Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE N. LEIGHTON, Judge, presiding.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial, Joseph Mason, Huery Davis and David Parker were found guilty of the theft of an automobile. Mason was sentenced to one to three years in the penitentiary. In a separate appeal, defendant Mason contends that he was denied effective assistance of counsel because the same Assistant Public Defender represented the three defendants when they had antagonistic theories of defense.
On August 24, 1965, the Chicago police curbed an automobile in which the three defendants were riding. Defendant Mason was driving. The three were arrested after the police ascertained that Mason had no driver's license and that the ignition had been tampered with. Later, the police determined that the car was stolen, and that it belonged to Lucius Shaw. At the trial, two police officers testified for the State and related the details of the arrest and the interrogation of each defendant.
For the defense, each of the three defendants testified in his own behalf. Davis testified first. He stated that he was inivited by Mason to take a ride in the car with Parker and Mason. He had not seen the car before, and Mason told him it belonged to a friend. Mason and Davis waited across the street in a liquor store for Parker to leave the laundromat where he worked and to join them. The three then drove away and were arrested shortly thereafter. The trial judge examined Davis, and he stated that he did not know who owned the car, and he knew that the car did not belong to either of the other two.
Parker testified next. He had known Mason and Davis for several months. He worked in a laundromat, and at about 1:00 a.m., Mason and Davis were parked in a car in front of the laundromat. He joined them when he "locked up the business," and they went to get a drink. He had never seen the car before and told the police he did not know it was stolen.
Defendant Mason testified last. He stated that he and Davis had been drinking with Parker at the laundromat, and they were waiting for him to close. While there, "James Brown" joined them. Brown had a car, and "we all four gets in the car." Brown drove them to a tavern, where Brown got out and entered. They were double-parked, with the motor running, and Brown, while standing in the tavern doorway, told them to park the car and to go in and drink. Mason "happened" to be the one who got under the wheel and, while driving, Davis told him the police were following, and Mason pulled over and parked. He did not know the car was stolen.
On cross-examination, defendant Mason said the police asked him questions about the possession of the car, and he told the police that "we had got the car from a girl friend of Parker's. That was not the truth. I was lying to them then. The three of us kept switching stories back and forth. Davis said we got the car from Parker's girl friend, too. That was a lie too. Parker said no. I can't recall what he said at the time. But everybody went against each other, sort of, whatever one said, the other one stated something else. . . . I told the police officers about Brown."
Mason was examined by the trial judge regarding Brown and stated, "I gave my lawyer his address. I gave him the place he was working and living. Brown is single to my knowledge. The last time I saw him was when I was out on bond. He was at the laundromat. I asked him about this car and he said that he wasn't going to take the blame for it."
In rebuttal, one of the arresting police officers, James Tobin, testified that he had never heard the name Brown during the investigation nor at the time of the arrest of the three defendants.
Before finding defendants guilty of "theft," the trial judge carefully reviewed the evidence. As to the testimony of Mason regarding Brown, the court remarked, "I don't believe that story, I don't believe that at all."
Defendant Mason contends that the failure of the trial court to appoint separate counsel for Mason when the conflict in the defendants' testimony was revealed requires reversal. Defendant asserts: "In the instant case, as the trial progressed, it became apparent that the interests of the three defendants were in conflict and that no lawyer could represent Davis and Parker and give complete loyalty to defendant Mason. When such conflict manifested itself, the court had a duty to suspend proceedings and appoint separate counsel. (Craig v. U.S., 217 F.2d 355; People v. Robinson, 269 P.2d 6; Lollar v. U.S., 376 F.2d 243 (DC Cir 3/20/67) No. 20300.) The court must appoint separate counsel even though defendant did not specifically request separate and distinct counsel. (Lollar v. U.S., supra.) An indigent defendant with little education, cannot be expected to comprehend the existence of conflict or the need for separate counsel. People v. Harris, 155 F. Supp. 17. Nor is a reviewing court permitted to speculate that a conviction would have occurred even if the defendant was given effective assistance of counsel. `The right to have assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' Glasser v. U.S., 315 U.S. 60; Craig v. U.S., 217 F 355; People v. Robinson, 269 P.2d 6; Lollar v. U.S., supra; Anderson v. U.S., 352 F.2d 945."
In Craig v. United States, 217 F.2d 355, it is said (p 359):
"We think it follows from the foregoing findings that although Craig was in no way `deprived' of his right to independent counsel of his own choosing by any act of the District Judge or District Attorney, nevertheless, by reason of a combination of circumstances, not reasonably foreseeable by Court or counsel, he did not receive the effective assistance of counsel to which he was entitled under the Sixth Amendment, and that under the particular circumstances of this case he did not intelligently and voluntarily waive such right."
Defendant relies heavily on Lollar v. United States, 376 F.2d 243. There Lollar argued on appeal that requiring him to share an attorney with his co-defendant deprived him of his constitutional right of effective assistance of counsel. The court agreed and said (p 246):
"It remains to be considered whether appellant was prejudiced by joint representation. It is settled that some prejudice, some conflict of interest, resulting from the joint representation must exist before one can be said ...