APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
After a jury trial, in the circuit court of Kane County, the defendant, Albert Stoval, was found guilty of the crimes of burglary and theft of jewelry having a value of more than $150. The defendant was sentenced to the Illinois State Penitentiary for not less than one year nor more than six years. Subsequently, the defendant filed a petition in the Kane County circuit court seeking relief under the Post-Conviction Act. After a hearing defendant's petition for relief was denied and the defendant now appeals that judgment to this court under Rule 651.
On January 10, 1965, at approximately 9:00 P.M., the display window of "Navarro's The Diamond House Limited," of Aurora, was smashed and jewelry valued at $350 was taken. A cab driver named Buerger was about 75 feet from the store and witnessed the burglary. Buerger saw the man, who wore a dark jacket and dark slacks, duck into an adjacent alley after the burglary. He drove his cab to the exit of the alley and saw the suspect emerge from the alley and disappear around the street corner. At that time an Aurora police car arrived on the scene, and Officer Leifheit, too, observed the suspect turn the corner.
Shortly, thereafter, the defendant was arrested in a tavern located on the street into which the suspect had fled. Stoval conformed to the general description of the man who had been observed running down the street and he wore similar clothing. The defendant was taken to the burglary scene and there he was searched and jewelry, which it was ascertained had been taken in the burglary, was found in the defendant's jacket. Later, at the police station, the cab driver, Buerger, identified the defendant as the man he had seen running from the scene.
The defendant was indicted for burglary and theft and counsel was appointed to represent him. After a motion to suppress the evidence produced by the search of his person was denied, the defendant on June 18, 1965, pleaded guilty to the charges. He applied for probation and the court after a hearing denied the application and sentenced the defendant to one to four years in the penitentiary.
On June 28, 1965, the defendant moved to vacate the judgment and sentence on the ground that he had pleaded guilty to the charges only because his attorney had represented to him that the State would recommend probation. The State had opposed his application for probation. The court granted the motion, relieved the attorney who had been appointed and, reinstating the case on the trial call, appointed another attorney.
Three weeks later, the defendant was tried before a jury and found guilty of the crimes charged. He was sentenced by the court, this time to serve one to six years in the penitentiary.
The defendant on this appeal claims that his conviction should be nullified because of constitutional errors, but it will be necessary for us to consider only one of the errors asserted, viz., that the defendant was denied the effective assistance of counsel at his second trial.
The right to the effective assistance of counsel is a fundamental right and entitles the person represented to the undivided loyalty of counsel. (Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) In Porter v. United States (5th cir.), 298 F.2d 461, it was said: "The Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents as a vigorous advocate having the single aim of acquittal by all means fair and honorable are hobbled or fettered or restrained by commitments to others."
Here, the law firm of which the defendant's second appointed counsel was a member, had represented both the jewelry corporation (the store which had been burglarized) and Navarro (the owner). Too, counsel had himself personally represented the Navarro Jewelry Store and Navarro, individually, in the past. At the present time the law firm continues to represent both the jewelry store and Navarro.
Under similar circumstances (i.e., where the defendant's counsel represented the victim of the burglary in an unrelated civil suit) a United States District Court recently in United States v. Myers, (E.D. Pa. 1966), 253 F. Supp. 55, 57, found that the defendant's constitutional right to counsel was abridged, stating: "It takes no great understanding of human nature to realize that the individuals who had 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. Moreover, if the case had gone to trial it might have meant an investigation involving the Carpenters [the owners of the store which had been burglarized] and even cross-examination of them on the stand. The entire situation could be very embarrassing for the lawyer who is naturally interested in having the legal business of the Carpenters, especially when they are much more able to compensate him for his services than the defendant. The circumstances here are such that an attorney cannot properly serve two masters. * * * [H]is [defendant's] right to counsel under the Constitution is more than a formality, and to allow him to be represented by an attorney with such conflicting interests as existed here without his knowledgeable consent is little better than allowing him no lawyer at all. See Gideon v. Wainright, 372 U.S. 335 (1963), 9 L.Ed.2d 799, 83 S.Ct. 792. This situation is too fraught with the dangers of prejudice, prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a violation of relator's rights whether or not it in fact influences the attorney or the outcome of the case."
There is no showing that the attorney did not conduct the defense of the accused with diligence and resoluteness, but we believe that sound policy disfavors the representation of an accused, especially when counsel is appointed, by an attorney with possible conflict of interests. It is unfair to the accused, for who can determine whether his representation was affected, at least, subliminally, by the conflict. Too, it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later charges that his representation was not completely faithful. In a case involving such a conflict there is no necessity for the defendant to show actual prejudice. Glasser v. United States, 315 U.S. 60; Goodson v. Peyton (4th cir.), 351 F.2d 905.
It cannot be said that there was a knowing waiver by the defendant of his right to representation by counsel unhindered by any conflict of interests. The record shows that the attorney did advise the defendant of his representation of the ...