officer Lux’ testimony about codefendant’s [Emmaline’s] oral statements and defendant’s oral and [Roy’s] written statements as opposed to the denials of defendant and codefendant at trial ***.” (182 Ill. 3d at App. 603.) thereafter, The majority immediately how ever, conversely concludes: fallaciously “This letter No. [People’s exhibit cumulative merely 1] *** Thus,

nature to complainant’s even if the admis testimony. sion of the letter can be codefendant questioned, Ill. prejudice.” App. cannot claim 3d at 603.

This erroneous conclusion the defendants majority, letter, were not the admission of prejudiced by simply ignores A.W.’s the record. The record discloses that the prosecutor adamantly urged hearsay the trial on A.W.’s inadmissible letter as evi- judge rely dence of the defendants’ that the guilt. record likewise discloses trial court the and relied on inad- accepted prosecutor’s urging A.W.’s letter in the hearsay determining guilt. missible defendants’ court, In his to the trial the opening argument prosecutor argued: Honor, “Further Your she told how after the inci- you shortly dent a letter and that Ex- People’s Group she wrote would be hibit 1 she said she was to Mrs. going deliver n Abernathy. I ask of court to the court approach would leave with that so the that. may court

THE COURT: You do so. may I give STATE’S would also the

[ASSISTANT ATTORNEY]: court is in People’s Exhibit which evidence.

THE COURT: Thank you. Honor, STATE'S Your she told

[ASSISTANT ATTORNEY]: can it. It’s inspect how she wrote that letter and the court you letter that she to deliver it to Edna long going mother, her foster then Emmaline Wil- Abernathy, previous but if happened liams had made threats to her about what she told the the facts of the case and police. upon Your Honor based heard ask that find each you evidence we would you charge of each this indictment.” guilty he three-page closing argument, the defendants’ counsel’s short letter, interest, fol- commented on the to the defendants’ as adversely lows, his incompetence: a further manifestation of of That’s the ex- except April 1 is undated 1984.

“Exhibit that had things wrote to someone about these hibit which she added.) (Emphasis happened.’’ final U/s-page closing argument,

In the concise prosecutor’s it to the expounded: letter. He over one-half prosecutor devoted put be great emphasis that should I think lastly Judge, “And Not after fourteen months that was written. on the letter happened where she memorializes incident, after right but down, wearing,' actually what went that she was clothing the radio Everything station. changing the radio about or not she in that letter so she forget wouldn’t contained she went of the horror remind her a letter needed is clear. I think evidence Judge, of 1984. through April in fact are guilty the defendants convincing It’s you.” (Emphasis liberties. Thank and indecent charges rape added.) fi- aforesaid of the prosecutor’s the conclusion

Immediately upon letter. The to read the the trial court recessed closing argument, nal trial court stated: to read the letter. going I’m recess, minutes gentlemen.

“Five added.) (Emphasis Five minutes.” the trial a recess. left the bench and there was When judge

The trial relied on the letter bench, having after read and returned to judge recess, guilty. he found defendants during promptly both defendants’ motion for a new hearing on the Subsequently, letter surfaced. trial, hearsay again inadmissible prejudicial A.W.’s to the trial court: argued Their then there is a letter April “Now fourteen months after stating things hap- that certain alleged written victim done to her April things to her both pened defendants.” in his argument

The defendants’ to the trial court attorney repeated for a new trial. had the witness who made a statement.” complaining

“We trial. The trial court the defendant’s motion for new denied convincingly it or con- foregoing, seriously Based on cannot be court to consider and urge tended that the did not trial prosecutor from the importantly, on letter. More rely hearsay A.W.’s inadmissible on the prej- it is certain that the trial court relied foregoing positively guilty. the defendants finding udicial letter .hearsay inadmissible inaccurate, grossly only conclusion is not contrary The majority’s however, significance, greater the record. Of even contradicts clearly hearsay letter and its the inadmissible testimony are: about (1) A.W.’s the defendants’ coun- from objection into evidence without admission the letter had been sel; defendants’ counsel’s unawareness (2) fail- counsel’s (3) defendants’ doming pretrial discovery; furnished him contents; cross-exam- (4) no himself with the letter’s ure to familiarize letter; (5) defendants’ counsel of A.W. on ination defendants’ on closing arguments to object prosecutor’s counsel’s failure finding the letter in reliance on letter; (6) the trial court’s defendants’ establish the positively all of which guilty, defendants tactics or His errors were not incompetence. counsel’s absolute or of the It is that he strategy, misapprehensions apparent even law. did not know law fundamental to basic issues this case. 111 Ill. 2d 18. People Wright (1986),

VIII A THE FAILED DEFENDANTS’ ATTORNEY TO PRESENT FAVORABLE EVIDENCE ON BEHALF THE

OF DEFENDANTS. I as my agreement majority’s with previously expressed that, The case in quite simple sessment “The case was and direct. Lux’ as complainant’s testimony testimony op volved and Officer (182 to at trial ***.” posed the denials defendant and codefendant 603.) incompetently neglected Ill. 3d at The defendants’ App. on to to the trial court favorable evidence behalf present to defendants which could have the trial court resolve persuaded issue to the defendants. credibility favorably sen- guilty After the trial court found the defendants before counsel, tencing, presented each defendant retained additional who on the credibility evidence of A.W. and the defendants’ characters and hearing. appropriately This evidence was more sentencing defendants’ of the defendants on their trial. presentable behalf with claimed that on the after the defendants had sex day A.W. For 14 fighting. her in she from school for April suspended thereafter, sexual at- months she made no mention of the defendants’ her, her, Tanya Bergen. tack upon except, according 19-year-old sex attack alleged In June 14 months after the defendants’ her, again fighting. from school for Addi- upon suspended A.W. was admitted that on this of her from school day suspension A.W. tionally, home, floor at her for she the kitchen fighting improperly mopped she ran Emmaline her and punished which codefendant Williams she refused 13- Emmaline testified that Codefendant Williams away. promiscuously go boys out with requests year-old repeated A.W.’s out after hours. stay reasonable that she not allow A.W. would residence claimed to mother’s former foster A.W. went to a had the sex acts time, committed that the defendants her, for the first previously. her 14 months upon issue, an only A.W.’s credibil- not trial, credibility was

At A.W.’s adversely affecting evidence Although invaluable the issue. was ity defendants’ trial, did at available was credibility A.W.’s not present incompetent failing it. He was in to have done so. 30, 1985, hearing

At the defendants’ on sentencing December attorneys defendants’ retained two letters from post-trial presented teachers, grammar A.W.’s school both which stated that A.W. was not of belief. The defendants contend that worthy pub- these unbiased servants, lic were guardians youth, superior, exposed our in far and unrestricted position to evaluate A.W.’s than the lim- credibility ited, restricted trial atmosphere judge. the trial One letter stated:

“To It May Whom Concern:

I grade seventh teacher O’Toole Elementary [A.W.’s] School. I am a practicing During not psychologist. parental con- ferences, I attempted to express my concern over the character development occasions, On I numerous found her to [A.W.]. an become inveterate liar. It appeared to me that she was hav- ing a difficult time dealing with This reality. personality deficit was so severe that terms in a layman’s she would second be- come Dr. Jekyll and Mr. Hyde. swings These severe sincerely caused personal consternation. Her attempts thwarted ma- nipulate resulted behavior difficult me to describe.

* * ^[*] is in need of pre-adolescent counseling. psychological [A.W.] submitted,

Respectfully /S/ Mrs. Arline D. Chatman” The other letter similarly stated: 18,1986

“December

To Whom It May Concern: was a student grade 8thmy appeared class.

[A.W.] [A.W.] to have several psychological and I was problems, unable to her. The help student a problem telling truth, had and when she confronted, she still refused to tell the truth. There was always some her type problem with (fighting, talking back, and not doing work). her school had deep-rooted problems that needed services of

[A.W.] a counselor. the ability student, had a good but, be [A.W.] she working was not to her up potential.

/S/ Mrs. S. Jackson O’Toole Elem 6550 S. Seeley” The defendants’ counsel before this court argues strenuously these two impartial unbiased and elementary school teachers would likely these presented letters defendants, behalf of the convicted of other rape and sex offenses upon their minor adopted The the to be a liar. defendants’ daughter, they daughter unless knew this at incompetent presenting in not defendant’s counsel of these of lack testimony and favorable teachers A.W.’s pertinent and credibility veracity.

B that testified on examination in June additionally A.W. direct not did hospital. prosecutor she was taken to and examined The examination, and the hospital evidence of when present A.W.’s if her ex- hospital on inquired defendants’ counsel cross-examination the penetrated,” strangely, amination revealed whether she “had been prosecutor objected: you the

“Q. after Mr. had intercourse with Now Williams or to a for treatment you hospital were taken a doctor taken or observation? I

A. In June 1985 was. find Q. did that had been they you penetrated? But Objection. STATE’S ATTORNEY]: [ASSISTANT THE the ***. objection COURT: Overrule added.) A. I don’t know.” (Emphasis No. re- hospital

If counsel examination the records defendants’ for penetrated,” “had not he had valid basis vealed that A.W. been rec- the Such question pursued inquiry. the and he should have asking Roy and defendant testimony ords would have contradicted A.W.’s statement, supplied the of which he contends were Williams’ facts for vagina in A.W.’s officer, penis that he had inserted his police the had for hand, if no basis 10 minutes. On the other defendants’ counsel Additionally, it. he have asked asking the should not question, indicated objection question the prosecutor’s would seem that that hospital that records revealed was aware prosecutor that thus, tes- which, contradicted not A.W.’s penetrated,” “had been A.W. that he Williams' statement Roy and the content of defendant timony It is for 10 minutes. reasonable to vagina inserted his her penis had re- examination hospital knew that prosecutor surmise he did not and therefore penetrated” “had not been vealed A.W. evidence, and, he also ob- that reason records hospital offer in that area. jected attorney’s inquiry to defendants’ oddly, this pursued inquiry, and counsel further Defendants’ in his persisted objection: further prosecutor “Q. you? that that examined Who A. A doctor.

