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People v. Gardner

OPINION FILED APRIL 4, 1977.

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

v.

GERALD W. GARDNER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Williamson County; the Hon. WILLIAM A. LEWIS, Judge, presiding.

MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

Following a jury trial the defendant, Gerald Gardner, was found guilty of burglary, and was sentenced to a term of imprisonment for not less than six years and eight months nor more than 20 years.

The defendant was charged by indictment with the burglary of the Heights Food Shop in Herrin, Illinois. The owners, husband and wife, of the burglarized store testified that they locked the store on the evening in question about 6 p.m. At about 3:30 a.m. the next morning a Herrin police officer awakened the husband and accompanied him to the store. The back door of the store was open; there were potatoes on the floor and everything from the meat containers had been taken out and piled on the floor. The store's stock of cigarettes had been placed in boxes and the glass on the front door had been broken.

Herrin Police Officers Jack Engram and Rick Lynn stated that while on routine patrol at 2 a.m. on the night in question, they noticed the broken glass on the front window of the store, and they also saw two individuals inside the store. Both officers testified they witnessed the two men exit the store by the back porch. They also stated that one of the men leaving the store had one leg and was on crutches. Officer Engram testified that he saw the man on crutches when he came out of the store and also when the two men stopped by a fence. There was a four-foot-high chain link fence at the rear of the yard behind the store. When the individual on crutches ran away from the fence he was apprehended by Officer Lynn, and Lynn identified him in court as the man he saw running from the store and apprehended.

The defendant testified that he was at a party when he started home about 2 a.m. on the night in question with Bob Phelps. Because of the difficulty in starting the car, Phelps had to repair the car twice. After the car stalled the last time, defendant was going towards a house with some lights on to call his mother, when he saw the police car with flashing lights. Due to his past criminal record, defendant stated that he panicked and ran. He denied being in the burglarized store. Phelps testified that he had to repair defendant's car twice early in the morning and defendant finally drove off alone.

After the jury returned a verdict of guilty, a sentencing hearing was conducted and the defendant was sentenced to six years and eight months to 20 years imprisonment.

The issues presented on appeal are: (1) that a serious conflict of interest between the defendant and appointed counsel against whom the defendant had filed a complaint with the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois requires reversal of the defendant's conviction; (2) the trial court erred by limiting direct examination as to the defendant's physical condition, yet allowed the State to introduce evidence of the same; and (3) the imposition of the maximum sentence is excessive in light of the nature of the offense.

For reasons detailed below, we find none of these arguments persuasive and affirm the judgment of the lower court.

At the preliminary examination on March 11, 1975, the court found the defendant indigent and appointed the public defender, Mr. Hubler, and his assistant, Mr. Gamber, to represent him. Mr. Hubler represented the defendant during the preliminary hearing on March 14, 1975, while Mr. Gamber on May 7, 1975, was present during arraignment. The case was set for jury trial in July, reset for September, and a continuance was then granted when requested by a private attorney representing the defendant. Subsequent to the private attorney's withdrawal, the cause was reset for trial in October and Mr. Hubler was reappointed. In late October the case was reset for trial on November 12, 1975. On that date, the defendant requested an attorney other than Mr. Hubler because Mr. Hubler had failed to make a court appearance on behalf of the defendant in a dramshop case which resulted in the case's dismissal with 30 days to reinstate. For this reason, the defendant's mother filed the complaint with the Attorney Registration and Disciplinary Commission.

Mr. Hubler, noting the personal conflict existing because of this incident between himself and the defendant, asked that he "be let out of this damn case" so as not to be made the "No. 1 whipping boy" if the case was appealed. The State objected to the defendant obtaining other counsel pointing out that there already had been four continuances and there might be "a 120-day rule problem." Giving the defendant two alternatives, the court allowed the defendant to choose between going to trial immediately with Mr. Hubler or going to trial with Mr. Hubler's assistant, Mr. Gamber, the next day. The defendant indicated his willingness to accept Mr. Gamber providing that Mr. Gamber institute his own investigation and that the court grant more than a one-day continuance. Since the judge was unwilling to grant a continuance any longer than one day, the defendant stated "he would go to trial with Mr. Hubler and appeal."

• 1 The right to counsel guaranteed by both Federal and State constitutions includes the right to be represented by counsel of one's choice or if indigent, to have counsel appointed by the court. (U.S. Const., amends. 6, 14; Ill. Const., art. I, § 8; Ill. Rev. Stat. 1975, ch. 38, par. 113-3.) The accused has the right to discharge his attorney or to substitute attorneys at any time, providing, however, that the right is not exercised arbitrarily to thwart the prompt administration of justice. (People v. Gore, 6 Ill. App.3d 51, 57, 284 N.E.2d 333 (1972), cert. denied, 411 U.S. 907, 36 L.Ed.2d 196, 93 S.Ct. 1534, (1973).) Courts> have qualified this right when dealing with court-appointed counsel for indigents. (See Annot., 66 A.L.R.3d 966 (1975).) It is often said that the indigent defendant does not have the right to choose his court-appointed counsel. People v. Blakely, 7 Ill. App.3d 1012, 298 N.E.2d 269; People v. Moore, 5 Ill. App.3d 125, 283 N.E.2d 264.

Illinois has adopted a per se reversal rule, without regard to prejudice, whenever a sufficiently serious conflict of interest on the part of the defendant's counsel is demonstrated. (People v. Hendricks, 41 Ill. App.3d 178, 353 N.E.2d 177; People v. Cross, 30 Ill. App.3d 199, 331 N.E.2d 643.) In order to engage the per se rule the defendant must establish that a conflict existed at trial. People v. Barren, 32 Ill. App.3d 78, 81, 335 N.E.2d 779.

• 2 In the case at bar, the defendant and his counsel explained in detail the basis for their personal differences and conflicts before trial in the judge's chambers. This court need not speculate as to the nature and degree of conflict which existed for it is revealed in the record. The defendant argues that an "obvious conflict of interest between the defendant and appointed counsel" requires application of the per se rule as promulgated by People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441. The progeny of Stoval, however, have interpreted the per se rule to apply only "where counsel's conflict of interest arises from a commitment to others," and has not applied or adopted the rule where a conflict arises in another fashion. (People v. Fuller, 21 Ill. App.3d 437, 442, 315 N.E.2d 687.) The per se reversal rule does not apply to the case at bar because the alleged conflict does not arise from or involve a commitment to others. Even though the per se rule is inapplicable, this does not end our examination into the possible subliminal affects such a conflict might have on the defendant's right to be zealously represented by counsel of undivided loyalty. (People v. Kester, 33 Ill. App.3d 262, 337 N.E.2d 44.) When dealing with the rights of indigent defendants who are furnished counsel not of their own choosing, the courts> have faithfully exercised a greater leniency and a wider discretion when necessary to protect those rights. (People v. Kenzik, 9 Ill.2d 204, 212, 137 N.E.2d 270.) The courts> of review carefully survey the trial court record, watchful for conflicts which might prevent counsel from fully devoting his energies to his client.

The defendant contends that the disposition of his case is controlled by People v. Brown, 40 Ill. App.3d 562, 352 N.E.2d 15. In Brown, after the defendant's conviction, but prior to his sentencing, the defendant submitted a letter to the court accusing his attorney of subornation of perjury. The court launched a formal investigation of the charge, the results of which were unknown at the time of sentencing when the defendant was again represented by the same attorney. Upon review, the court found the conflict placed counsel in an awkward and duplicitous position. ...


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