author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50830.
    (No. 50901.
    (No. 51044.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES ROBINSON, Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOE ISHMAN et al., Appellees.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. NICK CHARLES FREEMAN, Appellant.

      Opinion filed Oct. 2, 1979.

    Modified on denial of rehearing Feb. 1, 1980.

      Robert Agostinelli, Deputy Defender, of Ottawa (Gary R. Garretson, Assistant Defender, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Edward Petka, State’s Attorney, of Joliet (Donald B. Mackay, Melbourne A. Noel, Jr., and Thomas C. Crooks, Assistant Attorneys General, of Chicago, of counsel), for the People.
    William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Thomas C. Crooks, Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid, Deputy Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellees.
    Richard J. Wilson, Deputy Defender, of the office of the State Appellate Defender, of Springfield (Donald T. McDougall, Assistant Defender, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Donald B. Mackay, Melbourne A. Noel, Jr., and Thomas C. Crooks, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

These consolidated cases present the question whether alleged conflicts of interests on the part of their public defender trial attorneys served to deprive defendants of the effective assistance of counsel.

In cause No. 50830, defendant Charles Robinson and Beverly Wilder were charged, by information, in the circuit court of Will County, with the burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19—1) of a tavern. Following their arraignment, Alex Bonds, a part-time Will County public defender, was assigned to represent Robinson. Bonds disclosed that in the previous year his private law firm had represented James Witt in the purchase of the tavern business allegedly burglarized by defendant. Although Bonds no longer had any professional relationship with Witt, the latter still owed some portion of his attorney’s fee. After being informed by the circuit court of the possible conflict of interest, Robinson agreed to accept representation by another assistant public defender. Wilder’s motion for severance was allowed.

The evidence adduced at trial showed that at about 4:25 a.m. police found defendant and Wilder, who had gained entry through a broken window, inside the tavern preparing to remove several bottles of liquor and a television set. Witt testified that as the lessee of the tavern he had not given defendant authority to be in the tavern after closing. Defendant was found guilty of burglary and sentenced to the penitentiary.

The appellate court rejected defendant’s contention that a per se conflict of interest extended to all members of the public defender’s staff because of Bonds’ prior representation of the burglary victim, and affirmed the judgment. (People v. Robinson (1978), 59 Ill. App. 3d 514.) We allowed defendant’s petition for leave to appeal.

In cause No. 50901, defendants Joe Ishman and Reginald Bogay, and Sherwin Haywood, were indicted in the circuit court of St. Clair County for the murder of an employee of the P & K Wholesale House. A witness who was a customer in the wholesale house at the time of the shooting testified that three young men, two of whom were armed, entered the premises and demanded money. After a brief scuffle between an employee and one of the robbers, the robber’s pistol fired, fatally wounding the employee. The St. Clair County public defender was appointed to represent the three defendants and assigned separate assistant public defenders to represent defendants Ishman and Bogay; the public defender himself represented Haywood. Ishman’s motion to sever his trial because of “irreconcilable differences” in the three men’s defenses was granted. A severance was also granted to Haywood, who was later acquitted.

At his trial Bogay testified that he, Ishman, and Haywood had planned the robbery of the wholesale house, but that on entering the building he decided to withdraw from the crime. Ishman, according to Bogay, took Bogay’s pistol and pushed him forward. Bogay said he then fled, hearing the fatal shot as he left. As he ran toward Ishman’s car, Bogay was struck by buckshot fired by another employee of the wholesale house.

Ishman, who was arrested while attempting to use a credit card issued to one of the robbery victims, gave police a statement admitting his involvement in the robbery and implicating Bogay. In the statement, later introduced at trial, Ishman said that he remained near the door of the wholesale house while Bogay, carrying a pistol, and Haywood, with a sawed-off shotgun, approached the two men inside the business. During his trial, however, Ishman repudiated the statement, testifying that he signed it only after being beaten and threatened by the police. Ishman testified that he had bought the credit card from Bogay on the street for $20 and denied any knowledge of the robbery or murder.

In separate jury trials, Bogay and Ishman were found guilty of murder and sentenced to the penitentiary. The cases were consolidated on appeal, and the appellate court reversed the convictions; remanding for new trials at which defendants were to be represented by counsel other than the public defender. (People v. Ishman (1978), 61 Ill. App. 3d 517.) The appellate court reasoned that because of the defendants’ adverse interests (each attempted to shift culpability to the other), the public defender could not fully exercise his independent professional judgment on behalf of each defendant. The court said, too, that the possibility of a conflict of interest was not obviated by the public defender’s assignment of separate assistants to represent the defendants. We allowed the People’s petition for leave to appeal.

Defendant Nick Freeman (cause No. 51044) and his codefendant, James Winston, were charged by information in the circuit court of Champaign County with the armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18—2) of a bookstore. The public defender of Champaign County was appointed to represent both Freeman and Winston. He personally undertook Freeman’s representation and assigned an assistant public defender to represent Winston.

At trial a sales clerk at the bookstore testified that two men, one armed with a shotgun and the other with a pistol, entered the store and ordered him to open the cash register and a display case containing change. One of the men wore a ski mask, the other a nylon stocking over his head. The attendant identified Freeman as being the robber whose face was covered by the nylon stocking. Another witness, a resident of the neighborhood where the bookstore was located, testified that he noticed an unfamiliar car in the area at the time of the robbery and saw two men run from the bookstore. The men were running in a “military fashion,” ducking down, weaving and hiding. He reported to the police the license number of the car, which was later found in a trailer park. One of the investigating officers testified that a recent snowfall enabled him to track a set of footprints from the car to a shed, where he found a toy pistol and a shotgun of the type used in the bookstore robbery. The officer testified that another set of footprints led from the car to the trailer where he saw Freeman, Winston and two women. In the trailer he found a pair of shoes which matched one set of footprints. The shoes were damp on the bottom and had water on the edges. For reasons not clear from the record, Freeman was not arrested until two days later. The officer testified further that he read Freeman his “rights” from a “Miranda Warning Card” and while questioning him he admitted to the armed robbery but remained silent as to his accomplice’s identity. Neither Freeman nor Winston testified at trial.

The jury found Freeman guilty of armed robbery; Winston was acquitted. The appellate court held that although both defendants were represented by one entity (the public defender), their defenses were not antagonistic and the errors allegedly stemming from the joint representation were not prejudicial, and affirmed. (People v. Freeman (1978), 60 Ill. App. 3d 794, 799.) We allowed defendant Freeman’s petition for leave to appeal.