Q. place? what At Chicago University Hospital.

A. Q. you So the found that had University Chicago right— been is that penetrated, Objection. STATE’S ATTORNEY]:

[ASSISTANT are not in ev- THE COURT: Sustain the facts objection. (Emphasis added.) idence.” this or the of the passing validity ruling validity

Without ba- court, from apparent foregoing sis therefor the trial it is persisted the facts of case that defendants’ should have inquiry further the defendants’ own presented evidence records on this area. He was examining physician hospital subject in to do incompetent failing so.

C neglected present testimony Defendants’ counsel the favorable six of the other who in house residents were the when A.W. stated the sex were testimony acts committed. Defendants argue A.W.’s of their commission the of upon of sex acts her and testimony A.W.’s A.W. and codefendant Emmaline in the parading Williams nude house in which Bergen siblings, A.W. admitted that and A.W.’s Tanya Karen Dwight Williams, Williams and present and were in which defendant Roy testified, contradiction, Williams without that nine at lived people time, of unworthy belief. Defendants contend that their trial counsel was incompetent presenting testimony Tanya not of Bergen, Karen and and Dwight Williams Williams the other residents in the house substantiate and corroborate their denials of the com- mission of the criminal acts to them. attributed

D The defendants’ at attorney present failed trial favorable evi- dence of the background. defendants’ The defendants’ did attorney present at trial following evidence, favorable which would witness, have enhanced defendant Roy credibility Williams’ as a presented by but was his new sentenc- belatedly attorney ing Roy years was 57 hearing. age Defendant Williams of and no had prior in Chicago criminal He had lived since record. 1941. He served military States from honorably United 1951 to 1953 and was employment had an honorably discharged. He work history until a few years placed he was previously when and a disability, he was diabetic. he had been Throughout years repeatedly investigated, approved Illinois Department and by licensed of Children he Family and that had provided, Services to provide, foster homes There had been children, legally adopted. three of whom he for many him the against by kind regarding any the children complaint no The of his pastor or agency person. or other Department by any Wil- Roy that defendant sentencing hearing at his church testified in the church and that and officer standing liams member good was was excellent. community character in the reputation good his for following at trial the failed to attorney present The defendants’ Emmaline enhanced codefendant would have favorable evidence which tardily pre- This evidence was as a trial witness. credibility Williams’ sentencing hearing. Codefendant at her sented her new had no criminal age prior years Emmaline was Williams She, her adult life. most of steadily employed had record. She been and licensed approved too, home, investigated, had been and her place- for the Services Family of Children Department the Illinois were home, of whom in her several ment 13 foster children a li- She was Department. auspices her under adopted by that Mrs. Williams Her related clergyman censed foster parent. official, choir, helped Sunday church her church president further clergyman church. Her she attended regularly school and that good community in the reputation Mrs. related that Williams’ excellent. character was presenting in not incompetent trial counsel defendants’ bearing background of the defendants’ favorable evidence

at trial this as witnesses. credibility their upon

IX DID NOT OBJECT DEFENDANTS’ COUNSEL THE PREJUDICIAL THE ADMISSION OF IRRELEVANT TO A SEARCH THE FOR ABOUT COMPLAINT TESTIMONY AND THE SEARCH WARRANT. WARRANT 17, June A.W., Lux on Officer his conversation with Predicated on for complaint a judge to 1985, subscribed, presented to and swore home. the defendants’ to search warrant the issuance of a search prohibit was available imaginable legal Practically every objection as ev- and search warrant complaint about testimony admission of commission of offenses trial for the the defendants against idence The com- 1984, previously. 15 months in April committed allegedly impor- as evidence. More irrelevant were and search warrant plaint rank, prejudi- contained search warrant for the complaint tantly, commission of the defendants’ irrelevant, hearsay cial, inadmissible Yet, not on trial. were the defendants offenses for which unrelated the defendants’ attorney neglected to object this testimony. complaint the search warrant is set pertinent part forth in the following appendix No. 2. The defendants contend that it reads more like fantasized fiction than possible realistic facts.

Codefendant Emmaline cross-examination, Williams testified on without any objection from defendants’ counsel:

“Q. Well, when police came your 17, house on June had a search they showed, warrant that they didn’t they? A. had They piece paper with name on it I my but don’t know that it was a search or warrant not. I never seen a search warrant before.

Q. After they handed you piece of paper when they began to search the place? *** No, A. sir. *** STATE’S [ASSISTANT to mark ATTORNEY]: [I]'want what I have my possession as People’s Exhibit Number for identification ***. *** THE COURT: Defense attorney you do any objec- tion to showing the witness the exhibit? No objection. [DEFENSE ATTORNEY]: ***

THE COURT: Accordingly you may approach the wit- ness and question her in to this. reference STATE’S Williams,

[ASSISTANT Mrs. I’m ATTORNEY]: going to show you People’s Exhibit Number for identification *** isn’t that the document police gave officers you when they came to your 17,1985? house on June * * * ***

A. sir. This is not what they gave me. It [N]o was a piece of paper like this. had They my No, name on it. sir. I never seen that before.

Q. You never saw this search warrant before? IA. never saw that before. He did not give me that.” (Em- phasis added.)

Not being satisfied with having elicited this successfully foregoing irrelevant prejudicial testimony about the search warrant from code- fendant Emmaline Williams, prosecutor went further and elicited additional inadmissible testimony about search warrant from Offi- rebuttal, cer Lux on as follows: “Q. [Wjhen you went to arrest Emmaline Williams did you have a search warrant for the premises at that house? Yes,

A. I did. Q. And in fact you did present the of occupant that house 644 upon entry a into that house?

with search warrant A. Yes.

Q. And that was Emmaline Williams? Yes,

A. it was.” trial, and pretrial, post-trial pro- From the totality forth, clear, it is bar, in the at as herein set ceedings previously case de- doubt, seriously no and it or persuasively there can be cannot be competent that the defendants did receive contrary bated their trial. on legal representation

X THE WERE THEIR FEDERAL DEFENDANTS DENIED RIGHTS TO THE

AND STATE CONSTITUTIONAL BY EFFECTIVE ASSISTANCE OF COUNSEL AND THEIR ATTORNEYS’ INCOMPETENT PERFORMANCE. INADEQUATE 123 Ill. majority mistakenly rely People (1988), The Harris 113, defendants’ and well- 2d as valid authority rejecting I, too, incompetent. rely trial founded claim that their was attorney their incompetent, on Harris as authority so. patently Harris, of a State felony defendants were inmates multiple convicted institution. were also members and were

penal They gang gang inmate. Harris contended murdering felony, rival member be denied assistance of counsel for reversal he was the effective regard handled situation (1) “inadequately cause his trial counsel com had penal with a counselor in institution ing juror,” whom case; key (2) inadequately about cross-examined municated closing argu witnesses; (3) inadequate an presented prosecution noted, “In this issue deciding The court supreme significantly ment. counsel], each we note that denial assistance [of effective 150) individually (123 Ill. 2d represented,” these defendants Ill. added.) in the case 123 2d at 150. (Emphasis unlike at bar. inef- on the test for adjudicating The Harris court relied two-part claims, pronounced assistance of counsel which was Strick- fective L. Ed. S. Washington 104 Ct. land v. U.S. of counsel claim. rejecting Harris’ ineffective assistance under that to ineffective counsel pointed Harris court out establish per- show that counsel’s test, (1) a defendant must the Strickland objective it fell an was so deficient that below seriously formance norms; and professional under prevailing standard reasonableness (2) the deficient performance so prejudiced defense that it denied the defendant a fair trial. The Harris court out additionally pointed the Strickland test that a defendant requires demonstrate that “ ‘there is a that, reasonable for probability but counsel’s unprofes errors, sional the result of the proceeding, would have been differ ” ent.’ (Emphasis added.) (Harris, Strick 155, 123 Ill. 2d at quoting land, 694, 466 U.S. at 80 L. Ed. 2d at 104 S. Ct. at 2068.) This requirement is counterfactual, which, by definition, proof. defies Obvi ously, the Strickland court recognized this impossibility, Strickland court immediately explained:

“A reasonable is a probability sufficient to under- probability mine confidence in the outcome.” 466 U.S. at L. Ed. 2d at 104 S. Ct. at 2068.

Under the foregoing two-prong Strickland test, relied on in Harris, doubt, there can be no and doubt, there is no ratiorial that based upon the hereinbefore mentioned circumstances, facts and defendants’ counsel’s performance in the case at bar was so seriously deficient that it falls below any objective standard of reasonableness under prevailing professional Likewise, norms. doubt, there can no be and there doubt, is no valid that the defendants’ deficient attorney’s performance prejudiced so the defense as to deny defendants a fair trial. Because of defendants’ counsel’s unprofessional errors, there is indeed an abundant reasonable probability sufficient to under- mine confidence in the outcome of the case.

