APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
R. FREEDLUND, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Defendants Robert Somerville, Gail Somerville and Paul Langusch were convicted of armed robbery of Zayre's Department Store in Oak Lawn in a jury trial in the circuit court of Cook County, and sentenced to the Illinois State Penitentiary for a term of not less than ten nor more than twenty years. Their convictions were affirmed by the appellate court (71 Ill. App.2d 381), and their petitions for rehearing and leave to appeal to this court were denied.
Defendants then instituted proceedings under the Post-Conviction Act (Ill. Rev. Stat. 1965, ch. 38, par. 122-1 et seq.), alleging that they were denied the effective assistance of counsel as guaranteed by the sixth and fourteenth amendments of the United States constitution and the due process clause of the Illinois constitution because of counsel's incompetency and his representation of all defendants; that petitioner Gail Somerville was denied constitutional rights against unreasonable search and seizure; and that perjured testimony was knowingly used by the State in violation of the constitutional requirements of due process.
The circuit court granted, in part, the State's motion to dismiss defendants' post-conviction petition, but ordered a hearing on the allegations respecting the use of perjured testimony by the State. After such hearing the court denied defendants' petition, and they have appealed to this court.
We shall not delineate the facts relating to the crime itself, since defendants at no time contended that their conviction was not supported by the evidence. Moreover, this post-conviction proceeding is not intended to relitigate defendants' guilt or innocence, but rather to determine whether they were denied constitutional rights. People v. Collins, 39 Ill.2d 286, 288; People v. Ashley, 34 Ill.2d 402.
Defendants contend they were denied effective assistance of counsel at the trial in violation of the sixth and fourteenth amendments. The four Somerville brothers were tried for the robbery in question in three different trials in which they were represented by different attorneys. Defendants Robert and Gail Somerville and Paul Langusch were tried together here, and were represented in the trial court by a single attorney of their choice, M. Donald Ross, who was privately retained by them. The incompetency of trial counsel or his conflicting interests created by joint representation were not raised by defendants at the trial, or on appeal in any of the eight briefs filed on behalf of defendants Somerville, who were then represented by attorney Julius L. Echeles, or in the brief of attorney Alan Berg, filed for defendant Langusch.
Under these circumstances, where all of counsel's alleged trial errors and other facts relating to the issue of incompetency of his representation appear on the face of the record, that issue could properly be deemed res judicata. The concept of res judicata includes all issues actually raised and those that could have been presented but were not. (People v. Kamsler, 40 Ill.2d 532, 533; People v. Collins, 39 Ill.2d 286, 289.) In Collins we stated at p. 289: "The petitioner did not raise the issue of competency of his trial counsel in that appeal, thereby waiving it, and he cannot now use the Post-Conviction Hearing Act as a device to obtain another hearing under such constitutional claims."
Assuming, however, that the strict application of the doctrine of res judicata is relaxed, as this court has done "where fundamental fairness so requires" (People v. Hamby, 39 Ill.2d 290, 291), it is incumbent upon this court to determine whether defendants were denied effective assistance of counsel as guaranteed under the sixth and fourteenth amendments of the Federal constitution. Anders v. California, 386 U.S. 738, 744, 18 L.Ed.2d 493, 498, 87 S.Ct. 1396; Gideon v. Wainright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792.
Where defendant retains his own counsel, however, as in this case, there is substantial case law holding that the alleged incompetency of counsel presents no constitutional question for consideration in a post-conviction proceeding. People v. Clements, 38 Ill.2d 213, 215; People v. Farmer, 34 Ill.2d 218, 219; Davies v. People, 10 Ill.2d 11, 15; People v. Morris, 3 Ill.2d 437, 445.
The justification of this rule is explained in the Morris case at p. 445: "Any other rule would put a premium upon pretended incompetency of counsel; for, if the rule were otherwise, a lawyer with a desperate case would have only to neglect it in order to ensure reversal or vacation of the conviction."
Under the expanding concept of due process of law in many areas of criminal procedure (People v. Morris, 3 Ill.2d at 448), where representation by counsel of defendant's choice is of such low calibre as to amount to no representation at all, or reduces the court proceedings to a farce or a sham, defendant is denied the fair trial contemplated by the due process guarantees of the Federal and State constitutions. People v. Washington, 41 Ill.2d 16, 22; People v. Green, 36 Ill.2d 349, 351; People v. DeSimone, 9 Ill.2d 522, 531; People v. Reeves, 412 Ill. 555, 562-563.
Incompetency of that magnitude is not established, however, where retained counsel fails to object to inadmissible evidence (People v. Underhill, 38 Ill.2d 245, 254), or fails to move to suppress certain evidence and makes other errors of judgment or trial strategy. (People v. Washington, 41 Ill.2d 16, 21; People v. Green, 36 Ill.2d 349, 351; People v. Palmer, 27 Ill.2d 311, 314; People v. Hall, 413 Ill. 615.) Incompetency tantamount to "no representation" has been found from the totality of counsel's conduct at the trial. (People v. De Simone, 9 Ill.2d 522, 531.) In the De Simone case, counsel not merely made the defense of insanity in an unorthodox way, but showed lack of knowledge of basic criminal procedures and rules of evidence, resulting in almost a complete failure to develop a defense; failed to acquaint himself with the testimony of witnesses, and presented what was labelled as "a picture of utter futility" to the court and jury.
The record here presents quite a different picture of defendants' trial counsel. Counsel demonstrated skill in cross-examining witnesses, particularly the State's witness Arnold, reflecting thorough investigation of his background and emphasizing all discrepancies between his testimony and his prior signed statement. Counsel also manifested knowledge of the law in his instructions, and in his motion to dismiss the indictments, predicated on a very recent statute.
Defendants complain, however, that counsel failed to protect certain constitutional rights which were not intentionally relinquished. Among these rights were those delineated by the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620, which defendants claim were violated when counsel failed to object to the witness Arnold's ...