APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Howard Grigsby was indicted for aggravated battery and attempt murder. The indictment named James Mitchell as the victim. A person identifying himself as James Mitchell appeared before the grand jury which returned the indictment, and testified that defendant had shot him.
The defendant was represented by the law firm of Ackerman, Durkin & Egan; the preparation of the case and the pretrial court appearances were the responsibility of Mr. Egan. Mr. Ackerman, another member of the firm, had minimal responsibility for this case until the day set for trial, when, because Mr. Egan was occupied with another trial, Mr. Ackerman appeared on behalf of the defendant.
During the proceedings on the day this case was called for trial, it became apparent that the victim of the shooting was Jewell Mitchell ("Jewell") and not James Mitchell, and that Jewell was James' brother. Jewell testified at trial that he appeared before the grand jury and was told by either a prosecutor or a law enforcement official to use the name James Mitchell while testifying before the grand jury. The record contains no explanation of the motive for this deception. Before trial commenced, the prosecution amended the indictment to substitute Jewell's name for his brother's.
After discovering that Jewell was the complaining witness, Mr. Ackerman promptly advised the court of a conflict of interest arising from his representation of Jewell in another criminal matter, requested leave to withdraw as counsel for the defendant, and moved for a continuance so that the defendant could get new counsel. In advising the court of his relationship with Jewell, Mr. Ackerman was acting in conformity with ABA Standard 3.5(a) relating to the defense function, which provides that "[a]t the earliest feasible opportunity defense counsel should disclose to the defendant any interest in or connection with the case or any other matter that might be relevant to the defendant's selection of a lawyer to represent him."
The trial judge indicated that Mr. Ackerman's claim he had a conflict of interest would not be a basis for a continuance because Mr. Egan, Mr. Ackerman's partner, who had not been in contact with Jewell, could represent the defendant at the trial. The defendant himself addressed the court, stating, "I would like to get a continuance." The judge responded, "Denied not after a year you're not going to get a continuance." The judge then directed Mr. Ackerman to have Mr. Egan present at 1 p.m. that afternoon; at that time a hearing was held in the judge's chambers at which Jewell testified. The judge stated that he was "anxious to ascertain whether or not, in fact, there is a conflict of interest," and that Jewell had been sworn and he was to be asked "some questions for the sole purpose of finding out whether, in fact, there is a conflict of interest." Before proceeding with the interrogation of Jewell, the judge announced, "I'm not certain whether Mr. Grigsby did request a substitution of counsel, or not, but if he has I would not permit it at this late hour."
Defendant was not present for any part of the proceeding in chambers in which Jewell testified. Jewell's testimony was that approximately 5 weeks prior to the trial date in this case he conferred with Mr. Ackerman. The subject of their conference was the possibility of Mr. Ackerman representing him in another criminal matter. Jewell explained his case to Mr. Ackerman, who said he wanted to think about it. Approximately 2 weeks later, Jewell called Mr. Ackerman and had a second discussion with him regarding his criminal matter. Within the week prior to his testimony in this case, Jewell again spoke to Mr. Ackerman. In the last conversation Jewell told Mr. Ackerman he was in the witnesses' quarters at the county jail because he had been shot 4 years earlier, the case was about to come to trial and he was going to be a witness. Jewell testified that immediately before Mr. Ackerman raised the question of conflict of interest in this case, he expected Mr. Ackerman to be doing something on his behalf within a week or 10 days, and that Mr. Ackerman was willing to represent him. However, in view of the possible conflict of interest, Jewell did not know whether the court would permit Mr. Ackerman to represent him. Finally, Jewell testified that no arrangements had been made for the payment of a fee to Mr. Ackerman.
After Jewell finished testifying, the trial judge concluded that Jewell had no attorney-client relationship with Mr. Ackerman, and that any disclosures Jewell made to him were not privileged. Seeing no conflict of interest in Mr. Ackerman's position, the judge refused to let him withdraw and directed that the trial proceed. The trial judge did not ask the defendant his views about his continued representation by his attorneys.
The defendant was tried without a jury, and found guilty as charged. The defendant is entitled to a new trial because of errors which occurred just prior to the start of his trial.
First, the hearing in chambers to determine whether defendant's attorneys had a conflict of interest was a critical stage of the proceedings for the defendant. He needed to hear Jewell's account of his relationship with Mr. Ackerman to decide intelligently whether he wished Mr. Ackerman's firm to continue representing him. We subscribe to the procedure which United States v. Alberti (2d Cir. 1972), 470 F.2d 878, 882, cert. denied, 411 U.S. 919, 36 L.Ed.2d 311, 93 S.Ct. 1557, suggests a trial judge follow when a conflict of interest involving an attorney's representation of both a witness and the defendant develops at trial. The court there recommended:
"[T]he trial judge should see that the defendant is fully advised of the facts underlying the potential conflict and is given an opportunity to express his or her views." 470 F.2d 878, 882.
• 1, 2 The 1970 Illinois Constitution, article I, section 8, as well as the sixth amendment to the United States Constitution, guarantee an accused the right to appear and defend "in person and by counsel" and "to meet the witnesses face to face." This constitutional guarantee is not violated by hearings held outside defendant's presence in which substantial rights of the accused are not considered. (People v. Woods (1963), 27 Ill.2d 393, 395, 189 N.E.2d 293.) But, a defendant's right to be present must be protected whenever it has a reasonably substantial relation to the paramount consideration of his opportunity to defend himself. (Snyder v. Massachusetts (1934), 291 U.S. 97, 78 L.Ed. 674, 54 S.Ct. 330.)) In this case, Mr. Ackerman's possible conflict of interest which might interfere with his undivided allegiance to, and effective representation of, the defendant was clearly relevant to the adequacy of the defendant's opportunity to protect himself. Therefore, the defendant should have been present while sworn testimony on that subject was heard and considered by the court. Jewell's testimony in the judge's chambers was vital to defendant's own decision concerning his satisfaction with his counsel, an expression which the trial judge should have solicited.
• 3 The record affirmatively shows that the defendant was not present during the interrogation of Jewell in the judge's chambers. It also discloses that the defendant was in the courtroom immediately prior to the adjournment into chambers, but does not explain why he was not included in that hearing. Under these circumstances, and because the law raises every reasonable presumption against waiver of fundamental constitutional rights, the defendant did not waive his right to be present at the hearing at which Jewell testified about his negotiations with Mr. Ackerman. People v. Stoval (1968), 40 Ill.2d 109, 114, 239 N.E.2d 441.
• 4 Second, an attorney owes his client undivided allegiance, and this is particularly true of an attorney representing a person accused of a crime. Where an attorney's loyalty to a defendant in a criminal case is diluted by that attorney's obligation to others, the defendant's sixth amendment right to effective assistance of counsel is not satisfied. (United States v. Jeffers (7th Cir. 1975), 520 F.2d 1256, cert. denied, 423 U.S. 1066, 46 L.Ed.2d 656, 96 S.Ct. 805; Castillo v. Estelle (5th Cir. 1974), 504 F.2d 1243; Porter v. United States (5th Cir. 1962), 298 F.2d 461; United States v. LaVallee (E.D.N Y 1968), 282 F. Supp. 968; United States v. Myers (E.D. Pa. 1966), 253 F. Supp. 55, 57; People v. Kester (1977), 66 Ill.2d 162, 361 N.E.2d 569.) Many jurisdictions, including Illinois, apply the rule that in a criminal case, a defense attorney with a possible conflict of interest arising from his commitment to another person should not participate in the defense even though no ...