The Harris court further Strickland, that, noted under a defend ant must overcome the strong that presumption counsel’s conduct falls within the range wide of reasonable professional assistance and the challenged action might have been counsel’s trial strategy. (Harris, 123 Ill. 2d at 155.) There is no rational process which the defendants’ counsel’s previously noted and complained-of conduct in the case at bar can be considered or construed as profes reasonable sional assistance or sound trial strategy. Harris, The supreme court announced in Harris has [Defendant ***

not shown that his trial counsel incompetent. Defense counsel provided Harris defense, with an adequate he nothing did re sulted in prejudice to the defendant or would changed have the out come of the trial.” (123 Ill. 2d at 158.) Application of these tests in Harris compels reversal of the defendants’ convictions in the case bar and a new trial. These defendants have shown that abundantly their trial counsel was He did not incompetent. provide either defend ant with any defense. The defendants have overwhelmingly demon strated that their trial counsel’s actions and inactions “resulted in shown, prejudice Perhaps defendants.” defendants have show, perhaps they “nothing cannot ever he did would trial,” have the outcome of the as stated in Harris. changed (Empha added.) (123 158.) sis Ill. 2d at But the clearly defendants have shown do, that had their done what their did not attorney properly would, could, and most the outcome of the assuredly changed trial. bar,

In the case at (1) defendants’ counsel failed: to file a pre- motion; to familiarize with utilize the discovery (2) himself State; pretrial (3) material furnished him the discovery voluntarily statement; to make a motion to suppress Roy (4) defendant Williams’ to make a motion for severance on behalf of codefendant Emmaline Williams; (5) object behalf of codefendant Emmaline Williams to evidence; (6) the admission of defendant statement into Roy Williams’ to move the trial court to confine its consideration of defendant Roy him; (7) Williams’ statement to to move the trial court not to consider statement as codefendant Roy against Williams’ evidence Williams;" existence, file, Emmaline to learn of in (8) the his own of statement, prejudicial, hearsay A.W.’s inadmissible exhibit People’s 1;No. to (9) object to the admission of A.W.’s inadmissible prejudicial, hearsay evidence; statement into not and he (10) (he did know could not have known) to cross-examine A.W. on the inconsisten- flagrant cies, contradictions and omissions between her trial and her testimony statement; (11) to af- present adversely evidence which would have witness; credibility (12) present fected A.W.’s as a to evidence which witnesses; (13) would have enhanced the as to credibility defendants’ records, present hospital the of and other fa- testimony Tanya Bergen defendants; (14) vorable evidence on of to to the admis- object behalf sions of search testimony prejudicial warrant and other inadmissible defendants; evidence admitted the against (15) object prose- to arguments; cutor’s and to make Dur- improper (16) proper argument. ing the entire the defend- pretrial, post-trial trial and proceedings, times, ants’ he attorney objected only apologized five one of which making, one was sustained and three The incompe- were overruled. tent of the in the far performance defendants’ counsel case at bar was more than the egregious attorney’s incompetent per- defendants’ formance in Kimmelman v. Morrison 447 U.S. 90 L. Ed. 2574, which, reason, S. Ct. in for that defendants’ conviction for the invali- rape girl acquaintance a 15-year-old reason, dated. For the same the defendants’ convictions in the case at bar should be likewise invalidated. Kimmelman, defendant, her em- victim testified that the took her to his he forced her into his bed

ployer, apartment, where returning home her mother what raped Upon her. the victim told summoned, had happened. police were and the victim accompa- nied them were apartment, to the defendant’s into which admit- they ted another tenant in the The officers seized the sheet building. from the defendant’s bed. The defendant’s failed file a motion, pretrial discovery and he also failed to file a motion to sup- as not its press sheet evidence he did know of seizure or because State’s intent to use it as The sheet as evidence. was admitted against evidence the defendant. The was convicted. The defendant contested the constitutional conviction in validity his a habeas corpus proceeding in the Federal court on ground that his trial attorney’s motion, failure to filed a pretrial have discovery failure particularly sheet, his filed a motion to suppress ground that it was seized violation his fourth amendment right constitutional against be secure his home unreasonable seizure, search and denied him his sixth amendment constitutional right to the effective assistance of counsel. The Supreme Court held:

“Where a State obtains criminal conviction in trial in is deprived counsel, accused effective assistance *** the ‘State unconstitutionally the defendant of deprives his liberty.’ The defendant thus ‘in custody violation [Citation.] of the Constitution’ ***.

*** ‘Counsel *** has a duty ^{[*] [**]} bring to bear such skill as knowledge will render the trial a reliable adversarial testing *** process.’ testing Because that process generally [Citation.] will function done properly unless defense counsel has some into investigation prosecution’s case and into de- various strategies, fense duty we noted that ‘counsel has a to make reasonable investigations ***.’ [Citation.] The trial record in this clearly case reveals that Morrison’s motion, failed to file a attorney timely to suppression due considerations, because, trial, until the of strategic day but first he was unaware of of the search and intention State’s to introduce bedsheet into Counsel unapprised evidence. of the search and seizure had no pretrial because he conducted ***' discovery.

Viewing discovery counsel’s failure to from his any conduct at the he of perspective forego stage pre- time decided to that trial preparation applying ‘heavy deference,’ measure to [citation], his judgment, we find counsel’s decision unreason- *** Re- norms. able, is, prevailing professional contrary nor made a reasonable investigated, neither spondent’s lawyer discovery. through case the State’s investigate, not to decision at risk both puts pretrial preparation lack of complete Such case to meet the ‘ample opportunity to an right the defendant’s adver- reliability prosecution,’ [citations] L. Ed. 2d 383, 384, 385, 91 at 477 U.S. testing process.” sarial 2587, 2588-89. 324, 325-26,106 at S. Ct. at Morrison, v. bar, unlike in Kimmelman in the case at Although the pre- with counsel furnished the defendant’s voluntarily the State because, only, of form material, is one trial the distinction discovery case at bar in the demonstrated, defendants’ counsel as previously discovery utilize properly himself with and failed to familiarize Court bar, Supreme as the just him. In the case at material furnished attor- Morrison, time Morrison’s “At the in Kimmelman v. concluded and, he because he did discovery, to request any decided not ney not— be. We case would ask, not—know what the State’s did not could Appeals and the Court therefore with the District Court agree was constitu- his trial counsel by respondent the assistance rendered 387, 91 L. Ed. 2d at added.) 477 U.S. (Emphasis deficient.” tionally 327, 106 S. Ct. at 2589. and during before single of defendants’ performance incompe- flagrantly trial in the case at bar joint the defendants’ the defendants’ violated tent, conspicuously vulgarly inadequate the effective assistance rights Federal and State constitutional counsel.

XI THE OF MULTIPLE REPRESENTATION THE SIMULTANEOUS CONFLICTING, ADVERSE, INCON- DEFENDANTS, HAD WHO RIGHTS, AND INTERESTS AND ANTAGONISTIC SISTENT CONCERNS, FEDERAL THE DEFENDANTS’ VIOLATED ALSO THE EFFECTIVE RIGHTS TO AND STATE CONSTITUTIONAL OF COUNSEL. ASSISTANCE and arti States Constitution to the United The sixth amendment defend upon conferred the Illinois Constitution I, cle section was unfet and who not hobbled to counsel who was right ants the N.C. (State Sneed loyalties. tered divided rights constitutional said 867, 869-70.) The defendants’ 201 S.E.2d attor single their were violated of counsel assistance the effective where joint defendants in their of both ney’s representation 649 conflicting, inconsistent, defendants had or adverse con- antagonistic cerns, rights or A in chronological interests. review sequence decisions of the Supreme Court of the United States and the supreme court of Illinois proclaims defines and this constitutional principle. Glasser v. United States 60, 680, 315 U.S. 86 62 L. Ed. 457, S. trial, Ct. a multiple-defendant over the defendant’s objection, the trial court appointed codefendant, his to also represent in spite of notice the trial court that their may interests be conflict- ing or inconsistent. Both were convicted. On the appeal, defendant contended for reversal that his simultaneous attorney’s representation of him and a codefendant during joint their trial embarrassed in- hibited his attorney’s conduct of his defense and him prevented from adequately safeguarding right defendant’s to have incompetent evidence excluded and from fully cross-examining the witnesses for the prosecution. The Supreme agreed held, Court ‘assist- “[T]he ance of guaranteed counsel’ the Sixth by Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired.” (315 70, U.S. at 86 699, L. Ed. at 62 The Glasser court fur- 465.) S. Ct. at that, ther held “To preserve the protection of the Bill Rights hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights” (315 70, U.S. at 86 L. Ed. 699, 62 S. Ct. at 465), that, the trial “[u]pon rests judge duty seeing that the trial is conducted with solicitude for the essen- tial rights of the accused ***. The trial court should protect right of an accused to have the assistance of counsel” (315 71, U.S. at 699, L. Ed. at 62 S. 465). Ct. at

In Glasser, similar to bar, the case at argued certain testimony, him, inadmissible as to was allowed into evidence without objection by his attorney on his behalf because his attorney desired to avoid prejudice to the codefendant. The Supreme Court pointed out that the single attorney “struggle[d] to serve two mas- (315 ters” U.S. at L. Ed. at 62 S. at 467) Ct. during defendant and codefendant’s joint trial and reversed the defendant’s conviction because the attorney’s dual representation denied the defendant’s right have the effective counsel, assistance of guaran- teed sixth amendment. The court concluded that it was unnec- essary to determine if the defendant was prejudiced by his attorney’s joint representation of the codefendant because right to have “[t]he the assistance counsel is too and absolute to allow fundamental prejudice as to the amount indulge courts to nice calculations denial," especially important and that “it arising its from his undivided assistance given be

[defendant] benefit of counsel.” 76, 86 L. Ed. at 62 S. added.) 315 U.S. at (Emphasis atCt. 467-68. Glasser, the codefendant