Simply stated, the question here presented is whether the individual attorneys employed in the office of a public defender are members of an entity subject to the generally recognized rule that if an attorney is disqualified by reason of a conflict of interest that no other partner or associate of his firm may continue with the representation. (People v. Fife (1979), 76 Ill. 2d 418, 425; Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures, Inc. (2d Cir. 1955), 224 F.2d 824, 826-27; ABA Code of Professional Responsibility, Disciplinary Rule 5—105(D) (1969).) Although recognizing the general applicability of the rule, the People argue that because of their significant differences from private law firms the same rule should not apply to public defenders’ offices. They argue that the individual attorneys in the public defender’s office owe no duty to the office, but only to the individual defendants they represent. Also, the People note, the structure of public defender offices is often dissimilar to private law offices. This State has no statewide public defender system (Ill. Rev. Stat. 1977, ch. 34, par. 5601 et seq.), and there are substantial differences in the organization of public defenders’ offices throughout the State; in at least one county the “office” of public defender exists in title only, with the individual attorneys being but nominally members of the same office. In such a county, the People contend, any analogy between the public defender’s “office” and a private law firm is completely invalid.

Even if an appearance of impropriety exists because of the representation of adverse interests by the public defender’s office, the People continue, it is outweighed by the strong public policy favoring professional defender representation of indigents. In support of this contention are cited statistics showing that most judges and attorneys in Illinois favored a full-time public defender system over an assigned counsel system; that many Illinois attorneys assigned to criminal cases thought themselves incompetent to represent their clients and nearly all felt imposed upon; and that the 78 counties in Illinois with public defender services have committed several million dollars in salaries alone. Creation of a per se rule disqualifying the public defender’s office from representing conflicting interests, the People posit, will weaken public defenders’ offices, while leaving indigent defendants with often less experienced assigned counsel costing the State more.

Although this court has not previously done so, other jurisdictions have considered the question whether a public defender’s office is a “firm” within the generally recognized canon which directs that if an attorney is disqualified by reason of conflict of interest no member of his firm may continue in the representation. In Turner v. State (Fla. App. 1976), 340 So. 2d 132, the court held that the public defender’s office of a circuit was such a “firm.” In Commonwealth v. Via (1974), 455 Pa. 373, 316 A.2d 895, the Supreme Court of Pennsylvania held that the petitioner in a prior post-conviction proceeding in which the petitioner was assigned counsel who was a member of the same public defender’s office which had represented him at trial did not waive the failure to assert incompetency of trial counsel. The rationale of the decision was that the law “will not assume that counsel has advised his clients of his inadequacies or those of his associates.” Legal aid societies and similar public service offices have been held, for the purposes of determining whether there were conflicts of interests, to be similar to a private law firm. (Estep v. Johnson (D. Conn. 1974), 383 F. Supp. 1323; Allen v. District Court (1974), 184 Colo. 202, 519 P.2d 351; Borden v. Borden (D.C. 1971), 277 A.2d 89; State v. Stevenson (1978), 200 Neb. 624, 264 N.W.2d 848; Commonwealth v. Westbrook (1979), 484 Pa. 534, 400 A.2d 160.) In Borden, both parties in a divorce suit were represented by attorneys from the same legal aid office. Holding that representation of adverse interests by members of the same office was improper, the court found that “Lawyers who practice their profession side-by-side, literally and figuratively, are subject to subtle influences that may well affect their professional judgment and loyalty to their clients, even though they are not faced with the more easily recognized economic conflict of interest.” (277 A.2d 89, 91.) The court concluded that it was “reluctant ever to make an exception from the professional norm for attorneys employed by the government *** because then we might encourage a misapprehension that the special nature of such representation justifies departure from the profession’s standards. We should always avoid any action that would give the appearance that government attorneys [footnote — indicating that this included the public defender — omitted] are ‘legal Hessians’ hired ‘to do a job’ rather than attorneys at law.” (277 A.2d 89, 92-93.) Although Borden did not involve, as do the present cases, the additional considerations required by the constitutional right, both Federal and State, to effective assistance of counsel, the court’s analysis is equally relevant here.

Further support for the position that no distinction is to be drawn between attorneys in private practice and those employed by the State is found in the American Bar Association Standards Relating to the Administration of Criminal Justice. Section 3.9 of the ABA Standards, The Defense Function (1971), provides that “once a lawyer has undertaken the representation of an accused his duties and obligations are the same whether he is privately retained, appointed by the court, or serving in a legal aid or defender system.”

In support of their position, the People cite People v. Wilkins (1971), 28 N.Y.2d 53, 268 N.E.2d 756. The New York Court of Appeals there held that the New York City Legal Aid Society’s representation of both the defendant and, by a different attorney and in an unrelated criminal trial, the complaining witness, did not deprive defendant of the effective assistance of counsel. The size of the legal aid society (it employed over 150 lawyers for criminal defense alone), the court said, made it unlikely that, as in a law firm, information concerning clients flowed freely within the office; consequently, the court would not impute knowledge from one attorney in the society to another. The court added that because the defendant had not shown his attorney was inhibited or restrained during trial, it would not infer prejudice.

Insofar as Wilkins was predicated on the absence of prejudice to the defendant, it has no relevance to these cases for the reason that this court has held that when a defendant’s attorney is burdened with a conflict of interest, actual prejudice need not be shown. (People v. Stoval (1968), 40 Ill. 2d 109.) To the extent that the decision in Wilkins was premised upon the size of the agency providing legal services, we do not agree. A number of private law firms now employ literally scores of attorneys, yet it could not seriously be contended that a law firm of such size could properly represent adverse interests in a single case. Also, as we have already indicated, great discrepancies exist in the size and organization of this State’s public defender offices. They range from the Cook County public defender’s office, with nearly 300 full-time attorneys, to many smaller offices employing only a few full- and part-time lawyers. While it might be possible to distinguish, as was done in Wilkins, an office like that of the Cook County public defender from private law firms, smaller public defender offices like those in the present case are, structurally and quantitatively, similar to private law firms composed of a senior member and one or more salaried associates.

The People’s conclusion that attorneys in the public defender’s office have no allegiance to their office has been implicitly rejected in People v. Smith (1967), 37 Ill. 2d 622. In Smith the defendant had been represented at trial by an attorney from the public defender’s office. After his conviction, the defendant filed a pro se petition alleging that his trial counsel was incompetent; another attorney from the same office was appointed to represent defendant in the post-conviction proceedings. Although the court restricted its holding to the circumstances present in that case, in finding a conflict of interest it was nonetheless acknowledged that an attorney from the public defender’s office might feel some loyalty to the office since the attorney’s “natural inclination would be to protect its reputation by defending against the charges of incompetency ***.” 37 Ill. 2d 622, 624.

