Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from a conviction of robbery for which the defendant was found guilty after a jury trial and was sentenced to the penitentiary for fifteen to forty-five years.
The defendant, Thomas Bass, was tried jointly with one Cleon Robbins, and both were represented by the same appointed counsel. Both defendants were found guilty, and the appeal of Robbins was prosecuted separately and was decided by this court in People v. Robbins, 88 Ill. App.2d 447, 232 N.E.2d 302.
The defendant contends on appeal that he was denied effective assistance of counsel because counsel was confronted with a conflict of interests which was detrimental to him, and that this conflict was so apparent as to impose a duty upon the trial court to either require new counsel or a separate trial. The defendant further contends that he was denied due process of law by being subject to a pretrial confrontation of witnesses without the use of a lineup procedure and without the assistance of counsel.
On December 12, 1964, two men entered the Chateau Du Roi Hotel. The hotel house detective, Andrew King, was disarmed by one of the men, but when the other man discovered that the cashier, Estelle Williams, was calling the police, both men fled from the premises. Shortly thereafter, two police officers, having received a radio call concerning an armed robbery in the area, saw two men proceeding rapidly down the street and ordered them to stop. These two men were the co-defendants, Bass and Robbins. Robbins stopped while Bass ran, whereupon Bass was shot in the hip by another police officer who had responded to the radio call. Bass was taken to the hospital for treatment of his wound and was subsequently brought to the police station, at which time he was interrogated and was viewed by Andrew King and Estelle Williams. Both witnesses positively identified the defendant as one of the men who had participated in the robbery which had occurred only a few hours earlier. The identification was made without the use of a lineup and without the presence of counsel representing the defendant.
The Public Defender was appointed to represent both defendants but subsequently withdrew from the case. Finally, counsel was appointed to represent both defendants at trial. The defendant at no time prior to the instant appeal made any objection to being jointly represented and jointly tried.
Both the defendant and Robbins pleaded not guilty to the charge of robbery. Robbins denied any participation in the crime, but near the close of the trial, the defendant, Bass, testified on direct examination that he did participate in the robbery and that Robbins was not involved in the crime but that a man named Eddie (whose last name and whereabouts were unknown to Bass) was his accomplice. Despite this testimony the jury, apparently relying on the positive identifications made by the state's witnesses, found both defendants guilty.
The defendant now contends that his appointed counsel was enmeshed in a conflict of interests due to the denials of Robbins and the admissions by Bass, and that as a result of this conflict, counsel "martyred" Bass in an attempt to gain an acquittal for Robbins. In view of this alleged conflict, the defendant argues that the trial judge was under a duty, on its own motion, to require either new counsel or separate trials. This court fails to perceive any conflict between the interests of the co-defendants. A finding of adverse interests cannot be based solely on mere assertions and unless the defendant can establish that such a conflict in fact existed at trial, this court will not indulge in speculation or conjecture to determine whether separate counsel was required. People v. McCasle, 35 Ill.2d 552, 221 N.E.2d 227. In the instant case, it has not been demonstrated that the interests of the co-defendants were conflicting or antagonistic. Neither Robbins nor Bass was attempting to establish his defense by implicating the other a classic example of conflicting and antagonistic interests which would justify a severance. Admittedly, the incriminating testimony of the defendant Bass is unusual in a case where co-defendants have pleaded not guilty, but this rarity does not affect our conclusion that there was no conflict between the co-defendants.
In People v. McCasle, 35 Ill.2d 552, 556, 221 N.E.2d 227, two defendants were tried jointly and convicted of armed robbery. One of the defendant's contentions on appeal was that the court on its own motion should have appointed separate counsel so as to adequately defend the interests of each defendant. Both defendants had denied knowing the other and each had separate alibis. In rejecting the defendant's argument, the court stated:
"There was no inconsistency in these defenses, and it was not improper for the same public defender to contemporaneously represent both defendants. As a general rule, jointly indicted defendants should be jointly tried unless their defenses are antagonistic, and a severance is neither required nor authorized where their defenses are not inconsistent. (Citing cases.) Additionally, there is no showing that defendant was prejudiced by counsel's representation of both him and his co-defendant, or that a different result might have obtained had separate counsel been appointed, and we ought not disturb a judgment on the basis of conjectural or speculative conflicts between the interests of co-defendants which are envisioned for the first time on appeal.
It is worthy of note that in the case at bar, as in the McCasle case, the defendant made no objection to such joint representation either before or during trial. It is this significant absence of objection which renders Glasser v. United States, 315 U.S. 60, 86 L Ed 680, inapposite to the case at bar. In Glasser, the defendant, an attorney himself, made specific objection when the trial judge appointed the defendant's attorney, whom the defendant had personally selected, to represent a co-defendant. Furthermore, counsel for Glasser expressed reluctance to represent both defendants due to several direct conflicts between the defenses of each defendant.
The defendant argues that counsel failed to vigorously cross-examine several of the state's witnesses and refused to present certain motions requested by the defendant, and that these omissions clearly indicated an apparent conflict which dictated a severance on the part of the trial judge. We cannot agree. Counsel informed the court that the requested motions would, in his judgment, serve no legitimate purpose and would only have a dilatory effect on the proceedings. There is no indication in the record that such a judgment was unfounded. The record is replete with evidence of defense counsel's attempts to protect the interests of both defendants during the course of the trial. At the inception of the trial, counsel made the following statement to the court:
"There is one other thing I wish to apprise the Court, and I just wish to reiterate for Mr. Robbins, Mr. Robbins' defense will be that, and as he contended all along, he was not a participant in this particular situation and, however, he has and is willing to stand trial in this cause together with Mr. Bass and it is our belief that both Mr. Bass ...