Although attorney represented the attorney apparently court whereas in the case at bar appointment, codefendant, the hereinafter dis- was retained the defendant and Glasser to out that such subsequent point cussed authorities decided distinction is without merit. in rape robbery

The of three defendants were convicted 426, 98 S. Holloway v. Arkansas 475, 55 L. Ed. 2d 435 U.S. Hall, defender, represent appointed Ct. 1173. Harold a public motions, and repeated all three defendants. The defendants’ several for each counsel Hall, separate for of presented appointment in each of conflict of defendant, of “a of a interest possibility because 477, 430, 98 cases,” 55 L. Ed. 2d at (435 their denied. U.S. at were Holloway in its hold- The out 1175.) Supreme pointed S. Ct. at Court 481, at 55 L. Glasser” (435 in U.S. ago of than 35 ing years “[m]ore single 432, multiple at defendants’ 1177) Ed. 2d at 98 S. Ct. of inter- risk of a conflict probable “focused attorney explicitly or counsel separate The then failed either to judge appoint ests. remote risk was too ascertain whether adequate steps to take *** pe- deprived hold that the failure to warrant counsel. We separate ” U.S. at (435 of counsel.’ titioners of the of ‘assistance guarantee The Court 434, 1178-79.) Supreme at 484, 55 L. Ed. 2d at 98 S. Ct. in Holloway: held additionally a discovering obligation, upon have the

[Djefense attorneys interests, prob at once conflict of to advise courts lem. *** a reversal, absence even in the requires Glasser codefendant, complaining specific prejudice

showing of requires joint or permits improperly whenever a trial court representation.

*** those ‘constitu among is assistance of counsel [T]he can their infraction fair trial tional so basic to a rights as harmless error.’ never be treated *** that a conflict to show a defendant requiring rule [A] *** not fashion would specific him in some prejudiced interests (Empha handed intelligent, application.” be even susceptible 2d at 485, 487, 489, at 55 L. Ed. added.) sis 435 U.S. 436, 437, 438, 1179, 1180, 1181, 1181-82. 98 S. Ct. at reversed, noting, The were the court Holloway convictions interests because of “[j]oint representation conflicting suspect what it tends to from For prevent attorney doing. example, this case it may precluded Campbell well have defense counsel from negotiations and the of an exploring possible plea possibility agreement for the testify prosecution, provided charge a lesser or sentencing Generally favorable recommendation would be acceptable. speaking, challenging a conflict also an from may prevent attorney prejudicial admission of evidence to one client but favor- perhaps another, able to or from at the the rela- arguing sentencing hearing tive involvement and of his clients in order to minimize the culpability culpability by emphasizing one that of another. can be Examples readily multiplied. mere of an does not physical presence fulfill the Sixth Amendment guarantee when the advocate’s conflict- ing obligations have sealed his on crucial matters. effectively lips (cid:127) of joint representation case of conflicting interests the evil—it [I]n repeating bears in what the advocate finds himself compelled —is doing, from only trial but also as to possible pretrial refrain plea negotiations and in the sentencing process.”' (Emphasis origi- nal.) 435 489-90, U.S. at 55 L. Ed. 2d at 98 S. Ct. at 1181-82.

That the multiple-defendants’ was appointed by the court and requested of appointment counsel in separate Holloway, unlike in bar, the case at is no valid distinction for not applying Holloway to the case at bar.

Following Holloway, court of Illinois supreme People decided v. Franklin (1979), 173, 179, 75 Ill. 2d which the court noted did “not the Holloway involve issue of joint representation codefendants,” of rather, but a defense attorney’s representation of a defendant he who had some years prosecuted as an previously assistant State’s Attor ney however, in an unrelated case. The court held “This court has re stated that a peatedly defendant’s fundamental as right effective sistance of counsel entitles the person represented to the undivided of loyalty prohibits counsel and a defense attorney from representing conflicting interests or undertaking discharge of inconsistent obli gations. of furtherance this fundamental this right, [Citations.] court has adopted per se rule provides that where essentially defense counsel is involved in an actual or potential conflict of inter est, it is for the defendant unnecessary prejudice, establish actual as law.” 75 Ill. 2d at 176. prejudice presumed by 652 Franklin,

After supreme court decided Cuyler Sullivan 335, 333, 446 1708, U.S. 64 L. Ed. 2d 100 S. Ct. which in- volved the sixth amendment validity multiple-defend- constitutional of ant at their representation separate State murder trials their same two privately retained without raised in a collat- attorneys, objection, eral habeas corpus proceeding in Federal court. The court of ap- peals held that “a criminal defendant is entitled reversal of his con- viction whenever he makes ‘some of a showing possible conflict of ” interest or prejudice, (446 340, however remote ***.’ U.S. at 64 L. 341, Ed. 2d at 100 S. Ct. at The 1714.) supreme court stated the issue it before was “whether the mere of a of possibility conflict interest warrants the conclusion that the defendant deprived right of his 345, 344, to counsel.” at L. (446 U.S. 64 Ed. 2d at 100 S. Ct. at 1716.) The “[djefense court noted that counsel have an ethical obliga- tion to avoid conflicting representations and to advise the court when a conflict of interest arises promptly during course trial.” 346, 345, (446 U.S. at 64 L. Ed. 2d at S. 1717.) 100 Ct. at Such con- bar, flicts existed in the at obviously case but defendants’ counsel’s in- demonstrates that he too incom- competent performance clearly that, petent recognize Cuyler them. The Court observed under the sixth amend- Holloway, multiple-defendant violates representation ment if right gives to the effective assistance of counsel “it rise to a interest,” conflict of defendant, and that a even he though may have voiced the trial to the any objection during multiple representa- tion, need “demonstrate that an actual conflict of interest ad- only affected his lawyer’s performance.” (446 U.S. at 64 L. versely 346-47, 1718.) Ed. 2d at 100 S. Ct. at Court concluded Supreme in Cuyler:

“Glasser established that unconstitutional multiple represen tation is never harmless error. Once Court concluded interest, lawyer Glasser’s had an actual conflict of refused ‘to in nice to the amount of at indulge prejudice’ calculations as to the conflict. demonstrated a de tributable The conflict itself nial to have the assistance counsel.’ ‘right effective Thus, Ed. at 62 Ct. at U.S. L. S. 457. defend actually ant who shows that a interest affected conflict prejudice his need not demonstrate adequacy representation U.S, at 349- (Emphasis added.) order to obtain relief.” 50, 347,100 64 L. Ed. 2d at S. Ct. at 1719. held that the Cuyler improperly

Because the court of appeals that the multi- to relief because he had shown was entitled interest, a conflict of rather only possible involved ple representation

653 interest, adversely affecting lawyer’s his than an actual conflict of under weigh conflicting these contentions performance, and did not legal standard, Court remanded the cause proper Supreme of appeals proceedings. the court for further 668, 674, (1984), v. 466 80 L. Ed. 2d Washington Strickland U.S. herein, 2052, Ct. previously Cuyler. 104 S. discussed followed Strick- land, however, of multiple did not the conflicts representation involve Rather, sixth right under the to counsel. in- amendment Strickland competency during proceeding volved the of counsel a with guilty plea regard to the sixth right amendment to the effective assistance of counsel. need be here on the Accordingly, Strickland discussed impact single attorney’s a representation multiple defendants with conflicting right interests on the defendants’ sixth amendment the effective assistance of counsel.

After Cuyler, supreme People court of Illinois decided v. (1984), 104, 101 Ill. 2d Washington in which defendant claimed of his sixth right violation amendment counsel he was loyal because represented trial, in his Chicago murder his knowledge ap with proval, by an who was also a attorney prosecutor Chicago Heights, whose police officers testified his adversely to interest at his pretrial motion suppress challenged which validity his arrest them. Although did not Washington involve conflicts out of arising representation multiple same as Cuyler, did neverthe attorney, supreme less the court upon, relied cited from extremely quoted Cuyler in upholding the defendant’s contention. The court held that it “indulge would in every reasonable of a presumption against waiver right,” constitutional Ill. (101 114) 2d at and concluded: “The assistance of counsel means an assistance which entitles accused to the undivided his loyalty pro counsel and which hibits the from attorney representing interests or conflicting undertaking the discharge of inconsistent v. obligations. (People Franklin Ill. (1979), 173; 2d People Kester 66 Ill. (1977), 162; 2d People v. (1968), 109.) Stoval 40 Ill. 2d In order to as and protect rights, sure these the defendant need not show in order to of his if the prejudice justify reversal conviction representing him has or possible an actual conflict of professional (1942), interests. Glasser v. U.S. United States 86 L. Ed. S. Ct. 457 ***.” 101 Ill. 2d at 110. Washington court noted that v. Stoval 40 Ill. People the defendants’ as a court-appointed lawyer, individually firm, of a member law had previously represented corporation owned, of, and the store operator jewelry that the defend- 654 reversing

ant In the con alleged burglarized. defendant’s viction the court stated that was concerned the subliminal ef by public fects of the conflict on counsel and held that sound policy pro an such a conflict of representation by attorney possible hibits with Washington interests. The court that in Stoval the further observed stated a “there is no neces court cited Glasser and that in such case Ill. at sity (Washington, for the defendant to show 101 2d prejudice” per and that Stoval was referred to as a se rule in establishing 110) Ill. 2d (1977), Cuyler, v. Coslet 67 127. Then from People quoting in Washington: court concluded

