APPEAL from the Circuit Court of Franklin County; the Hon.
ALBERT W. McALLISTER, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Daniel Drysdale, was charged in the circuit court of Franklin County with the offenses of burglary and theft (over $150). Following a jury trial, he was found innocent of burglary and guilty as charged of theft. Defendant appeals the judgment entered by the trial court and he presents two questions for review: (1) whether the court erred in refusing a tendered accomplice testimony instruction; and (2) whether defendant was denied the effective assistance of counsel where the attorney had formerly represented a State's witness.
At trial the State's evidence showed that on October 25, 1975, it was discovered that glass had been removed from a window at a lumber company and that various power tools and like items were missing from a display rack. On the following day, Police Officer James Pritchard had a conversation with Carl Overton during which Pritchard asked Overton if he had any information about the break-in. Overton stated that he had no information on the matter but that he would contact Pritchard if he learned of anything. Thereafter, on the evening of October 29, 1975, while Overton was walking in front of defendant's home, defendant called to him and asked him if he would want a power drill. Defendant told Overton that he had some power tools hidden up the road. Overton testified that he pretended interest in the offer in order to be of assistance to the police. Defendant led Overton to a field where various items were hidden. These were later identified at trial as those taken from the lumber company. Eventually, the items were brought to Overton's garage in order to protect them from the weather and so that Overton could attempt to sell them for defendant. At approximately 3 a.m. defendant departed and around 4:30 a.m. Overton called Officer Pritchard. Overton testified that he waited before making the call until defendant, who lived less than a block away, would have been asleep. Subsequently, Overton showed the police the items in his garage and the field where they had been originally hidden.
Defendant presented no evidence.
Since we find the issue to be dispositive of this appeal, we first turn to defendant's second contention that reversal here is required as a result of his trial counsel's conflict of interest.
At trial defendant was represented by privately retained counsel, Paul Caldwell. During Caldwell's cross-examination of Overton it was revealed that three years previously Caldwell had been appointed to represent Overton in an involuntary commitment proceeding. Evidence was also introduced consisting of a petition for emergency hospitalization, dated January 16, 1973, which alleged that Overton was in need of mental treatment; an order, dated January 19, 1973, finding Overton in need of mental treatment and directing his immediate hospitalization; a motion by Caldwell, dated January 19, 1973, for attorney's fees in connection with his representation of Overton at the involuntary commitment proceeding; and lastly, a notice showing Overton's absolute discharge on March 22, 1974.
Defendant contends for the first time in this appeal that Caldwell's commitments stemming from his past representation of Overton and his present representation of defendant constitutes a per se conflict of interest since the general subject matter of Overton's involuntary commitment was proper evidence with which Overton could be impeached and hence Caldwell's ability to effectively cross-examine Overton was limited. The State responds, in effect, by arguing that the record does not demonstrate any actual conflict of interest nor, in any event, is any resulting prejudice shown thereby.
• 1 At issue is whether defendant was denied the effective assistance of counsel due to a per se conflict of interest. The fundamental right to the effective assistance of counsel requires that the person represented shall receive the undivided loyalty of counsel. (Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) As the court stated in Porter v. United States (5th Cir. 1962), 298 F.2d 461, 463:
"The Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitious position where his full talents as a vigorous advocate having the single aim of acquittal by all means fair and honorable are hobbled or fettered or restrained by commitments to others."
An analysis of the cases in Illinois leads us to conclude that a per se conflict of interest will be found whenever there is a showing that a defense counsel's past or present commitment to others raises the possibility of an unwillingness or inability to effectively represent a defendant and in such a situation a reversal will be warranted even without a showing of any actual prejudice resulting thereby.
In People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441, the defendant was convicted of the burglary and theft of a jewelry store. The store and its owner were clients of the law firm of the court appointed defense counsel. Moreover, the defense attorney, himself, had previously represented the store and its owner in unrelated matters. On appeal, the defendant contended that he was denied effective representation. The court in reversing the judgment stated:
"There is no showing that the attorney did not conduct the defense of the accused with diligence and resoluteness, but we believe that sound policy disfavors the representation of an accused, especially when counsel is appointed, by an attorney with possible conflict of interests. It is unfair to the accused, for who can determine whether representation was affected, at least, subliminally, by the conflict. Too, it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later charges that his representation was not completely faithful. In a case involving such a conflict there is no necessity for the defendant to show actual prejudice." 40 Ill.2d 109, 113, 239 N.E.2d 441, 444.
In Stoval the "commitment to others" primarily consisted of the law firm's representation of the store and its owner in unrelated matters. This commitment raised a potential conflict of interest since, the court felt, the attorney might hesitate to jeopardize the good graces and future legal business of his firm's client who was the victim of the crime by a vigorous defense of the defendant. Hence, even though actual prejudice was not shown, the mere possibility of an unwillingness to effectively represent the defendant was held sufficient to require the granting of a new trial. See also People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81.
In People v. Kester, 66 Ill.2d 162, 361 N.E.2d 569, the defendant's court appointed attorney had made three court appearances on behalf of the State in the same proceedings in which he later assumed the duties of defense counsel. The court, while noting that there appeared to be no continuing commitments between the attorney and the State and thus there was no concurrent representation of two clients with conflicting interests, nonetheless found that the past commitment was such as to raise a potential conflict of interest. The conflict arose from the possible unwillingness or possible "subliminal reluctance" of the attorney to attack any of the actions or decisions he might have been previously involved with on behalf of the prosecution. Moreover, the court found it neither "necessary or desirable" to inquire into the precise nature and extent of the attorney's prior personal involvement in the case for the prosecution. That there had been a prior involvement was per se a conflict of interest requiring reversal although ...