APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
J. KAPLAN, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendants George Brown, Andrew Craig, Grady Lewis, and Lee Taylor were each found guilty on one charge of burglary and two charges of armed robbery. A fifth defendant, Cleofus Hopkins, was found guilty of burglary. Following hearings in aggravation and mitigation, defendant Brown was sentenced for a term of from eight to 16 years on each count of armed robbery, and one to five years for the burglary; defendant Craig was sentenced to 12 to 30 years on each of the armed robbery counts, to be served consecutively, and two to 10 years for the burglary, to be served concurrently with the second sentence for armed robbery; defendant Hopkins was sentenced to serve one to three years for the burglary; and defendant Lewis received five- to 15-year sentences for each of the armed robberies, and one to five years for the burglary, to be served concurrently.
Defendants now appeal their convictions, presenting numerous issues: (1) whether defendants' representation at trial by their single, privately retained counsel violated their right to effective assistance of counsel; (2) whether the admission into evidence of certain photographs of a police lineup was proper; (3) whether the evidence was sufficient to convict defendant Brown of armed robbery; (4) whether the sentences imposed on defendants Craig and Brown were excessive; (5) whether the imposition of consecutive sentences on defendant Craig was proper; and (6) whether it was error for the trial court to refuse to call for examination a juror who, it was alleged after trial, may have known the defendants.
On May 15, 1973, Thomas Baldwin and T.J. Williams, employed by the W.L. Lillard Bureau of Investigation as armed security guards, were sent to guard a boarded-up liquor and drug store at 4068 S. Ellis Avenue in Chicago. There had been a fire in the store the previous day.
Baldwin and Williams arrived at the scene for their shift at approximately 5:45 p.m. At about 6 p.m., Williams made a routine check of the premises and observed defendant Taylor and another man climbing the back wall of the store in an attempt to enter the building. He told them to leave and they did. At about 6:15 p.m., Baldwin and Williams were approached by a group of men, including defendants Taylor, Craig, Brown, and Lewis. There was a brief conversation; the group left, only to return a few minutes later. This time one of the men told Baldwin and Williams to get in their car and leave. They refused, whereupon defendant Craig said they would get into the store one way or the other. The group left again, only to return once more. This time members of the group, including defendants Taylor, Craig, Brown, and Lewis, were armed with various weapons, including sawed-off shotguns and pistols.
Once again the security guards were ordered to get into their car and leave. When they again refused, they were disarmed and led to the basement of a building on East 41st Street. A few minutes later they were led out of the basement and into the backyard of a nearby abandoned building. At the trial Williams testified that defendant Taylor then put a gun to Baldwin's head and threatened to kill him. When Williams begged Taylor not to kill Baldwin, defendant Craig pointed a gun at Williams and threatened the same to him. Baldwin and Williams were then forced to lie face down on the ground. Their handcuffs were taken from them and placed on their wrists behind them. They were gagged and money was taken from their pockets. They were told not to move and that a member of the group would stay and watch them. They were then abandoned in the yard and remained there for approximately two hours until they were found by a Chicago police officer.
Meanwhile, at approximately 9 p.m., three plainclothes Chicago police officers were driving an unmarked car eastbound on Ellis Avenue, approaching 4068 S. Ellis, when they observed defendant Hopkins leaving the boarded-up liquor and drug store carrying a box containing a number of cartons of Kool cigarettes. When the officers got out of their car, Hopkins dropped the box and began to run. He was quickly apprehended by one of the officers. Investigating further, the officers entered the store and found a number of men with various items of merchandise in their hands. Among those arrested inside the store were defendants Taylor, Craig, Brown, and Lewis.
Following their arrests, defendants were taken to the 21st District police station and placed in a lineup. All five defendants were identified by Baldwin, while Williams identified only Craig and Taylor.
At their trial all of the defendants were represented by a single privately retained attorney. Defendants Brown, Taylor, and Lewis admitted being in the store at the time of the arrest, but denied any participation in the armed robberies. Defendant Hopkins testified that he found the box with the cigarettes lying in the street, and merely picked it up. He, too, denied participation in the armed robberies. Four of the defendants, Brown, Lewis, Hopkins, and Taylor, presented alibi defenses for the period of time in which the armed robberies occurred. No defense was presented by or on behalf of defendant Craig, who absented himself from the courtroom during most of the trial.
The foremost issue is defendants' contention that their continued joint representation at the trial by their privately retained attorney was a conflict of interest and denied them their constitutional right to effective assistance of counsel. The alleged conflict arose after defendants' attorney became aware prior to trial that defendant Taylor had made an oral admission that he (Taylor) had been caught inside the store.