Upon review of the authorities and consideration of the diversity of organization of the offices of the public defenders, we conclude that the avoidance of conflicts of interest which result in failure to provide effective assistance of counsel does not require us to hold that the individual attorneys who comprise the staff of a public defender are members of an entity which should be subject to the rule that if one attorney is disqualified by reason of a conflict of interest then no other member of the entity may continue with the representation. In many instances the application of such a per se rule would require the appointment of counsel with virtually no experience in the trial of criminal matters, thus raising, with justification, the question of competency of counsel. Balanced against this is the possibility, in most instances quite remote, that an experienced member of the public defender’s staff might labor under a conflict of interest because another member of the staff was so burdened. We find apposite the commentary to the American Bar Association Standards Relating to the Defense Function (Standard 3.5, Conflict of interest) which states:

“The basic rule which must guide every lawyer is that his total loyalty is due each client in each case; and he may never permit the pressing of one point or one case to be guided or influenced by the demands of another case. The risk of jeopardizing other cases, if it in fact exists, presents a conflict he must resolve in such a way that his immediate responsibility is faithfully discharged. This problem is one of the arguments frequently made against the desirability of a full-time defender agency. Those who have studied voluntary and public defender offices have concluded that the inbred adversary tendencies of the lawyers are sufficient protection. See Special Comm’n of the Ass’n of the Bar of the City of N. Y. & the Nat’l Legal Aid and Defender Ass’n, Equal Justice for the Accused 61, 71, 74 (1959). In the sphere of private representation and in institutionalized prosecution offices many of these risks are present in some degree. Here, too, the innate competitive instincts of an advocate and the integrity of the bar is society’s protection.” ABA Standards, The Defense Function. Commentary, at 212-13 (1971).

In our opinion the decisions of the Supreme Court and this court (see Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Stoval (1968), 40 Ill. 2d 109; People v. Kester (1977), 66 Ill. 2d 162; People v. Berland (1978), 74 Ill. 2d 286; People v. Vriner (1978), 74 Ill. 2d 329) furnish guidance adequate to avoid conflicts of interest which will impede the furnishing of effective assistance of counsel.

We turn now to a consideration of the facts and circumstances of these consolidated cases.

In cause No. 50830 the conflict of interest arose because the public defender assigned to represent defendant Robinson had previously represented James Witt, the People’s witness who was the lessee of the tavern which defendant was charged with burglarizing. Under these circumstances there arose “the possibility that the attorney might be subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner.” (People v. Kester (1977), 66 Ill. 2d 162, 167.) In a case involving an assigned counsel’s representation of both the defendant and the theft victim, the Court of Appeals for the Fifth Circuit stated:

“The victim of a crime is not a detached observer of the trial of the accused, and his ‘private attorney’ is likely to be restrained in the handling of that client/witness. In a similar case, the court observed: ‘It takes no great understanding of human nature to realize that the individuals who have been burglarized might be less than happy and might go so far as to remove the attorney from their good graces if this defendant were acquitted or received a light sentence or were placed on probation.’ United States v. Myers, E.D. Pa. 1966, 253 F. Supp. 55, 57.” Castillo v. Estelle (5th Cir. 1974), 504 F.2d 1243, 1245.

Although Witt’s testimony merely confirmed that the tavern was in a normal condition when he left, that he had not given defendant permission to be inside the tavern, and that a television set had been moved from its customary location, it is unnecessary for a defendant to show that his attorney’s conflict caused him actual prejudice. (People v. Stoval (1968), 40 Ill. 2d 109.) It therefore seems clear that had Bonds continued in the representation of defendant, a conflict of interest might have existed which, absent other circumstances, could deprive defendant of his right to effective assistance of counsel. See generally Annot., 27 A.L.R.3d 1431, 1438-40 (1969).

United States v. Jeffers (7th Cir. 1975), 520 F.2d 1256, cert. denied (1976), 423 U.S. 1066, 46 L. Ed. 2d 656, 96 S. Ct. 805, cited by the People, is not apposite. The defendant in that case was represented by an attorney whose firm had represented a prosecution witness in an earlier criminal trial. In holding that the defense counsel’s dual representation did not constitute a conflict of interest, the court of appeals emphasized that the case did not involve “an existing personal relationship” between the attorney and the prosecution witness. (520 F.2d 1256, 1263-64.) By contrast, in Robinson the relationship between attorney and client was active in that at the time of defendant’s trial the prosecution witness still owed legal fees to the assistant public defender.

The People contend that if any conflict of interest existed by reason of defendant’s being represented by another assistant public defender, it was knowingly and intelligently waived by defendant. The record shows that immediately before Robinson and Wilder were to be tried, the circuit court informed them of Witt’s expected testimony and of his previous representation by Bonds. The consequences of the possible conflict of interest were also explained:

