WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JAMES R. BRYANT, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
After a jury trial in the criminal court of Cook County, the defendant, Robert Wolff, was jointly convicted with Paul Sheppard of armed robbery and was thereafter sentenced to the penitentiary for a term of not less than ten nor more than twenty-five years. Upon writ of error he now contends that he was deprived of competent counsel and was wrongfully denied the right to examine certain documents allegedly possessed by the prosecution.
The record indicates that at approximately 10:15 A.M. on the morning of August 16, 1956, two armed men, one short and one tall, entered the second-floor office of the Prime Rib Restaurant in Skokie, and forced the restaurant employees into a liquor storage room which contained the business safe. The employees were ordered to face the wall with their hands raised while the bandits attempted to learn the safe combination. This having failed, David Kreda, the restaurant steward, was forced to accompany the taller of the pair to the office, where the desk and chest drawers were ransacked, while the shorter bandit remained in the liquor room with the other employees. Upon completing the search, the taller robber returned to the storage room and required each of the victims to deliver up their wallets after which the pair made their escape. Both Kreda and Ossie Glenn, the restaurant porter, identified defendant as the taller man and Sheppard as the shorter one. No witnesses were offered by either of the accused and neither testified in his own behalf.
On the day prior to trial in this cause, being January 7, 1957, a hearing was had upon Wolff's motion to suppress certain evidence which had allegedly been wrongfully obtained, and at the close thereof, one jury panel was selected and sworn. On the following day, while in the midst of selecting the second panel, the court-appointed attorney for Wolff and Sheppard filed a written motion for leave to withdraw as attorney for either or both of the accused parties because it had "become apparent to him that a conflict in interest exists between the two said defendants; that so long as he represents both of said defendants he will be unable to afford either of them effective and impartial assistance of counsel." After conducting a hearing upon the motion to withdraw outside the presence of the jury, the court denied the request on the grounds that it was not timely presented and that the nature and extent of the conflict were not disclosed. This ruling is the basis for defendant's claim that he was denied competent counsel.
Our Criminal Code provides, and this tribunal has consistently held, that appointed counsel must be competent to conduct the defense of the accused. (Ill. Rev. Stat. 1955, chap. 38, par. 730; People v. Nitti, 312 Ill. 73.) The question of competency, however, is one of fact and is not based solely upon mere assertions. (People v. Street, 353 Ill. 60.) A motion by an attorney for leave to withdraw for any reason is addressed to the sound discretion of the court and, like all motions, it may or may not be meritorious. For that reason, a burden rests with the moving party to prove to the court's satisfaction the legitimacy of the request, and when the petitioner either fails or refuses to do so, the court may properly deny the motion. (People v. Rasmussen, 328 Ill. 332; People v. Dolgin, 415 Ill. 434.) At their arraignment on September 18, 1956, Wolff and Sheppard were both represented by the public defender and on November 7, 1956, he was allowed to withdraw and a Chicago Bar Association attorney was appointed in his place. Thereafter, counsel had some sixty-one days before trial within which to familiarize himself with the facts of the case and to determine whether any conflict of interests existed so as to warrant separate trials or at least separate attorneys. However, no motion for severance or withdrawal was filed or even suggested until the trial itself was underway, and even then the motion presented was unverified and not supported by affidavits or other proof. Rather, counsel merely asserted that a conflict of interest did exist which would become apparent to the court during the course of the trial.
In this respect the present case differs materially from People v. Rose, 348 Ill. 214, wherein affidavits were filed which detailed the divergent defenses, and from People v. Bopp, 279 Ill. 184, where the petitioner pointed out to the court the inconsistency of the co-defendants' positions. Here, not only did counsel fail to show that a conflict of interest actually existed, but also, contrary to his prediction, such did not become apparent during the trial itself. Under these circumstances it is our opinion that the lower court did not err in refusing to allow the withdrawal of counsel at such late date. Furthermore, even if we were to hold otherwise, it is difficult to see how defendant could have been prejudiced thereby since neither he nor Sheppard testified, offered any evidence, or asserted any defense which could have been affected by adverse positions. People v. Dolgin, 415 Ill. 434; People v. Courtney, 307 Ill. 441.