• 1 As we said in People v. Husar (1st Dist. 1974), 22 Ill. App.3d 758, 762, 318 N.E.2d 24, "[t]he 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.)"
• 2 Effective assistance of counsel is assistance untrammelled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If counsel must represent conflicting interests, or is ineffective because of the burdens of representing more than one defendant, the injured defendant has been denied his constitutional right to effective counsel. The determination of the issue of whether representation of multiple defendants by a single counsel deprived a defendant of effective assistance of counsel because of conflicts of interest does not depend upon nice calculations of the court with respect thereto. (Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) Where there is no showing that a single attorney's representation of multiple defendants caused prejudice to an individual defendant, or that a different result might have obtained had separate counsel been appointed, a court of review will not disturb a judgment on the basis of conjectural or speculative conflicts of interest of co-defendants raised for the first time on appeal. (People v. McCasle (1966), 35 Ill.2d 552, 556, 221 N.E.2d 227; People v. Bass (1st Dist. 1968), 101 Ill. App.2d 259, 262, 243 N.E.2d 305.) Co-defendants should have a right to separate counsel if their positions are antagonistic, but such antagonism is not necessarily present, merely by virtue of such representation, in every instance where the same attorney represents two or more co-defendants. People v. Durley (1972), 53 Ill.2d 156, 160, 290 N.E.2d 244.
• 3 Our review of the record leads us to conclude that there is no real conflict of interest. Therefore, defendants were not denied effective assistance of counsel. (People v. Normant (1st Dist. 1975), 25 Ill. App.3d 536, 540, 323 N.E.2d 553.) The trial record reveals that each of the defendants (except Craig) presented an alibi defense. The alibis were in no way conflicting, and, in fact, complimented and corroborated those of the others. Defendant Hopkins testified that his car broke down near the scene of the burglary, and that he worked on it for awhile before driving his girl friend to visit a friend nearby. He further testified that while working on the car, defendant Brown walked by, and that they had a brief conversation. After he drove his girl friend to her friend's house, he noticed people carrying merchandise out of the burned out store at 4068 S.E.llis. He walked back toward the store, noticed a box in the street, and picked it up. He was arrested by the police shortly thereafter. Defendant Brown testified that he spent most of the day watching television with his cousin, Tony Gardner. Shortly before 9 p.m., he left Gardner's home and drove to the vicinity of 4068 S. Ellis. He saw Hopkins working on the car and spoke with him briefly. Seeing a commotion in the burned out store, he walked over to it, stepped inside, and was arrested by the police moments later. Defendants Lewis and Taylor testified that they were in a nearby playground drinking wine at the time of the armed robberies. Shortly before 9 p.m., they left the playground together and seeing the commotion at 4068 S. Ellis, walked that way. They also claimed to have stepped into the store only moments before the police arrived.
In the case at bar, the alibis of the various defendants were independent and corroborative of the others'. None of the alibis inculpated another defendant in the commission of a crime. There is nothing in the record to indicate any conflict per se among the defenses of the parties. People v. Somerville (1969), 42 Ill.2d 1, 8-11, 245 N.E.2d 461.
• 4 Defendants' assertion that the fact of their attorney's awareness prior to trial of Taylor's oral admission constituted a conflict of interest fails to do so because the substance of that admission, that Taylor was caught inside the store, was admitted by Taylor in his testimony. Defendants contend that had they been represented by separate counsel, their defenses may have been different because of the alleged statement by Taylor. We note that the record does not reflect any efforts by defendants at trial to raise the issue of conflict of interest. We will not disturb a judgment on the basis of such conjectural or speculative conflicts of interest of co-defendants envisioned for the first time on appeal. (People v. McCasle (1966), 35 Ill.2d 552, 556, 221 N.E.2d 227.) Nor was it a conflict of interest for defendant Taylor to testify that co-defendant Lewis entered the store with him, because Lewis himself confirmed that fact in his testimony. People v. St. Pierre (1st Dist. 1975), 25 Ill. App.3d 644, 651, 324 N.E.2d 226.
There having been no conflict of interest, Glasser v. United States, People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441, and People v. Ware (1968), 39 Ill.2d 66, 233 N.E.2d 421, relied on by defendants, have no applicability. In Glasser, the conflict of interest was established prior to the appointment of Glasser's attorney to represent a co-defendant. Glasser, an attorney himself, objected to the appointment, and his attorney stated on the record that admissions of the co-defendant would be admitted into evidence which would tend to inculpate Glasser in the commission of a crime. In Stoval, the conflict of interest consisted of the fact that the defendant's attorney was a member of a law firm which also represented ...