“THE COURT: See, I want it crystal clear to you that I don’t know what this witness is saying is true or false or anything else but I want the lawyer that represents you to be free to tear him up like hamburger, rip him off, make a liar out of him if he can do so. Do you understand that?
DEFENDANT WILDER: Yes.
THE COURT: I want him to be completely free and have no — I don’t want him to hold back anything in your behalf, do you understand that? So, we have all agreed that we will not let Bonds serve. But the question is whether you’d have any objection to Mr. Andreano getting another Public Defender and this one being a full time one. Not no connection with Bonds, his only connection would be that he also works for the Public Defender’s office but he’s a full time man in the office. Do you understand that, Mr. Robinson?
DEFENDANT ROBINSON: Yah.
THE COURT: Do you have any objection to this other man being appointed by Mr. Andreano?
DEFENDANT ROBINSON: He may be influenced—
THE COURT: Pardon?
DEFENDANT ROBINSON: He may be make an influence.
THE COURT: I’m sorry-
MR. RUDMAN [assistant State’s Attorney] : He may get influenced.
THE COURT: May get influenced?
DEFENDANT ROBINSON: Yes.
THE COURT: How about you, Mrs. Wilder?
DEFENDANT WILDER: Makes me no difference.
THE COURT: Makes no difference to you. Well, Mr. Robinson you think that there is a possibility Mr. Phelan may be influenced by Mr. Bonds?
DEFENDANT ROBINSON: Yes, it’s a possibility.
THE COURT: Well, the reason I brought this all to your attention is I want you to understand what is going on and if you have any objection then what I’m going to do then, I’m going to relieve Mr. Andreano, the Public Defender’s office. Now, that’s going to put me in a position of giving you a new lawyer and in your trial, it’s your trial date now and you’ll get a new lawyer in. Now, he may need time to prepare it. He may not be ready to go to trial promptly. Do you understand that?
DEFENDANT ROBINSON: Yah.
THE COURT: Under no circumstances, you may be faced with the choice of whether to ask for a continuance, do you understand?
DEFENDANT ROBINSON: Yep.
THE COURT: And if you ask for a continuance you will be giving up and waiving your right to a speedy trial, do you understand that?
DEFENDANT ROBINSON: Yep.
THE COURT: Your trial has to commence within 120 days of your arrest which is tomorrow. Do you understand that?
DEFENDANT ROBINSON: Yep.
THE COURT: And you still feel that you would rather have somebody outside that office and there is no possibility of any influence—
DEFENDANT ROBINSON: Repeat that question again.
THE COURT: Pardon?
DEFENDANT ROBINSON: Repeat the question.
THE COURT: Well, the question is, Mr. Andreano offered to get Mr. Phelan [a full-time assistant public defender] in to replace Mr. Bonds. Do you understand that?
DEFENDANT ROBINSON: Yep.
THE COURT: And you said there is always a possibility of some kind of influence—
DEFENDANT ROBINSON: Yep.
THE COURT: And if you feel that way, then we are going to get you somebody completely un-associated with the Public Defender’s office. If that’s the way you feel. Because you are the one that has to make the choice. I am only advising you that your 120 days will be up, you[r] trial has to start tomorrow and this new lawyer that I bring in, he may need more than one day to familiarize himself with the case. He may say, I need more time and you are going to be faced with— You have a right to demand that your trial start and if your trial starts you may be faced with a lawyer that’s not in a position to properly defend your case for lack of time. Do you understand that?
DEFENDANT ROBINSON: Yep.
THE COURT: So, knowing that, Mr. Robinson, do you want to get a new and different lawyer not connected with the Public Defender’s office or do you want to get another lawyer from the Public Defender’s office?
DEFENDANT ROBINSON: I’ll keep the one I got.
THE COURT: You want to keep the one you got now?
DEFENDANT ROBINSON: Yah.
THE COURT: Now, you mentioned just a few minutes ago that maybe Mr. Phelan will be influenced by Mr. Bonds. Now, you have reconsidered that view, Mr. Robinson?
DEFENDANT ROBINSON: Yah.
THE COURT: And you now want to accept Mr. Phelan do you?
DEFENDANT ROBINSON: Yah.”

Phelan withdrew and defendant was thereafter represented by Daniel Kalian, another full-time assistant public defender. On the following day, April 21, 1976, the trial court was told that two other part-time assistant public defenders had also done legal work for Witt. On that day defendant’s attorney, Kalian, asked that the court inform defendant of the problem confronting him: “I think Mr. Robinson has a choice to make and I want that choice made known to the defendant, that he has to choose between Constitutional right to a speedy trial or his effective assistance of counsel and I want that made known to him in the court.” The record shows the following colloquy:

“THE COURT: Now, the situation we are faced with is this, you have to agree and consent to accept these attorneys because if you have any reservation in your mind, any feeling they are not going to do a job for you and you alone, the right way and anything wrong with this situation, if you would say that to me, I’ll give you another and different lawyers. I have already contacted Mr. Gray. Now, I’m willing to give you — I would just go ahead and give you a different lawyer except for this problem I’ll put up against you which I told you about yesterday. If I do give you a different lawyer and call Mr. Gray up, Mr. Gray is going to have to go to trial today but if you and he talk about this case and he says, well, I’d rather have a little more time to try this case. Then you are going to be forced to ask for a continuance on your case. If you ask for a continuance on your case, you’ll be breaking what we call the 120 day rule. The 120 day rule is in effect says this, if your trial don’t start on the 120th day, we have to turn you loose and give you a complete pass on this offense. Do you understand that?
DEFENDANT ROBINSON: Yep.
THE COURT: In other words, Mr. Robinson, today is the 120th day, if this trial doesn’t start today, you are home free in this offense, do you understand that?
DEFENDANT ROBINSON: Yah.
THE COURT: Now, if I’m going to bring you a new lawyer today, the lawyer could say, I’ll go ahead Judge and if he goes ahead, he won’t have a lot of time to prepare. If he doesn’t want to go ahead, you are going to be forced to ask for a continuance. Do you understand that?
DEFENDANT ROBINSON: Yep.
THE COURT: Now, the other thing you will be doing is breaking your 120 day rule, if you ask for a continuance and the court can — we can set another time for this case and you will continue to remain in custody until that additional time, do you understand that?
DEFENDANT ROBINSON: Yah.”

After explaining the computation of the 120-day period, the trial judge again received defendant’s answer that he wished to continue to be represented by the public defender’s office:

“THE COURT: Do you want to have Mr. Kalian as your attorney or do you want me to get you another attorney from outside the Public Defender’s office?
DEFENDANT ROBINSON: He’ll do.
THE COURT: He’ll do, now, you understand that he works for Mr. Andreano, the Public Defender, don’t you?
DEFENDANT ROBINSON: Yep.
THE COURT: You understand Mr. Bonds also works for Mr. Andreano, the Public Defender, don’t you?
DEFENDANT ROBINSON: Yes.
THE COURT: You understand Mr. Murer and Kozlowski work for Mr. Andreano, don’t you?
DEFENDANT ROBINSON: Yep.
THE COURT: You understand that they represented Mr. James Witt, you understand that?
DEFENDANT ROBINSON: Yep.
THE COURT: Knowing that you still want to accept Mr. Kalian?
DEFENDANT ROBINSON: Yep.”

The sixth amendment right to effective assistance of counsel is subject to waiver. (United States v. Alvarez (5th Cir. 1978), 580 F.2d 1251; see Glosser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; People v. Friedrich (1960), 20 Ill. 2d 240.) A waiver of this fundamental right, however, should not be casually inferred (Glasser v. United States (1942), 315 U.S. 60, 70, 86 L. Ed. 680, 699, 62 S. Ct. 457, 465; People v. Fife (1979), 76 Ill. 2d 418), and must be knowingly and intelligently made (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023). Indeed, some courts have questioned (in the context of representation of multiple defendants) whether most defendants possess the legal sophistication to weigh the alternatives and intelligently abandon the right to conflict-free counsel. Campbell v. United States (D.C. Cir. 1965), 352 F.2d 359, 360; United States v. Garafola (D.N.J. 1977), 428 F. Supp. 620, 623; Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 140-42 (1978); see People v. Stoval (1968), 40 Ill. 2d 109, 114.

The record shows that the circuit court thoroughly and carefully informed Robinson of the circumstances producing the possible conflict of interest and explained to him the possible harm that could result to his defense. This was in marked contrast to what occurred in People v. Stoval (1968), 40 Ill. 2d 109, where the circuit court merely advised defendant of the conflict of interest and made no effort to explain its significance or in what manner it might affect counsel’s representation. Defendant appears to have understood the problem and freely chose to proceed with an assistant public defender as his counsel. Assuming the possibility of conflict, in view of its attenuation here, defendent’s decision does not appear imprudent.