“The that not per State contends we should our se rule apply light conflicts of interest in of ***. The Cuyler State, test, in us not to se urging apply per so-called but conflict’ in the fact that adopt Cuyler ‘actual test overlooks *** of Cuyler multiple representation involved defendants. one represented by cases where codefendants are attor jointly ‘an of ney, a defendant must demonstrate actual conflict inter of est at trial’ to claim a denial effective manifested order of counsel. When an actual has assistance [Citations.] conflict shown, prejudice been it is to demonstrate in or unnecessary to the assistance right der to sustain a claim violation of 475, L. (1978), counsel. v. Arkansas 435 U.S. 55 (Holloway of Ed. 2d 426, 1173; (1942), v. United States 315 98 S. Ct. Glasser 680, 457; 60, (1968), 86 62 Ct. v. Stoval People U.S. L. Ed. S. Ill. added.) Ill. 2d 101 2d at 109.)” (Emphasis Washington, 40 112. the defendant’s

Following Supreme Illinois Court’s reversal of trial, for a in Washington conviction remandment new State certiorari, petitioned Supreme States Court a writ United 1022, (1984), v. 469 U.S. 83 L. (Illinois Washington denied. from the 367, 422.) 105 dissented denial S. Ct. Justice White Ed. 2d Berger Chief opinion, a in which Justice certiorari written dissenting opinion signifi Justice Rehnquist joined. Justice White’s 335, 64 446 U.S. Cuyler (1980), that v. Sullivan observed cantly “[i]n 1708, held in order estab L. 100 Ct. this Court that Ed. 2d S. his violation, attor challenging lish Sixth Amendment a defendant a that the must establish ney’s multiple representation [defendants] interest, an actual conflict performance by was affected attorney’s case, Washington In the v. [People one. merely potential present that Cuyler’s Court held 104,] Supreme 101 Ill. Illinois multiple-representa limited to standard was actual conflict-of-interest contrary holding Because tion situations. [Citation.]

655 courts, results I reached at least six other dissent from the denial (469 of certiorari.” L. at S. at U.S. Ed. 2d Ct. J., (White, After further dissenting).) noting dissenting his opinion the Illinois held in Appellate Supreme Courts had Washington that the defendant was denied his sixth amendment right to the effective assistance of counsel of his con attorney’s because interest, flicting Justice stated: White

“The Illinois Supreme longstanding Court adhered to the view that as a matter constitutional law even a po- of federal tential reversal, interest required rejecting conflict of State’s contention that Cuyler Washington Sullivan required to show that his had attorney’s performance adversely been af- fected an actual conflict of interest. .

Unlike the Court, Illinois Supreme numerous federal courts have failed to discern in Cuyler any limitation to cases involv- ing multiple representation of defendants. Most of [Citations.] these courts have simply applied Cuyler to non-multiple-repre- sentation situations without even the considering possibility did not apply.” (Emphasis added.) 1023, 469 U.S. at 83 368, L. Ed. 2d at 105 S. Ct. at (White, J., 442-43 dissenting). Unlike Justice White in I do Washington, not read or interpret the Illinois Supreme Court’s decision in Washington holding: as (1) “that as a matter constitutional law potential even a con of federal required interest a reversal”; or (2) that the Illinois Supreme flict of Court in Washington rejected “the State’s Cuyler contention that Sullivan required Washington to show that his attorney’s perform ance had been adversely affected by interest,” an actual conflict of as does Justice White. (Emphasis added.) 1023, at U.S. 83 L. Ed. 2d 105 S. Ct. at 443 (White, J., dissenting).) Indeed, I interpret Washington quite contrary.

The Illinois Supreme Court expressly held in Washington that where multiple defendants are represented one attorney, “a defendant must demonstrate ‘an actual of interest manifested conflict at trial’ in order to claim a denial of counsel,” effective assistance of and that when such “actual shown, has been it is unnecessary conflict to demonstrate prejudice in order to sustain a claim of violation right to the assistance of counsel.” Washington, 101 Ill. 2d at 112.

In People 21, 24, v. Jones 121 Ill. 2d court supreme stated that consolidated present causes the question whether “[t]hese joint representation defendants establishes a sixth amendment claim of denial of the effective assistance of counsel when it is alleged that the admission of inculpatory inconsistent pretrial statements interest.” It must be borne created a conflict of

from each defendant contend that all of in the case at also in mind that the defendants bar of their incompetencies inadequacies set forth the hereinbefore of their a denial and trial establish pretrial performance counsel’s counsel, amend- under the sixth the effective assistance rights to Constitution, and also that I, the Illinois ment and article section interests at their conflicting with their joint representation their of the defend- established a violation likewise attorney same of counsel to the effective assistance rights ants’ said constitutional committed counsel. folly and to dedicated and loyal, with armed rob Jones, jointly charged In and Harris were Jones who, defenders, the su two represented by public Both were bery. de stated, as a team on Harris Jones’ court “worked preme not disclosed each why out pointing fense.” After “[i]t defendant,” the supreme an individual represent did not admonished, such should be noted that adamantly court then “[i]t severely (See has been criticized. United States joint representation n.9.)” (Em 752 F.2d (7th 1985), rel. v. Lane Cir. ex Cole 121 Ill. 2d at 24-25. added.) phasis state- Jones, Attorney pretrial State’s who took assistant content at their trial to the joint each defendant testified

ments from Harris’ inculpatory. Jones’ statement was of each of their statements. in the the inconsistencies not. The trial court noted statement was attor- joint them to the attention of their statements and called two con- recognized gravity that he had not who ney, responded asked defense Thereupon prosecutor flicts in the two statements. of the conflict. The defendants’ nature explain precise counsel con- do so. In defendants’ clearly affirming counsel was unable to out: victions, significantly pointed court supreme sua the trial sponte by a conflict was first raised issue of “[T]he an as- by read into evidence Jones’ statement was court after discussion, ensuing bench During Attorney. State’s sistant recog- not acknowledged previously that he had counsel defense Defense the statements.’ the conflict in ‘gravity nized only planned he ‘had point that at that went on to state counsel proceeded As the trial testify. on one’ defendant on putting in- earlier statement his testified, repudiated and he Jones only ex- Harris’ corroborating gave testimony Harris and culpating People’s of the At the close statement. post-arrest culpatory if for mistrial counsel to move case, invited defense the court re- proceedings was When present. a conflict they thought mistrial, but defense counsel moved day, sumed the next based the motion largely on certain of the surprise testimony to, victim. While the conflict issue obliquely referred coun- sel conflict, failed to articulate the nature of the motion for mistrial was denied. record,

Based this upon we find that the actions and com- ments of defense counsel were insufficient assertions of a con- flict of interest to merit Holloway reversal under ***. *** counsel did seek severance or appointment [D]efense of separate Moreover, counsel. potential conflict was raised the trial only by court sua sponte. Finally, given when an op- to seek portunity conflict, mistrial on the basis of counsel was utterly unable articulate how its defense strategy was inhib- *** ited or even affected alleged conflict. *** Where the record presents no indication defense of either codefendant was degree inhibited to because of any the joint representation, a reversal of a conviction is not re- quired. [Citation.] *** conclude that there was no conflict present here [W]e *** which adversely affected Harris’ representation ***. [I]t clear that defense counsel were unaware of even the possibility of a conflict until the court called their attention to it. After matter, discussion of the defense counsel chose pursue their original ***.” plan (121 Ill. 2d at 28-30.) Jones utterly fails to validate the attorney’s disloyal joint representa- tion of the multiple defendants in the case at bar.

People v. Ross and People v. were Mosely consolidated before the supreme court in Jones. Ross and were Mosely charged with the rob- bery-murder of a pizza deliveryman. their separate state- pretrial ments each admitted his involvement as a lookout but attributed the actual murder to the other. At trial Ross and Mosely were repre- sented the same No attorney. severance motion was made. Defense counsel, in statement, his opening briefly commented that the defend- ants’ statements were merely “inconsistent.” his During presentation defense, defense counsel urged that both defendants’ state- ments were coerced and that neither defendant had been involved the shooting. Mosely so testified. Ross did not testify. Both were con- victed. The court appellate reversed. The supreme court concluded: find that a conflict existed which was re- apparently

“[W]e solved to Mosley’s detriment. therefore We find that Mosley counsel, denied effective assistance of and affirm the ap- pellate court as to Mosley.

