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People v. Brown

OPINION FILED MARCH 10, 1976.

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

v.

LORRAINE BROWN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The defendants, Lorraine Brown and Leonard Dismuke, were jointly tried before, and convicted by, a jury in the circuit court of Peoria County for the crime of felony theft. Brown was sentenced to 3 years' probation with 90 days of periodic imprisonment. Dismuke was sentenced to a term of from 1 to 3 years in the penitentiary.

On this appeal, defendants contend: (1) the trial court erred when it refused to permit their attorney to withdraw as counsel for either one of them due to a conflict of interest; and (2) the evidence of the value of the stolen property does not sufficiently support a conviction of felony theft.

At the trial, the evidence established that Paul Tyree, president of Danso-Tech Personal Development Institute, was inspecting the Institute's premises on Thanksgiving Day when he discovered that some stereo equipment had been taken from the Danso-Tech building and piled in boxes in the alley behind the building. Tyree noticed that the building had been broken into, and then he called the police.

A Peoria police officer arrived at the scene and also noticed the equipment. The officer left to obtain an unmarked police car so that he could establish surveillance over the area and apprehend the individuals, who had piled the equipment in the alley, when they returned to pick it up.

The defendants arrived in their car shortly thereafter, and some boys, who were with them, placed some of the equipment in the back seat of their car. Before all of the equipment could be placed in the car, the police approached, and the defendants sped off in their car, but were soon apprehended.

The defendants were jointly indicted and were both represented by the same privately retained counsel. Defense counsel entered his appearance on February 4, 1974, and participated in pretrial matters through March 22, 1974.

On March 25, 1974, the date scheduled for trial, the defendants' attorney moved to withdraw as counsel for either one of the defendants on the ground that a conflict of interest was present due to potentially antagonistic defenses. During a hearing on this motion, defense counsel asserted that the conflict arose out of the following situation:

"Brown would testify that, in accordance with her claim that she did not know that the stereo equipment was stolen, she told Dismuke to wait and see what the police wanted when they approached the defendants in the alley. Dismuke could testify to corroborate Brown's story and promote her claim of innocence but, by doing so, would allow himself to be impeached by evidence of his many prior convictions, which evidence would be seriously prejudicial to his own defense. Accordingly, Dismuke would be well advised not to testify."

The trial court denied this motion.

The alleged conflict of interest stems from the probability that defense tactics at trial could be influenced by counsel's joint representation of both defendants. In determining which tactics to adopt, joint counsel would be hampered by his obligation of loyalty to the interests of each defendant. According to defendants' theory, although it would be in Brown's best interest for counsel to advise Dismuke to provide the exculpatory testimony, nevertheless, Dismuke's best interest would be better served by advising him not to testify. (Defense counsel apparently resolved this dilemma by advising neither defendant to testify; the defendants presented no evidence at trial in their own behalf.) Defendants therefore urge that since their defenses were antagonistic, the trial court's refusal to permit their attorney to withdraw as counsel for either of them violated the right to the effective assistance of counsel.

The question involved here is whether, under the circumstances present, the employment of the same trial tactics and stratagems, or the failure to employ varying ones, by a single counsel on behalf of different defendants at a joint trial constitutes a denial of the right to the effective assistance of counsel.

• 1, 2 The sixth amendment right to counsel does not include an automatic right to separate counsel in a case involving more than one defendant. (People v. Husar, 22 Ill. App.3d 758, 318 N.E.2d 24.) One counsel in a case against multiple defendants can represent more than one, provided the representation is effective and it does not appear that conflicts of interest between or among defendants can be anticipated. Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55; People v. Robinson, 42 Ill.2d 371, 247 N.E.2d 898, cert. denied, 396 U.S. 946, 24 L.Ed.2d 248, 80 S.Ct. 385.

Defendants rely principally on People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421. In Ware, the Illinois Supreme Court noted that there was "complete antagonism" between the defense of the co-defendants because one had pled guilty and, prior to his being sentenced, he testified against the defendant. (See People v. Johnson, 46 Ill.2d 266, 265 N.E.2d 869.) Ware and Johnson, unlike the case at bar, presented situations in which the testimony of a co-defendant implicated the other defendant. Neither case supports the view that the interests of two defendants are antagonistic when one defendant is ...


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