Defendant contends that he could not knowingly and intelligently waive his counsel’s conflict of interest because he was misled by the trial court’s information; irrespective of whether he chose private counsel or the public defender, the 120-day speedy trial period was quite unlikely to expire. This is so, defendant alleges, since his trial counsel had filed a motion on April 20, 1976, to sever defendant’s trial from that of his codefendant, thereby tolling the period. (Ill. Rev. Stat. 1975, ch. 38, pars. 103—5(a), (f); People v. Lee (1969), 44 Ill. 2d 161.) A jury panel was, at the time of his waiver, ready for the trial to begin; and, absent any evidence to the contrary, it may be presumed that the People were prepared for trial. These facts, defendant contends, must have been made known to him before he could make a knowing and intelligent waiver.

We are not persuaded by defendant’s argument. In advising defendant of the conflict, the circuit court acted at the request of defendant’s counsel that defendant should be told in court of his choice “between [the] Constitutional right to a speedy trial or his effective assistance of counsel.” Defendant’s appellate counsel concedes that the information given defendant by the trial court was correct, but argues that it was incomplete. The more complete warning now urged would, however, have required some prescience on the part of the circuit court. At the times defendant was admonished (both on April 20, 1976, and on April 21, 1976) the motion for severance had not yet been filed. Although the clerk’s stamp indicates that it was filed on April 20, 1976, the transcript shows that it was first made orally on April 21, 1976, subsequent to defendant’s second admonition. Had defendant’s attorney indicated at an earlier time an intention to file the motion, the circuit court might have advised the defendant concerning its effect, but the court was not required to admonish defendant concerning actions which had not yet been taken. We hold that defendant made a knowing and intelligent waiver, and the judgment is affirmed.

In both cause No. 50901 and cause No. 51044 the alleged conflict of interest arose from the public defender’s representation of codefendants. Because we have here held that a conflict of interest on the part of one lawyer on the public defender’s staff does not per se serve to disqualify other lawyers associated with that office, it must be determined from the record whether a conflict, in fact, existed. Relevant to that determination is the rationale for limiting, or in some instances proscribing, joint representation of codefendants. While joint representation of multiple criminal defendants is not per se violative of the guarantee of effective assistance of counsel (Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Berland (1978), 74 Ill. 2d 286, 305), it frequently presents the potential for denial of that right. Several commentators have criticized the practice (Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119 (1978); Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Court’s Headache, 5 Hofstra L. Rev. 315 (1977); Note, Criminal Codefendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo. L.J. 369 (1969)). Section 3.5(b) of ABA Standards, The Defense Function (1971), provides:

“Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation. In some instances, as defined in the Code of Professional Responsibility, accepting or continuing employment by more than one defendant in the same criminal case will constitute unprofessional conduct.”

Some would ban multiple representation almost entirely. (See United States v. Mari (2d Cir. 1975), 526 F.2d 117, 120-21 (Oakes, J., concurring).) We note that proposed Rule 44(c) of the Federal Rules of Criminal Procedure provides:

“Rule 44. Right to and assignment of counsel.
* * *
(c) Joint representation. — Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.”

In cause No. 50901 defendants Ishman and Bogay, both represented by the public defender’s office, developed inconsistent defenses. Bogay admitted that he was present with Ishman and Haywood at the scene of the robbery-murder, but claimed that he fled before the murder occurred. Ishman, on the other hand, denied any knowledge of the murder, testifying that he purchased from Bogay the robbery victim’s credit card that led to his arrest. The trials of these defendants were severed and they and Haywood were represented by different members of the public defender’s staff.

We have held that to prevail on a claim of ineffective assistance of counsel due to joint representation, a defendant must show “an actual conflict of interest manifested at trial ***.” (People v. Berland (1978), 74 Ill. 2d 286, 299-300; People v. Vriner (1978), 74 Ill. 2d 329, 340-41.) Mere hypothetical or speculative conflicts will not suffice. (People v. Berland (1978), 74 Ill. 2d 286, 301.) To meet this burden, Ishman contends that in order not to prejudice the later sentencing of Bogay his trial attorney failed to elicit testimony favorable to his defense. At Ishman’s sentencing hearing the following colloquy occurred between Ishman’s counsel and the assistant State’s Attorney who prosecuted the case:

“MR. WHARTON [Ishman’s counsel] : Mr. English, I am, going to ask you prior to the testimony of one Mr. Schneider who was a witness to the alleged incident, did you out of the hearing of the jury conduct a conference between Mr. Schneider, yourself, and myself?
MR. ENGLISH [assistant State’s Attorney]: If you can remember it. I am sure we did. But you will have to — what was it about?
Q. This was concerning certain matters that he was not to go into when he testified. You know what I am looking—
A. You want me to say what we got on Ishman?
Q. What did he say?
A. It is the opinion and as I took over the case we didn’t know who the trigger man was originally. They thought it was Reginald Bogay, and if the court will remember the testimony he is the one that carried the money in. I talked with both Mr. Schneider and Komechek [sic] and I don’t know how Paul Komechek [sic] would know but I think the evidence in court not present but it would be their opinion and to this day Mr. Schneider would not.
Q. What? What did he say?
A. He would say Bogay was the trigger man.”

The failure at Ishman’s trial to offer the foregoing testimony cannot be attributed to a conflict of interest. Identification of Bogay as the “triggerman” was, as the People point out, irrevelant to Ishman’s defense that he was not a participant in the offense. Indeed, evidence concerning what had occurred at the murder scene may well have been detrimental to that defense. The records show that each defendant received vigorous representation from his separate counsel, and we are unable to discern any indication that the defense of either of them was inhibited to any degree because of the alleged joint representation. We hold, therefore, that the appellate court erred in holding that the per se conflict required reversal of the convictions.

In cause No. 51044, the defenses of the two defendants on trial were not antagonistic. The evidence against Freeman consisted of testimony concerning his admissions of guilt in the armed robbery, the bookstore clerk’s identification, and the footprints leading from Freeman’s car to the shed where the two guns were found. By contrast, the only circumstances linking Winston to the crime were the footprints and the similarity of the toy pistol used in the robbery to one owned by his son. Apparently in an effort to demonstrate the contrast in the evidence against Winston and the greater amount of evidence against Freeman, the public defender representing Winston asked repeatedly on voir dire, “Do you believe that a person who is found associated with someone who commits a criminal act is therefore also somewhat responsible for it?” No objection was made by the assistant public defender representing Freeman. Appellate counsel contends that the failure to object is evidence of the conflict of interest under which the trial attorney labored. Appellate counsel also points to the following statement made by Freeman’s attorney during closing argument:

“One word about Mr. Winston, who is not my client, before I start. I would submit to you that the evidence in this particular case is very much lacking as to this particular individual and a verdict of guilty as to Mr. Winston would appear to be a travesty of justice and I will confine my arguments from this point on as to my client, Nick Freeman.”