* * * *** used but against Mosley, Ross’ statement was inculpatory Thus, damaging testimony trial. this testify Ross did not at and We unrepudiated unimpeached. the fact finder went before decision not to as to the reasons for Ross’ speculate need that did not to operate It is to decision testify. enough say conflict, benefit, perhaps that counsel with no and Mosley’s If trials, differently. surely proceeded would separate no con counsel with repudiated, Ross’ statement was not be it. therefore sought impeach at least We flict would have manifested itself at a conflict of interest arose which find that in of Ross’ The evidence Mosley’s presence trial to detriment. to con Mosley’s right violated implicating Mosley statement 123, Bruton v. States 391 U.S. United (1968), (See frontation. The of 476, 1620.) joint representation 88 S. Ct. 20 L. Ed. as to in one trial created a clear conflict the two defendants 32, ***.” 121 Ill. 2d at 33-34. Mosley and clearly in the case at bar detailed circumstances The hereinbefore of these defendants the defenses affirmatively indeed establish their inhibited, representa- and because of restricted conflicted were incompetent. was also attorney, tion the same who by disloyal the Illinois of interpretation aforesaid Whether Justice White’s Cuyler the sixth and application and Supreme analysis Court’s in Washington of counsel to the effective assistance right amendment ex Court Supreme of the Illinois in with the actual views is accord White, Illinois courts therein, Justice misapprehended by or is pressed Illi their own similar right interpret certainly have a and duty 1970, (Ill. to counsel Const. right nois constitutional guarantee that in all criminal I, prosecutions, It is therein §8). provided art. in person by and defend right appear shall have the accused provisions Illinois constitutional may interpret Illinois courts counsel. provi similar Federal constitutional rights than confining greater as Court. sions, Supreme the United States as interpreted VI, 6, 298, article section Cleve 89 Ill. 2d People Van “that af Constitution, pertinent part provides Illinois case, appeal there shall be no on the merits a criminal ter a trial in 1970, VI, §6) art. (Ill. Const. acquittal” judgment from a guilty his codefendant Cleve and found Van jury volved. After aside the verdicts restraint, trial court set and unlawful rape The notwithstanding the verdicts. acquittal judgments entered I, that article section out pointed court supreme State The appealed. jeopardy, double prohibited expressly of the Illinois Constitution offense.” for the same jeopardy twice person put “No shall be (Ill. I, held, Const. art. “It reason §10.) supreme court VI, able to conclude that the Constitution’s in article section provision provide rights was to those assured protections beyond double clause. consider that was intended jeopardy provision We to here, to the of- apply type judgment of we have where acquittal there will not abe retrial of the defendant and therefore no involve ment Cleve, of the jeopardy double clause.” Van 89 Ill. 2d at 306. 213, 527, Illinois Gates 462 U.S. 76 L. Ed. 2d 103 S. Ct. after expressly the rejecting Aguilar Spinelli two-pronged — “veracity-reliability” tests, “basis of a knowledge” adopting new “totality of the approach circumstances” in determining whether probable cause warrant, existed for the issuance of a search Justice Rehnquist, behalf of the majority, regarding five-member the court fashioning “good-faith” exception rule, modifying exclusionary stated:

“Likewise, ‘due regard for the appropriate relationship of this Court to courts,’ state demands that those courts [citation] be given an opportunity to consider the constitutionality actions of officials, and, state equally important, proposed changes in existing remedies for unconstitutional actions. Fi- nally, by requiring that the State first argue the state courts that the federal modified, rule exclusionary per- should be we court, mit a state even if it agrees with the State as a matter law, of federal to rest its decision on an adequate and inade- quate ground. state Illinois, for an example, adopted [Citation.] exclusionary rule as early as 1923 [citation], might adhere to' its view if even it thought we would conclude fed- eral rule should be modified.” (Emphasis added.) U.S. at 221-22, 537-38, 76 L. Ed. 2d at 103 S. Ct. at 2323.

Justice White stated in his concurring opinion in Gates:

“The Court correctly notes Illinois choose to may pursue a different course with respect state rule. If exclusionary this Court were to ‘good formulate a faith’ exception rule, federal exclusionary the Illinois Court would be Supreme free to consider on remand whether the state rule exclusionary *** should be modified The accordingly. Supreme Illinois Court found not only violation of the Fourth Amendment but also of I, §6, article Constitution, of the Illinois which also provides against assurance unreasonable searches and seizures. Illi- nois Courts given should be opportunity consider first instance whether a ‘totality of the circumstances’ test replace should the more precise Aguilar rule of and Spinelli. decide to retain the estab- may Court Supreme The Illinois just easily as the State Constitution purposes lished test rule.” exclusionary an could to retain as it decide unmodified 251, 252, 76 L. Ed. 2d added.) 462 U.S. at (Emphasis J., (White, concurring). 557,103 S. Ct. at 2339-40 People v. Exline Gates, the Illinois Court decided Supreme After allega whether the 150, in the sole issue was (1983), 98 Ill. 2d which cause probable established in an affidavit for a search warrant tions thg held that alle for the issuance of a search warrant. majority Goldenhersh, dissenting,-stated: were sufficient. Justice gations did majority the case is another aspect “There on the court decided Gates basis not consider. This States and of the United amendment to the Constitution fourth Illinois. As was 6, of the Constitution of I, article section White’s and Justice majority opinion out in both the pointed Gates, required blindly we are concurrence follow the stand determining Court Supreme action taken In his eloquent own Constitution. under our applicable ards than can stated far better Gates, Justice Brennan has dissent in *** and standards enunci retaining the tests I the reasons for those tests and I would retain Spinelli. ated in Aguilar (Empha in Illinois.” requirements standards as constitutional J., dissenting). (Goldenhersh, Ill. at 157-58 added.) 98 sis in Tisler 226, followed Exline. 103 Ill. 2d (1984), v. Tisler People arrest, he of the defendant’s validity the constitutional volved to the ruling adversely cause. In probable was without contended stated: issue, additionally court supreme defendant on this citizens afford its may out that Illinois points “[Defendant the United States by that provided than greater protection *** Constitution. *** Il- I, 6, of the 1970 section asserts that article Defendant than ei- rights more individual guarantees linois Constitution to fourth amendment or the ther the former State Constitution *** the Federal Constitution. *** no manifested intent convention constitutional] [1970 the fourth by afforded the nature of the expand protection *** fourth of the amendment Federal Constitution. [T]he is direct and to the Constitution amendment United States the Illinois Consti- lineal of the afforded protection ancestor designed to protect were tution. Both constitutional provisions *** against same abuses. that stem from the With respect requirements the basic constitution, that the of our this court has considered language the same restrictions. impose State and Federal constitutions People v. Greer 89, 92, 87 Ill. 2d (1981), both [Citation.] People v. Gates 376, 381-82, this court re 85 Ill. 2d ferred to of the fourth amendment protection both I, Federal Constitution and of article section of the Illinois *** against Constitution of 1970. unreasonable protection [T]he searches under the Illinois Constitution measured same standards as are used in defining protection against unreasonable searches contained in the fourth amendment the United States Constitution. *** may Court construe these terms as contained in [TJhis our constitution differently the construction the Supreme from placed Court has on the same terms in the Federal Constitu- *** tion. has, court in the past, construing provisions [T]his constitution, of our elected follow the decisions of the Su- preme Court rendered in similar construing provisions of the Federal Constitution. ‘We have indicated before we will follow the decisions of the United States Supreme Court on identical State and Federal constitutional problems.’ [Citation.]

* * * We must constitution, find in the language our or in the de bates and the committee reports constitutional conven tion, something which will indicate that provisions our. constitution are intended to be construed than differently are Constitution, similar in the provisions Federal after which they are patterned.” (Emphasis added.) 241, 242-43, 103 Ill. 2d at 244, 245.

Justice Ward meaningfully remarked in his concurring opinion in Tisler that at a national conference on the development of State con law, stitutional co-sponsored by Conference of Chief Jus tices, The National Center for State Courts and the Marshall-Wythe Law, School of the American Bar Association held an appellate judges seminar, entitled, Constitutions,” “The Use of State which addressed “questions such as whether State courts reach different conclu may sions under State constitutions from those the Court has Supreme and, reached under the Federal Constitution in the of differ event ence, which shall prevail.” (Tisler, J., 103 Ill. 2d at (Ward, 253 con curring).) Justice additionally Ward noted “that a State court is free to interpret its constitution as it wishes as long as its is interpretation not more restrictive than the interpretation Supreme Court has given of parallel provisions States,” the Constitution of the United give constitution is to ascertain court, in interpreting

and “a citizens who have of it and the the intent of the framers effect to Jus J., concurring).) Finally, (Ward, 2d at 253-54 (103 it.” Ill. adopted del the constitutional that, holds that majority noted tice Ward “[t]he afforded expand protection manifest an intent did not egates Constitution, provi to add other than to the the fourth amendment pri and invasions eavesdropping against sions giving protection J., concurring). (Ward, at 254 103 Ill. 2d vacy.” Tisler, in concurring opinion also authored Justice Clark have that, in the we past because stated, agree “I cannot which he that our and to make sure guidance Court Supreme looked Federal require the minimum least citizens have been afforded the Su Constitution, adopted have in essence we ments under Con of the Federal amendment any interpretation Court’s preme of our own provisions of similar our interpretation stitution as inter this court prevents nothing constitution. There is from similar than greater protection affording our constitution as preting Ill. added.) (103 Federal provisions (Emphasis Constitution.” stated, majority’s “I further believe Clark 258).) 2d at Justice inter limits our power dangerous because stance on this issue *** the majori Under in the future. our own State Constitution pret the civil protecting from precluded court would be this ty’s analysis, Court Supreme States should the United Illinois citizens liberties of the ac rights over police efficiency favor consistently decide to J., concurring)) and concluded: (Clark, cused,” (103 Ill. 2d at cutting has been Court Supreme States “Today, United *** courts supreme State while on the individual liberties back constitutions. in State civil liberties attempted protect [Citation.] history has a long independence judicial

This tradition of schools public prayer a court that banned Illinois. This is Court Supreme States the United years [citations] before States the United rule decades before exclusionary adopted to the States this rule applicable held [cita- Court Supreme is co-exten- Thus, that the Illinois Constitution the idea tions]. theory is a recent States Constitution the United sive with this court. prior in the decisions of support without jurisdictions that have considered majority [A] provide that State constitutions can have ruled question Con- of civil liberties than the United States greater protection stitution.

* * * 663 *** disagree I with majority’s belief must find ‘[w]e something which will indicate that the provisions of our consti- tution are intended to be construed than are similar differently in the provisions Federal Constitution.’ [Citation.]

* * * Justice Brandéis noted that our system government allows States a certain degree of latitude in running their own affairs. I prefer this latitude to the crushing degree uni [Citation.] formity by advocated the majority.” 260, 261, 103 Ill. 2d at (Clark, J., concurring).

