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People v. Husar

SEPTEMBER 10, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GREGORY HUSAR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR V. ZELEZINSKI, Judge, presiding.

MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

Gregory Husar was convicted of possession of marijuana, an offense defined and punished by the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56 1/2, pars. 701 et seq.). *fn1 He was sentenced to two years probation with the requirement that he serve the first ten days in the Chicago House of Correction. The following are the facts.

On December 16, 1971, at about 9 P.M., an informer told three Chicago police officers that at the intersection of Armitage and Fremont, for the sum of $5, he purchased a plastic bag of crushed green plant from "Fred" who, the informer said, was driving a yellow Camaro convertible with Illinois license number 7212. A few moments later, the officers went to that intersection and they saw a yellow Camaro convertible with Illinois license number 7212 making a right-hand turn. The owner and driver was Lawrence Barba. The front seat passenger was Gregory Husar. Acting on the information given by the informer, the officers stopped the car. When one of them looked into it, he saw a clear plastic bag resting on a console between the driver and the front seat passenger. On the floor, in front of the passenger, was a brown bag. Subsequent laboratory tests showed the two bags contained 230 grams of marijuana. Husar and Barba were arrested; a short time later, they were charged possession of cannabis sativa, commonly known as marijuana.

On the day their case came to trial, the court appointed the public defender of Cook County to represent them. The assistant public defender who undertook the assignment was given the files of the case, given an opportunity to talk with the defendants and told that he could have as much time for trial preparation as he thought necessary. Then, speaking directly to the two defendants, the trial judge told them that if they desired, they could have a continuance to obtain private counsel. No request was made either for additional time or for a continuance. Instead, the assistant public defender, after conferring with the defendants, announced he was ready, that jury would be waived and that he was prepared to begin with a motion to suppress evidence. Defendants were admonished concerning their right to trial by jury, and the cause proceeded.

In support of the motion, the assistant public defender called two witnesses: one of the arresting officers and Barba. After the two had testified, and the lawyer had urged a ruling in defendants' favor, the trial judge denied the motion. Thereupon, the parties stipulated that the evidence which had been heard could be considered as part of the State's case in chief. To supplement the stipulation, the State called as its witness the same arresting officer, who then testified concerning the two bags and the chemical tests which determined their contents were marijuana. With that, the State rested its case and defendants moved for a directed finding of not guilty. The court denied the motion.

After this ruling, Husar testified in his own behalf. He admitted he was the front-seat passenger in the yellow Camaro; and at the end of his testimony, he admitted that the two bags of marijuana found in the car belonged to him. When he was cross-examined, Husar again admitted that the marijuana was his, and then insisted that Barba did not know the bags were in the Camaro. Barba then testified and denied that on the occasion in question he knew the two bags of marijuana were in his automobile. After hearing the evidence and counsel in summation, the trial judge acquitted Barba and found Husar guilty.

In this appeal, and in accordance with Supreme Court Rule 711, *fn2 his brief has been prepared by three senior DePaul University law students, Lee Boyd, Hank Browne and Ruth Schmitt, who volunteered their services and whose work has been supervised by Ronald D. Goldberg, a member of the bar of this court and assistant professor in the College of Law, DePaul University. On Husar's behalf, and from these facts, they present seven issues for our review. 1. Whether Husar had the right to appointment of separate counsel to represent him. 2. Whether the dispatch with which the assigned assistant public defender proceeded with the defense deprived Husar of his right to effective assistance of counsel. 3. Whether Husar's court-appointed counsel was incompetent. 4. Whether this court will consider extrinsic evidence which would show that Husar was denied effective assistance of counsel. 5. Whether Husar waived his claim that the trial court erred when it denied the motion for directed finding at the close of the State's case. 6. Whether Husar was proven guilty beyond a reasonable doubt. 7. Whether probation subject to the requirement that Husar be imprisoned for 10 days is now, for this case, a legally permissible sentence.

I.