The People concede that the argument was “ill-conceived,” but maintain that it is not evidence of a conflict of interest and was not prejudicial to defendant Freeman. Defendant argues that when there is a difference in the quantum of evidence with respect to codefendants “a natural strategy is to appeal to the jury to compromise by finding one guilty and thus satisfying a fundamental human desire for vindication and retribution; and then also to do further justice by finding a ‘reasonable doubt of guilt’ as to the other defendant.”

Upon examination of the record we agree with the appellate court that no conflict of interest has been shown as a result of the representation of these defendants by two attorneys associated with the public defender’s office. The question posed on voir dire did not stem from this representation and may as well have been asked by counsel with no prior association. The comment made in final argument appears to have been made for the purpose of demonstrating that there was no evidence whatsoever as to Winston, and although admittedly the evidence was somewhat greater concerning Freeman, that it was not sufficient to justify a conviction. While we recognize that one of the hazards of joint representation is that evidence beneficial to one defendant will not be offered (People v. Rose (1932), 348 Ill. 214), to conclude that this argument in any manner arose from any desire or effort to aid Winston by reason of his representation by the public defender’s office would rest on conjecture and speculation. The judgment of the appellate court is affirmed.

For the reasons stated, in cause No. 50830, the judgment of the appellate court is affirmed; in cause No. 50901 the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed; and in cause No. 51044 the judgment of the appellate court is affirmed.

50830 Appellate court affirmed.

50901 — Appellate court reversed; circuit court affirmed.

51044 Appellate court affirmed.


source: Caselaw Access Project

author: MR. JUSTICE WARD MR. JUSTICE CLARK,

license: Public Domain

text:
    (No. 50906.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. EDWARD SPICER, Appellee.

      Opinion filed October 19, 1979.

      CLARK, J., concurring.

      William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., and Keith P. Vanden Dooren, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon), for the People.
    John M. Reid and Rafael Schwimmer, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Early on the morning of November 15, 1975, Ben Seigel and Emmanuel Ukman were murdered in the course of a robbery at their grocery store in East St. Louis. Police Officer Bruce Moore, who had been summoned to the store, was shot and severely wounded by one of the robbers.

An indictment charging the commission of the crimes was returned by a grand jury in the circuit court of St. Clair County. Edward Spicer, the defendant here, was indicted jointly with James Phillips and Earl Good on two counts of murder, one count of attempted murder, and one count of armed robbery. Good pleaded guilty to the murder counts, and the remaining counts were dismissed on the prosecutor’s motion. He received a sentence of 90 to 180 years. Phillips was found guilty on all counts after a jury trial and was sentenced to 20 to 60 years. The defendant’s trial, on his motion, was moved to Randolph County and resulted, too, in a verdict of guilty on all counts of the indictment. He was sentenced to 200 to 400 years on each of the murder counts and 10 to 30 years on the other counts. The defendant, Phillips and Good were individually represented by three assistant public defenders of St. Clair County. The appellate court reversed the defendant’s conviction and remanded for a new trial on the grounds that he had been denied effective assistance of counsel by virtue of a conflict of interest because of the multiple representation by assistant public defenders of St. Clair County and that the trial court had improperly admitted an extrajudicial statement by Phillips, who already had been convicted and sentenced, as substantive evidence in the case in chief against the defendant. One justice dissented. (61 Ill. App. 3d 748.) We allowed the People’s petition for leave to appeal. 65 Ill. 2d R. 315.

The circumstances of the crimes are set out at length in the appellate court’s opinion (61 Ill. App. 3d 748). We will state only those relating to the questions before us. On the evening following the murders Phillips gave an unsworn, signed statement to the East St. Louis police. In it he stated that the three men had visited the store the day before the robbery and returned together again on the morning of November 15, 1975, in a station wagon which Phillips drove. He claimed that the defendant and Good had told him that, if he did not drive them to the store that morning, they “would kill my two babies.” He said they repeated the threat when they took the keys from the station wagon and directed him to wait for them while they were in the store. Phillips waited about half an hour, and after he heard sounds of shooting, the defendant and Good, he said, rushed back to the car, threw him the keys and told him to drive. Phillips drove back to his house, after which the three went into the basement and divided the money taken in the robbery. Police arrived shortly thereafter, but before the officers came to the front porch, the defendant and Good, having seen them approaching, fled from the house.

The defendant was apprehended in Michigan and there he gave police a statement in which he admitted having gone to the store with Phillips and Good two days before the robbery. But in the statement he denied having participated in the robbery, claiming that Phillips, Good and a “third party” were involved. He said he had remained at Phillips’ house and denied he had shared in the money taken in the robbery.

The prosecution called Phillips to testify at the defendant’s trial. He refused to be sworn until he had consulted with his attorney, and Assistant Public Defender Milton Wharton, who had represented Phillips at his trial, was called. At a hearing in the judge’s chambers and in Phillips’ presence, Wharton obtained from the prosecutor a promise of immunity for Phillips against the use of any testimony he might give should Phillips gain a retrial on his appeal, which was pending, and also immunity with respect to any “further prosecution of him.” Phillips nevertheless continued to refuse to testify, expressing fears of gang retaliation while he was serving his term, although he conceded that the defendant had not personally threatened him. The trial judge found Phillips in contempt, but delayed imposition of punishment, telling Phillips he would withdraw the finding if he would change his mind during the course of the trial and testify. It appears that Phillips did change his mind; he later was sworn as a witness for the People.

Phillips stated his name and address, that he had been convicted and sentenced for the crimes charged in the indictment and that he had given a statement relating to them at the East St. Louis police station on the evening of November 15, 1975. Over the defendant’s objections, he acknowledged that he had signed the statement shown him by the assistant State’s Attorney, but also disclosed that he could not read. The statement was not read to him by the prosecutor. Phillips testified that he had told the truth in the statement concerning events as he recalled them, and it was then admitted into evidence. The defendant’s attorney, Assistant Public Defender Rodger Hay, did not cross-examine Phillips and again made objection to the statement’s admission. He also moved for a mistrial, which was denied. The assistant State’s Attorney then read Phillips’ statement to the jury.