Justice Goldenhersh Tisler, dissented in in which Justice Simon joined, stated, “I state my concurrence with the views expressed by Justice Clark concerning this court’s interpreting our constitution to afford greater protection than do purportedly similar provisions of the Federal Constitution. As I said in dissent in my People v. Exline (1983), 150, 157, 98 Ill. 2d ‘we are not required blindly follow action taken by Supreme Court in determining the ap standards ” plicable under our own constitution.’ (Emphasis added.) 103 Ill. 2d at 263-64(Goldenhersh, J., dissenting, joined Simon, J.).

On its authority indeed its duty to interpret rights guarantees provided in the Illinois Constitution unconfined by the United States Supreme Court’s more restricted interpretation which further limits rights such under similar provisions of the United States Constitution, Justice Stamos, speaking for a five-member ma jority in People v. Duncan (1988), Ill. 2d eloquently pro claimed: is clear that the Illinois courts have for

“[I]t about a century warily approached the admissibility nontestifying codefend- ants’ statements and have done so quite of the independently Federal constitutional doctrine underlying both Bruton and Richardson. times, early Illinois case law has [F]rom evolved without reliance on the sixth amendment to the Fed- eral Constitution inas Bruton and has made the oft-repeated observation, grounded fairness, simply that the incrimination of a defendant by admission into evidence of a nontestifying co- defendant’s statements incompetent against defendant, ' even when the jury given limiting instruction, is ‘very dam- aging’ to the first defendant because ‘it is very difficult for a juror himself, instructions, divest under from the illegitimate effect of such evidence.’ [Citations.]

* * * Rarely have our decisions on this general subject felt it nee- they and when authority, cite constitutional law as essary to language from their choice of have done so it is evident Federal Con- rather than the to the Illinois they referring were had Indeed, surprising it would been stitution. [Citations.] Consti- on the Federal its rule professed our court base early that that amendment, not until 1965 since was tution’s sixth was au- of confrontation right of the guaranty amendment’s on the States virtue obligatory held to thoritatively be v. Texas 380 U.S. See Pointer fourteenth amendment. 400,13 923, 85 1065. L. Ed. 2d S. Ct. the Illi- to which event, any degree of regardless

In any incongruent may of confrontation be right nois Constitution’s long-es- our Constitution’s, need not find Federal we with the on the Illinois Con- expressly to Illinois rule be based tablished as an in the case at bar to serve stitution in order for rule the Federal consti- decision, of independent of adequate ground in Bruton and Richardson. recognized tutional doctrine [Cita- inherent of authority in the Our rule has sufficient basis tions.] of for the assurance the law of evidence our courts to announce of our and concern long-expressed and in fair trials [citations] ***. courts Anglo-American of other at a [Olinger’s] of statements addition, the admission defendant, to all references trial, a total deletion of absent joint Bru of independent case law that is Illinois violated established 124 Ill. 2d at 413-15. doctrine.” ton-Richardson constitutional Duncan, in in Miller, concurring opinion specially in his Justice Stamos’ concurred, with Justice disagree Moran did not Justice concluded in Duncan. Justice Miller simply aforesaid pronouncements answer a sufficient that, Federal law provides “[b]ecause on that of disposed be controversy may and the defendant’s claims to determine whether alone, in this case necessary it is not ground J., (Miller, Ill. 2d at 416 protection.” law provides greater State Moran, J.). concurring, by joined Illinois con of interpretation latest

The Illinois Court’s Supreme con those than conferring greater rights as provisions stitutional by interpreted as provision, constitutional ferred a similar Federal by ex rel. People in Court, are pronounced Supreme States United statute, sec Illinois Joyce, an 209. In Daley Joyce (1988), v. 126 Ill. 2d 1987, Rev. Stat. (Ill. Procedure of Criminal of the Code tion 115—1 to a right the State 38, upon in effect conferred 1), ch. par. 115— I, section Article cases. narcotics violation alleged trial in certain jury I, 1970, §13) pro- art. (Ill. Const. Illinois Constitution 13, of the 1970 re- enjoyed trial as heretofore shall right by jury vides that “[t]he S. de- judge, Joyce, main inviolate.” The trial the Honorable Donald the ground nied trial under 115—1 on that jury the State a section to trial said section constitutional a right jury violated defendant’s to his to The State and his concomitant waive trial right right by jury. to its re- requested supreme compel Judge Joyce grant court to quest supreme request a trial. The court denied the State’s jury and noted to right jury guaranteed by pro- trial similar by Constitution, amendment, visions the Federal the sixth and the Constitution, I, State article section 13. The court noted fur- supreme Procedure, ther 23(a) that Rule of the Federal Rules of simi- Criminal lar Procedure, to section 115—1 of the Code Illinois of Criminal also government right effect conferred upon criminal cases a trial and that by jury 23(a) Federal Rule was held the United States Court Supreme be nonviolative sixth defendant’s Singer United States amendment trial jury right U.S. 13 L. Joyce urged Ed. 85 S. Ct. 783. State in same interpretation of the similar provision Constitution Illinois the Illinois Court. The Supreme rejected court the State’s argument, so, declined to do and in holding conferring section 115— the State a jury right, violated defendant’s Illinois constitu- right tional to a trial and his jury right waive such stated: right, however,

“This analysis, is not court’s limited Federal con stitutional If principles. we find in the language our constitu tion, or in the debates or committee reports the constitu convention, tional an indication that a our provision of is constitution intended to be construed than differently similar Constitution, of provisions the Federal then this court should not or follow be bound the on the by placed construction Fed eral constitutional See People Tisler provision. (1984), 103 Ill. 226, 2d 245. * * *

*** give should our State provision constitutional [W]e meaning independent of the construction courts the Federal have placed on the jury provisions of the Federal Constitu tion.” Joyce, 213, 2d Ill. at 214-15. Joyce

Justice Clark’s concurrence in eloquent. was magnificently He stated:

“I know debates, of no evidence —either in the the convention explanations given to voters, the ratifying or in the committee reports the proposition that of our Illinois Constitution —for 1970 was intended to be in construed some the not instances but, instead, of Supreme the Court supreme court of Illinois *** States. United 4»

*** of provisions As to our State constitutional many —in- has a tradition of long as to most of them—our court lib- deed *** rights. eral in the of individual construction service *** pro- that similar State and Federal assuming Instead of assume simply are to construed we could similarly, visions be are to in- provisions that all State constitutional be construed origi- in [Emphasis dependently counterparts. of their Federal I do not mean that State constitu- By ‘independently’ nal.] or every given must in instance be broader provision tional All I as to our State more construction. mean that liberal are stare precedents Federal not de- provisions, constitutional *** cisis. Bill of and the Rights, the existence of Federal Given clause of fourteenth application, through process the due States, amendment, there guarantees of its bulk into writing guarantees any parallel would be little point inter- if were never to be guarantees State constitution those *** including parallel guarantees broadly. By more preted constitution, were, it and ratifiers seems our State its drafters message. The was that me, message they a clear sending protection’ only that State constitutional wanted ‘double our State consti- guarantees They could did want provide. they But at interpreted broadly every more instance. tution seven knowing justices security least wanted constitu- every important this would to bear on bring court wisdom, judgment, independent tional issue their resources *** and experience. *** has held that our constitutional The court now State [citation], rights process broader due protection provides Ill. v. Duncan (People trial and jury confrontation punishment and freedom from cruel and unusual 400), [cita provides It is also possible tion], [Emphasis added.] right against for the self-incrimination. greater protection [Cita which favors a remaining of authority clear line only tion.] lockstep See, e.g., search and seizure. construction involves Ill. 126 Ill. 2d (1984), 103 2d 226 ***.” v. Tisler People J., (Clark, concurring). 226-27 of the to the Constitution the amendment fourteenth of the United the people to confer all adopted upon United States binding upon and to make privileges, and rights, guarantees States the contained in the obligations limitations and prohibitions, the State the States, of the amendments to the Constitution United eight first States suc- Court of the United Rights. Supreme Federal Bill of rights prolonged of these aby cessfully delayed implementation the fourteenth amendment. Nev- interpreting and outright hostility amend- ertheless, there is no valid doubt that fourteenth presently Bill of Rights ment the cherished Federal constitutional now confers denied them and it previously prohibits on those who were persons rights. Supreme these Because of the transgressing States from however, it has taken procrastinations, Court’s and interpretations in- over for the fourteenth amendment to this accomplish 100 years tended desired result. For State courts their own by interpretation and of their State constitutional restrict con- provisions own now State rights interpretation right stitutional to an of a more limited by Supreme provi- United States Court of similar Federal constitutional sion would be a most undesired and ill-conceived aberration. Glasser, Franklin, Holloway, foregoing

Under the authorities of Strickland, Stoval, Jones, Cleve, Gates, Cuyler, Ex- Washington, Van line, Tisler, Joyce, Duncan and in- may it is clear that Illinois courts construe, and I and terpret interpret rights and do construe the of counsel, I, defendants in the case at guaranteed by bar article section of the the sixth (and Illinois Constitution amendment to the Constitution), United States their by attorney’s have been violated them, multiple representation performance because his behalf each of them affected adversely by an actual conflict of interests defendants, him, between the and between the defendants and and therefrom, the defendants need not have al- prejudice shown though they have done so. abundantly

It is deficiencies also clear from the various trial and inadequacies herein, that he did not attorney, defendants’ as set forth previously from his total give, giving, and indeed he was absolutely prevented commitment, his and his dedication to unswerving loyalty, unyielding protecting, rights and interests each pursuing enforcing their on the authori- during joint foregoing trial. Predicated ties, right the defendants’ assistance of counsel guar- effective anteed sixth amendment to the Constitution the United States, amendment, binding made on the the fourteenth States I, right defendants’ article section provided counsel Constitution of the The defendants’ State of Illinois were violated. to a convictions should therefore are entitled they be reversed new trial. I Accordingly, dissent.