Defendant's remaining contentions bring into focus our decision in People v. Moses, 11 Ill.2d 84. All authorities examined agree that use of documents produced under the rule is restricted to impeachment, thus it is held that only statements or reports which could properly be called in the witness's own words should be made available to the defense. More specifically, as pointed out by the Supreme Court of the United States, the demand must be for "specific statements which had been written by the witness or, if orally made, as recorded by agents of the Government." (Palermo v. United States, 360 U.S. 343, at 345-346, 3 L.ed.2d 1287, at 1292.) Federal criminal procedure was codified by Public Law 85-269, Sept. 2, 1957, which provides in part: "(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than defendant) to an agent of the Government shall be the subject of subpoena, discovery or inspection until said witness has testified on direct examination in the trial of the cause. * * * (e) The term `statement' as used * * * in relation to any witness called by the United States means (1) a written statement made by said witness and signed or otherwise adopted and approved by him; or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement." Title 18 U.S.C. § 3500; see also Palermo v. United States, 360 U.S. 343, 3 L.ed.2d 1287.
While some of the cited decisions, and others, contain language which suggests that the foundation evidence must likewise establish that the statement or report made by the witness is contradictory to his testimony at the trial, that concept has been discarded in later cases as being manifestly unfair, (since contradiction can hardly be determined until the statement is produced,) and the better view, to which we subscribe, is that "For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule." Gordon v. United States, 344 U.S. 414, at 420, 97 L.ed. 447, at 454; Jencks v. United States, 353 U.S. 657, 1 L.ed.2d 1103.
There has been sharp disagreement as to what should next occur after a proper foundation for a demand of the documents has been laid. An early view, employed where the foundation evidence itself had already disclosed the conflict between the testimony of a witness and his statement or report, was that the trial judge, upon inspection of the documents, had discretion to refuse or permit inspection and use by the accused, the theory being that impeachment on the basis of the documents would be merely cumulative. State v. Hayes, 127 Conn. 543, 18 A.2d 895, at 922; United States v. Socony-Vacuum Oil Co. 310 U.S. 150 at 234-235, 84 L.ed. 1129, at 1174.
Another view, and until recently the prevailing view, has been that delivery to the accused was required only where the trial judge's inspection revealed that the statement or report did in fact conflict with the testimony of the witness given at the trial. People v. Walsh, 262 N.Y. 140, 186 N.E. 422; People v. Shainuck, 286 N.Y. 161, 36 N.E.2d 94; United States v. Cohen, (2d cir.) 145 F.2d 82.
A third and completely different view was promulgated by our nation's highest court in Jencks v. United States, 353 U.S. 657, 1 L.ed.2d 1103, decided three months after we first adopted the rule in the Moses case. It was there held that the trial judge was not to examine the statements or reports to determine if they contained material inconsistent with the testimony of the witness before deciding whether he would turn it over to the defense, the court reasoning that once the statements had been shown to contain related material, only the defense is equipped to decide whether they have value for impeachment. (See: Palermo v. United States, 360 U.S. 343, at 346, 3 L.ed.2d 1287, at 1292.) Justices, who either separately concurred in the result or dissented entirely, disagreed with such a sweeping change saying: "The trial judge exercises his discretion with knowledge of the issues involved in the case, the nature and importance of the Government's interest in maintaining secrecy, and the defendant's need for disclosure. By vesting this discretion in the trial judge, the conflicting interests are balanced, and a just decision is reached in the individual case without needless sacrifice of important public interests." 353 U.S. at 677, 1 L.ed.2d at 1117.
Congress was quick to react to the Jencks decision and passed Public Law 85-269, Sept. 2, 1957, which, as stated in the Palermo case, was drafted "to clarify and delimit the reach of Jencks." Insofar as it relates to the exercise of discretion by the trial judge, the pertinent provisions of the law are as follows:
"(b) After a witness called by the United States, has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statements (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of ...