The People contend that the statement was properly admitted by the trial court as substantive evidence against the defendant because Phillips took the stand and was placed under oath, the jury was able to observe his demeanor, and the defendant was given an opportunity to cross-examine him regarding his statement had he chosen to do so. But we consider the question regarding Phillips is similar to the one arising upon a prosecutor’s attempt to impeach a witness by a prior inconsistent statement. There, too, the situation involves a sworn witness, whose demeanor may be observed by the trier of fact and who is available to the defendant for cross-examination. This court, however, has rejected contentions that the impeaching material should be allowed to be considered as substantive evidence against an accused. See People v. Bailey (1975), 60 Ill. 2d 37, 43; People v. Gant (1974), 58 Ill. 2d 178, 183-85; People v. Powell (1973), 53 Ill. 2d 465, 472; People v. Collins (1971), 49 Ill. 2d 179, 194-98; People v. Newman (1964), 30 Ill. 2d 419, 423; People v. Paradise (1964), 30 Ill. 2d 381, 383-84 and cases cited therein.

Many of the reasons given for not permitting impeaching material to be considered as substantive evidence are applicable here: “Our present method of trial contemplates basically that in criminal cases *** all of the evidence is to be presented at a single time and place in a continuous proceeding. If all prior statements of witnesses are to be put before the jury or the judge as substantive evidence, the logistical problems of a trial — already serious —will be enhanced because it will be necessary to have present at the time and place of the trial not only those persons who witnessed the occurrence at firsthand, but also those persons to whom the firsthand witnesses have made statements about the occurrence, either orally or in writing.” (People v. Collins (1971), 49 Ill. 2d 179, 198.) “What the witness stated out of court and out of the presence of the defendant is pure hearsay and incompetent. Legally it is not evidence of defendant’s guilt and cannot be received as proof of the fact at issue.” (People v. McKee (1968), 39 Ill. 2d 265, 270.) “It must be recognized *** that in criminal cases these extrajudicial statements are often highly incriminating and are usually made outside the presence of the defendant. To give these statements substantive value would allow an accused to be convicted on extrajudicial statements of witnesses — a practice that runs counter to the notions of fairness on which our legal system is founded. (Bridges v. Wixon, 326 U.S. 135, 89 L. Ed. 2103, 65 S. Ct. 1443.) Therefore, prior self contradictions are not to be treated as having any substantive or independent testimonial value. People v. Morgan 28 Ill. 2d 55; People v. Moses, 11 Ill. 2d 84; see also 3 Wigmore on Evidence, 3rd ed. sec. 1018; McCormick on Evidence, sec. 39." People v. Paradise (1964), 30 Ill. 2d 381, 384.

People v. Grigsby (1934), 357 Ill. 141, involved a situation with resemblance to the case here. There a witness was called for the purpose of proving that the defendant had come to her house after a shooting and had told her that he “just shot a couple of guys.” (357 Ill. 141, 144.) The witness’ answers to the prosecutor’s preliminary questions made it apparent that she would not give the testimony he anticipated. Upon the prosecutor’s motion she was made a court’s witness. The prosecutor proceeded to ask her a series of questions which embodied the substance of a prior written, unsigned statement she had given. The answers given to all but one of the questions were simply “Yes, sir.” The court described this as an “indirect method of advance impeachment of a witness who had not testified to the contrary” (357 Ill. 141, 148) and noted:

“The issue is not whether the witness Lockard is honest or dishonest, reliable or unreliable, but whether the defendant is guilty of the crime charged in the indictment. All of these matters sought to be introduced by the indirect method of advance impeachment of a witness who had not testified to the contrary are collateral to the main issue. Whether or not in a proper case they might be competent by way of impeachment, they were entirely incompetent and extremely prejudicial as here offered on the case in chief. To permit this method of attack would be dangerous in the extreme. It would make it possible for anyone, in effect, to confess for a defendant and to do this without any liability for perjury. Anyone might with perfect safety make a false statement out of court, and not under oath, to the effect that the defendant had told him that he killed someone. When in court and under oath upon a material point, and thus - subject to penalties for perjury, it is to be presumed that he would refuse to so testify. If the State’s attorney could be permitted, under these circumstances, to prove, by way of advance impeachment, that the witness said that the defendant had said certain things, it would present a situation of appalling seriousness.” 357 Ill. 141, 148-49.

The case here, of course, does differ from Grigsby. Unlike the witness there, Phillips did testify under oath that he had told the truth in his statement. There are, however, other factors which do not support trustworthiness: his statement was not given under oath nor was it subject to contemporaneous cross-examination; the statement implicated the defendant and exculpated Phillips, who claimed to have acted under coercion; Phillips had been convicted of the crimes involved; he refused to testify directly even after having been found in contempt of court; he could not read; the statement was neither read to him prior to his adoption of it in court nor validated by other witnesses (as was done in Grigsby); and there is the question whether, when he was granted immunity from any “further prosecution,” he was immunized even from perjury in the testimony he was being urged to give. The People say he was not, citing the immunity statute which states that a witness will not be immunized from perjury in the solicited testimony. We consider that even if the People’s position is correct, Phillips may have believed that his immunity was complete. As we have noted, the circumstances above fail to support the trustworthiness of Phillips ’ statement.

The cases which the People cite, in which evidence of transcripts from previous trials was admitted in lieu of the testimony of unavailable witnesses, are not in point in this unusual situation. The People cite, and we are not unmindful of, the Supreme Court’s holding that the confrontation clause of the sixth amendment and the due process clause of the fourteenth amendment are satisfied if there is an opportunity at trial for full and effective cross-examination of a witness on prior inconsistent statements. (California v. Green (1970), 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930.) Green, however, does not govern here. As we explained earlier in this opinion, this court denies on an evidentiary — not a constitutional — basis the substantive use of prior inconsistent statements of a witness. Even apart from that, it is questionable whether Phillips, though present in court, would have been really available for full and effective cross-examination. He refused to give direct testimony, and he might have testified on cross-examination, if at all, with the belief that the broad grant of immunity against the use of his testimony in any new trial or in any “further prosecution of him,” might protect him against a prosecution for perjury while testifying under that cross-examination.

A remaining question is whether the error of admitting Phillips ’ statement requires reversal of the defendant’s conviction. We consider it does not. The other evidence of the defendant’s guilt was sufficient to show his guilt beyond a reasonable doubt. (People v. Pittman (1973), 55 Ill. 2d 39, 59; People v. Wilson (1972), 51 Ill. 2d 302, 308.) Even were the error to be considered constitutional in character we judge it was harmless. “[B] efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 711, 87 S. Ct. 824, 828.) Our decision in this “must be based on our own reading of the record and on what seems to us to have been the probable impact” of Phillips’ statement “on the minds of the average jury.” Harrington v. California (1969), 395 U.S. 250, 254, 23 L. Ed. 2d 284, 288, 89 S. Ct. 1726, 1728.