APPENDIX VICTIM, THE A.W.’S STATEMENT EXHIBIT PEOPLE’S NO. 1 “April of 1984—that night pants, light green with a top —blue —ex- 12:15—when I left actly the room 3:15. I Wednesday before was from school. It on day suspended was —The I Thursday when was for suspended fighting. She was on the toilet when she called me in there. It was same night bought my she me Easter clothes and a coat. That night she called me down she was drunk too. She said I want to you A.W. do something I never asked to do before. Please she anybody A.W. said, said. Then ‘Moma love I was at the of 13 in the 8th you.’ age grade. She said will do it. But she didn’t tell me I said o.k. you what. toilet, I’ll do it. Then she flushed the and she said come got up now with me. her opened daddy just lying She bedroom door and was there naked clothes I looked. don’t scared with his off. She said be we won’t hurt I I you. said ‘What.’ She said take off was your clothes. holding like, shirt I I couldn’t my greenish light. real was shock. believe what had I I Then happened. really thought going crazy. she said that’s I to lie and I on men- alright. my even tried said am struation. She I out of open get said that’s o.k. tried to door and there but she held the door and went Before my down clothes. she told me to to up my have sex with her husband she told me roll _I had. Then she said now come over here. I didn’t know what the hell I was I it Then I doing. happened. wish hadn’t laid down legs he told me to wide and he some open my open rubbed vaseline I hated it. I him. then it I my vagina. happened. even hated And open my legs enough. kept saying wouldn’t wide That’s all she open to I to try cherry. go bust her Then about 12:40 she said have bought pepsi washroom. I’ll be she came she some back. When back said, she with her. me did I want I said no. Then any back She asked like. you on the get something anything ‘A.W. radio.’ She said try to Going I You singing turned the to WJPC. Lou Rawls was on radio That time down. lay Miss Then she instructed me to back Loving. My Then she my on breast. sucking she arm while he was holding my I still wouldn’t her. And on her. Just play said don’t so hard with be He said I said no. good. me didn’t it act he asked feel right. Then I will the weekend Then over you. nice to she said we’re to going be your me and he said Then say anything. I didn’t let you sleep longer. you. for typewriter going buy still to We’re moma you. we love going we’re Martin, Arkansas move to Then we she said when working for there. I place pay you our own and we’ll barbeque if I take care of for me. you daddy A.W. die would say nothing. didn’t I I I I was scared. Then she said A.W. just said But knew won’t. yes. me over. him and doing right. Then she made move While you some of those out on the boys her did it. Then and he said they stop get nice as I am. Then she said can’t going daddy street are not be I Then say anything. had an still didn’t you pregnant. operation. He Then said are you ready go said A.W. we love she they again you. me to clothes and I put my to bed. I said I am. Then she told yes me. Then she said A.W. thank went to the bathroom. She came with you She me. Me and her were both naked. She said A.W. you. hugged I age. have a She started to feel on me and shape your beautiful think I am a do I said you you. moved from her. She said don’t freak I so thankful did that for me. Then she you no. Then she said am I going Goodnight. kissed me and said am bedroom.

I I started to run Then I said no I crying. away. went to bed go. morning got can’t. I no where to The next I for up ready keep school. She came She said A.W. if want to I’ll upstairs. you you home and let I said I’ll to She you sleep. go you school. said A.W. promise you’ll nobody happened night. never tell what last I said I I promise. you. going She said thank still love She said I am to you. to Then me and the try get typewriter you. other kids at I to and into a got fight girl breakfast. went school with this and got for 2 The home suspended days. assistant call he said I’ll sus- be for 2 and I came home. She pended days Thursday Friday. said o.k. — go A.W. can over Mrs. Gross he’s mother house with Karen. Because I go both them had to somewhere. don’t know where we rode over there he in and left there. hour they came us Then about later IV2 came to a It place. up back. We went bread Picked some bread. go about 2:30 he came in the house. He said o.k. I have to somewhere else. He can let Karen in the frontroom and the said she watch T.V. fix them other kids come home and a and they peanutbutter when give come home. Then he said a kiss for me jelly they daddy when I He o.k. then left. About 15 min please. said no. said she called and all I said She you pick up yes. said did bread. said how do feel you I said I feel sore. She said a little vaseline She your legs. rub between he. I said he yes said he didn’t mess with did asked me for a kiss. you I I said no. She said o.k. I’ll at him. told him to alone. get you leave feeling since that I had a hateful toward them that I

Every day it IMay. hated. She even tried to make me do of times couple it I said no. The last time she said she me to do said pay would $10 I an no. Then she him to room. had on abun- brought upstairs my dance of clothes. I knew I would them that I get time. had on a short bottom, set connected with a top, pajamas my night gown and a robe. She tried to them off make get again. and me do But found she so couldn’t she left. since that we each

Every day got along never with other.”

APPENDIX 2NO. COMPLAINT FOR SEARCH WARRANT “I, Youth Officer J. Lux No. 8027 a Police City Officer of the Chi- cago one, had an occasion have a conversation with F/B/ 14 A.W. yrs regarding Aggravated evidence commission of Criminal As- sault, Aggravated Battery Aggravated of a Child and Assault her mother, Emmaline adoptive apprx [age] WILLIAMS F/B 43rs and Damen, at 6544 S. Chicago, County, single Cook Illinois which is re- family dwelling only dwelling and such at that location. A.W. lated that on 15 JUNE 1985 at 1:00AM she in the apprx family home at 6544 S. Damen the kitchen floor. Her mopping adoptive stated, mother Emmaline WILLIAMS entered the kitchen and ‘You took all the shine off the floor—I’m At gonna you.’ beat the shit out of this time the mother Emmaline adoptive repeatedly WILLIAMS struck the girl about the face and shoulders marks on causing visible face, the girl’s neck and shoulders. Shortly adoptive thereafter mother the girl pulled took A.W. the arm and her into the bath- adoptive girl gonna you room. The mother told the that I’M check out WILLIAMS) on her put petroleum jelly (Emmaline finger middle girl pull pants. girl began protest told down her The (adoptive) Roy father WILLIAMS walked into the bathroom. mother, then into the adoptive pulled girl Emmaline WILLIAMS time bedroom and ordered the down on the bed. At this girl lay mother, Emmaline girl, protested. A.W. ***. Then the WIL- adoptive LIAMS the with same until girl took a brown wooden cane and struck the on the is in the mother’s bed- girl layed adoptive down bed which down her girl pull mother then the adoptive room. The ordered hand WILLIAMS’) (Emmaline then insert her pants attempted struck with the again The and was vagina. girl struggled into girl the legs upon her apart girl spread mother. The then adoptive cane the finger her mother inserted mother’s command and the the adoptive she The related that girl vagina for several seconds. girl’s into the afraid, I can’t ‘Don’t be adoptive the mother stated cried and that mother adoptive the girl man.’ to the According not a I’m you, hurt floor, the kitchen mopping finish get up go girl then told the this using time clear water so as not to ruin the shine.

The girl related that she then returned to the kitchen and that shorty thereafter the adoptive mother also returned to the kitchen. The girl then related that she bulge could see a in the moth- adoptive er’s pocket girl which the similarly past seen numerous times the and that she bulge A.W. identified that as the gun. mother’s Accord- ing to the girl the mother then pulled gun which she described as a blue steel pointed revolver and weapon girl several moments as if to girl shoot the with the weapon. The then related girl stated, mother then T don’t need this gun for and them you,’ put the gun back into her pocket. The mother then picked up kitchen knife and held same over her shoulder if a manner as throw same at girl. Tanna BURGIN F/B/apprx 20yrs age who is a daughter to the adoptive mother, WILLIAMS, Emmaline then yelled from her bedroom kitchen, which is adjacent ‘Don’t cut that girl.’ The mother adoptive put down the knife and returned to her bedroom and the girl (A.W.) resumed cleaning kitchen floor.

The girl (A.W.) through her old foster-mother reported the inci- dent to the Dept, Children & Family Services. Child hotline Abuse and undersigned Officer was Upon notified. hearing girl’s story undersigned Officer took the girl to Wyler Children’s Hospital and the girl was examined aby Dr. Udervu. The Doctor verified of old injuries loop marks on girl’s shoulder, lacerations and bruising on the girl’s face neck and bruising girl’s legs and breast. girl (A.W.) related that she has seen her adoptive mother’s

gun (Emmaline on her WILLIAMS) person and in the house on nu- merous occasions and that the mother normally keeps the aforemen- tioned cane in (Emmaline her WILLIAMS) bedroom. The girl left the home on 16 JUNE 1985 and the weapon was still there with the adop- tive mother. In view of the above circumstances Reporting Officer feels Damen, that at 6544 S. Chicago, Cook County, Illinois there ex- ists evidence of the aforementioned series of events and criminal of- fenses under the control of Emmaline WILLIAMS F/B/apprx 43yrs of age.

ISI J. Lux 8927 COMPLAINANT Subscribed and sworn to before me on this 17th day JUNE at 5:10 P.M., 1985.”

Case Details

Case Name: People v. Williams

Court Name: Appellate Court of Illinois

Date Published: Jan 27, 1989

Citation: 538 N.E.2d 564

Docket Number: 1—87—0060, 1—87—0187 cons.

Court Abbreviation: Ill. App. Ct.