• 1, 2 The right to counsel that is guaranteed by the Sixth Amendment to the Constitution of the United States does not include an automatic right to separate counsel in a case involving more than one defendant. (People v. Chacon (1968), 69 Cal.2d 765, 773, 774, 447 P.2d 106, 73 Cal.Rptr. 10, 15.) One counsel in a case against multiple defendants can represent more than one, as long as the representation is effective and it does not appear that conflicts of interest between or among defendants can be anticipated. (Powell v. Alabama (1932), 287 U.S. 45, 71, 77 L.Ed. 158, 53 S.Ct. 55; People v. Robinson, 42 Ill.2d 371, 247 N.E.2d 898; see People v. Williams, 36 Ill.2d 194, 222 N.E.2d 321.) However, a criminal conviction will not be reversed because of conjectural or speculative conflicts of interest which are envisioned for the first time on appeal. (People v. McCasle, 35 Ill.2d 552, 556, 221 N.E.2d 227.) The record must show that at the time counsel was appointed, there existed a possibility of prejudice from joint representation. Compare People v. Chacon (1968), 69 Cal.2d 765, 73 Cal.Rptr. 10.

• 3 In this case, the claim of conflict of interest is based only on the fact that Husar testified and admitted that the marijuana involved belonged to him. It is argued for the first time in this appeal that Husar's testimony showed an interest different from that of Barba. We do not agree. The fact that a jointly represented defendant confesses his guilt in court does not prove a conflict of interest. In People v. Bass, 101 Ill. App.2d 259, 243 N.E.2d 305, two defendants were charged with robbery. Near the end of their trial, one of them testified and on direct examination admitted that he committed the robbery and insisted that his co-defendant was not involved in the crime. We held that this did not show a conflict between defendants, one that precluded their being represented by the same court-appointed counsel. Therefore, we conclude that Husar did not have the right to have separate counsel appointed to represent him. Compare People v. Mason, 91 Ill. App.2d 118, 234 N.E.2d 351; see Annot., 34 A.L.R. 3d 470, 484 (1970).

II.

When the assistant public defender learned of the appointment to represent Husar and Barba, he conferred with the two defendants. The record does not disclose the length of time devoted to the conference. It does disclose, however, that the charge was a felony. The two defendants were arrested on December 15, 1971, and the complaint against them was filed the following day. Then, after a hearing and setting of bond, the case was continued to February 15, 1972, the day of the appointment. Therefore, Husar and his co-defendant had been given 60 days to seek counsel and prepare for trial.

At the end of his conference with defendants, the assistant public defender announced that he was ready. After waiver of jury was recorded, the assistant state's attorney asked leave to reduce the charge from a felony to a misdemeanor, the only class of cases assignable to that court. Therefore, as a consequence of the decision to go to trial immediately, Husar received the benefit of reduction to a misdemeanor of a charge for which he could have been sentenced to a penitentiary term of not less than one nor more than 3 years. (See Ill. Rev. Stat. 1971, ch. 56 1/2, par. 704(d).) Moreover, this is not a case in which the record discloses that the assistant public defender never talked to the defendant. (See People v. Birdette, 22 Ill.2d 577, 177 N.E.2d 170.) It is not a case in which a defendant claims, without denial by the State, that his court-appointed counsel never conferred with him prior to trial. (See People v. Garrison, 43 Ill.2d 121, 251 N.E.2d 200.) Nor is it a case in which the trial judge restricted the assistant public defender to 5 minutes within which to talk to the defendant, would not permit conversation between them in a private room and insisted on immediate trial over the objection of court-appointed counsel. See People v. Shiffman, 350 Ill. 243, 182 N.E. 760.

• 4 Instead, this is a case in which an assistant public defender was appointed for two defendants, was given the file of the case, was given the opportunity to confer with defendants with the understanding that he could have all the time he needed, was told that he could obtain a continuance if he wanted one and defendants were told they could have a continuance to obtain private counsel. After a period of consultation that appeared to satisfy defendants, the assistant public defender announced he was ready and proceeded with the defense with a dispatch which not only was free of any discernible injury to Husar but in fact accrued to his benefit. Denial of effective assistance of counsel must result in substantial prejudice. (People v. Palmer, 31 Ill.2d 58, 65, 198 N.E.2d 839; People v. Goerger, 52 Ill.2d 403, 288 N.E.2d 416; People v. Thomas, 51 Ill.2d 39, 280 N.E.2d 433.) In this case, Husar was not prejudiced by the fact that the assistant public defender upon being appointed, and soon after a consultation, immediately announced he was ready for trial. (See People v. ...


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