Independent of Phillips ’ statement, there was completely convincing evidence of the defendant’s guilt. Contradicting the statement of the defendant (that is, the written statement given to police in Michigan; the defendant did not take the stand), which was admitted into evidence, witnesses who were in Phillips’ house at the time testified that the defendant, Phillips and Good left the house together on the morning of the crimes. There was no other person with them. (The defendant said Phillips, Good and a “third party from St. Louis” left together, committed the crimes and returned together.)

Police Officer Bruce Moore positively identified the defendant as being the robber who shot him in the neck from a distance of approximately 10 feet. The officer said he had a “good look” at the defendant. “I looked directly at the subject and he fired a shot ***.” “I was looking at, it seems as though I was looking directly down the barrel. It was that close.”

Witnesses who were at Phillips’ house also testified that the defendant, Phillips and Good returned to Phillips’ house after the robbery. There was no “third party.”

In his own statement, the defendant implicates himself in discussing the proposed robbery, concedes that he “cased” the store along with Phillips and Good but thought the robbery would be risky because of the location of a mirror and the possibility of a burglar alarm, that he was in Phillips’ house immediately before and after the robbery and observed Phillips, Good and the “third party” divide money from the robbery, and that he and Good fled together when they saw police officers coming to Phillips’ house. In his statement the defendant said they left by the back door, went down the alley to a filling station and paid a cab driver $50 to take them to St. Louis. They bought two bus tickets to Chicago but took a plane to Chicago because the defendant thought the bus would be stopped by the police when it passed through East St. Louis. Both the defendant and Good bought plane tickets under aliases, the defendant said in his statement. (Some of this evidence of flight, it should be mentioned, may not be totally without an ambiguous aspect. It appears from the record that the defendant and Good had been charged with murders in Chicago and the defendant simply may not have wanted to undergo questioning by East St. Louis police.) Except for Phillips’ claim that he was coerced, the content of Phillips ’ statement was practically the same as other evidence properly before the jury. Phillips’ statement was not referred to in closing argument to the jury, and a cautionary instruction was given regarding the weight to be accorded the testimony of an accomplice witness. On this record we conclude that the error as to Phillips ’ statement, even measured by the standard for constitutional error, was harmless beyond a reasonable doubt. See Brown v. United States (1973), 411 U.S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565; Schneble v. Florida (1972), 405 U.S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056; Harrington v. California (1969), 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726; People v. Gant (1974), 58 Ill. 2d 178; People v. Gill (1973), 54 Ill. 2d 357.

Next we consider whether the defendant’s attorney served under a conflict of interest at his trial. The defendant contends there was a conflict of interest because he and Phillips were each represented by assistant public defenders, each of whom was serving in the office of the public defender of St. Clair County.

About a week before the defendant’s trial his attorney, Assistant Public Defender Hay, learned that the State might call Phillips as a witness. On the day of trial, but before it began, Hay moved for leave to withdraw as the defendant’s attorney on the ground that another assistant public defender had represented Phillips, who had just been subpoenaed and was expected to be called as a prosecution witness. The trial court denied the motion.

Accepting, arguendo, the defendant’s thesis that the representation of the defendant and Phillips was tantamount to joint representation, our discussion should begin with the observation that it has been recognized that requiring or permitting one attorney to represent multiple defendants is not &per se violation of the right to effective assistance of counsel. Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; People v. Vriner (1978), 74 Ill. 2d 329, 337; People v. Precup (1978), 73 Ill. 2d 7, 10; People v. Berland (1978), 74 Ill. 2d 286, 300; People v. Durley (1972), 53 Ill. 2d 156, 160.) The Supreme Court in Holloway v. Arkansas (1978), 435 U.S. 475, 482, 55 L. Ed. 2d 426, 433, 98 S. Ct. 1173, 1178, stated:

“One principle applicable here emerges from Glasser without ambiguity. Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney ***."

Thus, codefendants tried separately, as here, may be represented by a single attorney or, by extension, by individual assistant public defenders, in the absence of circumstances which would require different counsel. The defendant was represented by an assistant public defender who had not represented Phillips or Good, and was given a separate trial. The record shows that his defense was conducted vigorously and ably.

The defendant’s contention here that his right to cross-examine Phillips was in some way restricted because of Phillips’ representation by the public defender’s office appears to have been first articulated on his appeal. No complaint of any impairment of the right to cross-examine was made at trial or on the defendant’s motion for a new trial. That there was no impairment of cross-examination, however, is evidenced by the fact that the defendant’s attorney waived cross-examination of Phillips. The waiver was not because the attorney claimed any handicap in cross-examining Phillips due to his representation by the public defender’s office; he did not exercise his right to cross-examine because he didn’t “feel that there was anything to cross-examine him on.” This was said by the defendant’s attorney after the trial court had at least twice told him he could cross-examine Phillips. The attorney’s objections at the time were directed against receiving Phillips ’ statement. The record indicates that he acknowledged his right to cross-examine and that he simply did not want to question Phillips concerning his statement. Factors sometimes found in cases of conflicts of interest involving cross-examination were absent here. There was no claim that there was any ethical or professional inhibition against the defendant’s attorney bringing out or requiring Phillips to divulge any confidential information on cross-examination. There was no statement by the defendant’s attorney that he had any confidential information because of Phillips having been represented by another assistant public defender. The defendant’s attorney did not show or claim a feeling of any conflicting duty to Phillips. He presented testimony from three witnesses that was in contradiction to Phillips ’ statement. The trial court did not err in denying what was, on this record, simply a formal motion to withdraw as counsel. The sixth amendment would, of course, interdict representation by an attorney who was representing conflicting interests. That was not the case here. There were no divided loyalties to cause the defendant’s attorney to sacrifice his client’s interest in any way.

For the reasons given, the judgment of the appellate court, reversing the judgment of the circuit court of Randolph County and remanding the cause, is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE CLARK,

concurring:

I concur in the decision and judgment of the court, but I am concerned that the majority’s assumption, arguendo, that joint representation exists may lead to confusion and may be seen as inconsistent with our recent decision in People v. Robinson (1979), 79 Ill. 2d 147. We held there that a public defender’s office is not an entity sufficiently similar to a law firm to invoke a per se conflict of interest rule whenever two or more assistant public defenders separately represent alleged coperpetrators of an offense. Therefore, by assuming, even for the sake of argument, that joint representation exists, the majority herein accepts a thesis which has been rejected by this court. I think the preferable approach would be to decide that there was no joint representation in this case. Since the defendant hinges the presence of a conflict of interest, and consequently ineffective assistance of counsel, upon the establishment of joint representation, it would seem that once no joint representation was found, the remainder of defendant’s contentions must fail.