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People v. Mccalvin





APPEAL from the Circuit Court of Cook County; the Hon. PHILIP ROMITI, Judge, presiding.


The defendants, Frank Morgan and Walter McCalvin, were found guilty of murder, burglary, and six counts of armed robbery, and not guilty of rape. The occurrences that gave rise to the charges all occurred on the night of April 12, 1970. The court imposed concurrent sentences of 5 to 15 years for burglary, 15 to 30 years on each of two counts of armed robbery, and 20 to 60 years on each of four counts of armed robbery. Morgan was sentenced to a term of 100 to 199 years for murder, and McCalvin to a term of 75 to 125 years for murder.

The record shows that the defendants entered an apartment hotel by climbing through a window adjacent to a telephone pole. They then forced their way at gunpoint into the apartment of the manager of the hotel. They kept the manager's wife captive while they searched the apartment, from which they took money and a rifle and shotgun that belonged to the manager. When the manager arrived at his apartment, he too was robbed. He and his wife were forced to accompany the defendants to the main floor of the hotel, where the cashier was robbed, and then into the bar, where the patrons were robbed and one of them was shot and killed. Several witnesses identified the defendants, and their confessions were introduced in evidence.

On this appeal the defendants do not dispute that the evidence established their guilt beyond a reasonable doubt. They first assert, however, that they were deprived of a fair trial by reason of certain statements made by their respective attorneys to the trial judge out of the presence of the jury, and by the introduction into evidence of the blood-stained jacket which had been worn by the murder victim. They also contend that section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702-7) deprives them of equal protection of the law, and that the sentences imposed were excessive.

Before the jury was selected the attorneys for the defendants told the trial judge that each of them had advised his client to enter a plea of guilty. Subsequently, the defendant McCalvin testified in his own behalf, and before he did so his attorney told the trial judge, out of the presence of the jury, that he had advised his client not to take the witness stand. It is asserted that by reason of these occurrences a conflict of interest was created between the defendants and their attorneys, which requires that the convictions be reversed.

The defense attorneys had obtained discovery during the hearings on their motions to suppress the lineup identifications and the defendants' confessions. They had examined the transcript of the coroner's inquest, interviewed prosecution witnesses, and conducted other investigations. With this knowledge they conducted negotiations which resulted in an offer by the prosecution to waive the death penalty and to recommend the imposition of a single concurrent sentence upon all the charges, if the defendants pleaded guilty. The concern of the attorneys that a record be made of their advice to their clients against the possibility of a post-conviction charge of incompetence is understandable.

The defendants' contention that the conduct of the attorneys in making a record in the manner that they did "created a conflict of interest which denied the defendants of the right to counsel" is based primarily upon the American Bar Association Standards Relating to the Defense Function which were approved after this case was tried. Standard 5.2(c) states "If a disagreement on significant matters of tactics or strategy arises between the lawyer and his client, the lawyer should make a record of the circumstances, his advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relation."

This Standard clearly recognizes that it is desirable that a record be made of a significant disagreement between the lawyer and his client. We agree that it would have been better if the attorneys' advice to their clients with respect to the plea of guilty had not been communicated to the trial judge but had been otherwise handled — perhaps in the method suggested in the Commentary: "A disagreement between counsel and the accused on a decision to be made before or during the trial may be the subject of post-conviction proceedings questioning the effectiveness of the lawyer's performance. Rather than leave the matter to be determined on the strength of the memories of the lawyer and client, which are invariably in conflict if the issue arises, some record should be made. This may be accomplished by a notation of the nature of the disagreement, the advice given, and the action taken, either in the lawyer's file or by letter to the client, depending upon the gravity of the problem." (Standards, pp. 240-241.) But because this precise method was not followed we see no reason to conclude that a conflict existed between the defendants and their attorneys.

We reach the same result with respect to the objection based upon the fact that McCalvin's attorney told the trial judge that he had advised his client not to take the witness stand. The problem faced by a defense attorney in such a situation is dealt with in Standard 7.7 of the Standards Relating to the Defense Function and the Commentary to that Standard. The Commentary states: "Because the lawyer may later have his conduct called into question when his client testifies against the advice of counsel, it is desirable that a record be made of the fact. However, if the trial judge is informed of the situation, the defendant may be unduly prejudiced, especially at sentencing, and the lawyer may feel that he is caught in a dilemma between protecting himself by making such a record and prejudicing his client's case by making it with the court. The dilemma can be avoided in most instances by making the record in some other appropriate manner, for example, by having the defendant subscribe to a file notation, witnessed, if possible, by another lawyer." Standards, pp. 276-277.

Again it is possible to conclude, in the light of materials now available, that it would have been preferable to have followed a different method in recording the disagreement. But we are not persuaded that there was such a conflict of interest as would warrant reversal or that the defendants' right to a fair trial was prejudiced. An examination of the record discloses that both defendants were vigorously and competently represented.

The defendants' second contention concerns the blood-stained jacket worn by the deceased, which was identified and received in evidence during the prosecution's case in chief. At that time, however, the trial judge reserved his ruling as to whether the jacket would be shown to the jury. The defendant McCalvin testified that the fatal shot was not fired by one of the two defendants but rather by a third person who fired from the doorway of the bar. Expert testimony was then offered in rebuttal by the prosecution to the effect that examination of the jacket revealed powder stains which indicated that the shot had been fired at close range. The jacket thus had significant probative value, and it was not error to receive it fully into evidence.

The next contention of the defendants is that they were denied equal protection of the law by section 2-7 of the Juvenile Court Act, which provided:

"(1) Except as provided in this Section, no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.

(3) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, the State's Attorney shall determine the court in which that minor is to be prosecuted; however, if the Juvenile Court Judge objects to the removal of a case from the jurisdiction of the Juvenile Court, the matter shall be referred to the chief judge of the circuit for decision and disposition. If criminal proceedings are instituted, the petition shall be dismissed ...

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