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People v. Pendleton

OPINION FILED AUGUST 12, 1977.

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

v.

MAURICE PENDLETON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. BENJAMIN MACKOFF, Judge, presiding.

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

After a jury trial, defendant was found guilty of the murder of Deborah Goodlow and sentenced to 100 to 199 years imprisonment. On appeal, he presents the following issues for review: (1) whether defense counsel's position as a special assistant Attorney General constituted a conflict of interest which denied him the effective assistance of counsel; and (2) whether references to another crime denied him a fair trial.

Defendant had initially been charged with the murders of Dewey Crockett and Deborah Goodlow; but, in a prior trial, was convicted only of the Goodlow murder — which conviction was reversed on appeal and the cause remanded for a new trial. (People v. Pendleton (1974), 24 Ill. App.3d 385, 321 N.E.2d 433.) Defendant's second trial resulted in a mistrial being declared during the jury's deliberation, and it is the third trial — in December 1975 (referred to as the trial) which is the subject of this appeal.

On September 24, 1975, defendant's attorney, who had been appointed to represent him a month before, petitioned the court to withdraw, alleging that certain of his professional obligations precluded an adequate opportunity to prepare defendant's case. Included in the list of professional duties were two cases in which he had been appointed and was currently acting as a special assistant Attorney General. Defendant had previously requested the withdrawal of two former attorneys and, because he expressed regret at losing the services of another, the trial court questioned defendant and his attorney to ascertain whether they were personally satisfied with each other. Finding that they were, the court asked the attorney to reconsider whether his schedule would allow his continuation in the matter and, after an off-the-record discussion with defendant, his attorney withdrew the petition.

On December 8, 1975, prior to the commencement of jury selection, defendant's attorney informed the court and defendant that although he had six years of criminal law experience, including at least 60 bench trials, he had never tried a criminal case before a jury. At defendant's request, an attorney from the Chicago Bar Association Defense of Indigent Prisoners Committee was appointed to act as co-counsel to provide advice concerning the practices and procedures appropriate to jury trials. While defendant's original attorney principally conducted the defense during trial, his co-counsel was at all times available for consultation and actually argued several matters before the trial court. Shortly after the State rested, however, defendant alleged that both defense attorneys had been deceiving him and, thereafter, he was permitted to defend himself with both attorneys in attendance as legal advisors. Later, for the purposes of post-trial motions, the same two attorneys were again appointed as defense counsel.

As a detailed summary of the evidence given in the first trial was reported in Pendleton and, as the testimony relevant to the issues before us is substantially the same, only those facts pertinent to this appeal will be set forth. It appears that at approximately 3 a.m. on March 31, 1970, Dewey Crockett and a man identified as defendant entered the Madison Park Hotel to visit Deborah Goodlow, a resident of the hotel. The two men were observed entering the elevator after receiving Deborah's permission to come to her apartment. Thirty to forty-five minutes later, Deborah, in a hysterical condition, entered the lobby from the stairwell and, begging for help, screamed that someone had been shot in her apartment. A hotel employee suggested that she hide behind the front desk, but she instead ran into a hallway in the western portion of the lobby and went out of the building through an exit there to an adjacent alley which ran north to Madison Park Street and south to Hyde Park Boulevard. Meanwhile, defendant exited the elevator and headed for the lobby's entrance onto Hyde Park. As he was opening the door, knocking could be heard coming from the west hallway, and defendant then changed direction and walked toward that hallway — from which he left through the same door Deborah had used.

From an apartment with a northern exposure and located half a block west of the hotel, a witness heard Deborah screaming and observed her running down Madison Park in a westerly direction with a man he identified as defendant pursuing and eventually overtaking her. When they were within five feet of each other, she stopped, turned, and raised her hands in the air. Whereupon, defendant first shot her in the upper torso and, as she fell to her knees, shot her again in the face at point blank range.

At trial, defendant contested his identification in that the witnesses did not have adequate opportunities for observation under favorable conditions and because some of them gave vague and uncertain testimony.

OPINION

Defendant (represented on appeal by the State Appellate Defender) first contends that he was denied the effective assistance of counsel. He points to no specific conduct during the course of trial which would demonstrate the inadequacy of counsel, but he asserts that his attorney's commitment to the attorney general's office, whose interests conflicted with his, constituted a per se denial of the effective assistance of counsel. Initially, the State argues that the issue was not preserved for appeal. We disagree.

• 1, 2 As a general rule, the failure to specify alleged errors in a written motion for a new trial or during argument on that motion waives these issues, and they cannot be urged as grounds for reversal. (People v. Rowe (1977), 45 Ill. App.3d 1040, 360 N.E.2d 436; People v. Witherspoon (1975), 33 Ill. App.3d 12, 337 N.E.2d 454; People v. Spencer (1972), 7 Ill. App.3d 1017, 288 N.E.2d 612.) While an attorney is ordinarily not expected to include his own inadequacy as a ground for reversal (People v. Van Dyke (1969), 106 Ill. App.2d 411, 245 N.E.2d 324), the State, citing People v. Wise (1942), 379 Ill. 11, 39 N.E.2d 319, argues that the issue of the ineffective assistance of trial counsel is waived where not raised in the post-trial motion of a second attorney who did not partake in the alleged error.

Here, co-counsel was appointed six weeks after the original attorney's affiliation with the Attorney General's office was mentioned in his petition to withdraw. Moreover, because original counsel had extensive experience in bench trials, it appears that co-counsel's appointment was not because of any possible conflict resulting from counsel's association with the attorney general; but, rather, was to provide advice and assistance relating to the nuances of trying a case before a jury. Under these circumstances, we find Wise inapposite. In that case, the second attorney appeared after sentencing and, of necessity, would have had to review the proceedings — which should have disclosed the conduct complained of prior to filing the post-trial motion; but, nonetheless, he failed to raise the issue of incompetency of trial counsel. Here, however, co-counsel was present during the entire trial and, because he was only assisting in the preparation of the post-trial motion, we cannot say that he should have known of an indicated conflict as he would not necessarily have been required to make a detailed examination of the record. In any event, we have found nothing to indicate that co-counsel was aware of the possible conflict. Consequently, we will consider the issue.

Effective assistance of counsel is a fundamental right, and an accused is entitled to the undivided loyalty of counsel free of commitments to others. (Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) This right is deemed to have been denied where the interests of co-defendants represented by a single attorney are potentially inconsistent (Glasser), where a fee earned through the representation of another client will be enhanced in the event of a less than vigorous defense of the accused (People v. Meyers (1970), 46 Ill.2d 149, 263 N.E.2d 81), where the future business of another client may not be forthcoming should a successful defense of the accused result (People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441), and where the defense attorney is the recipient of the special assignment of cases by a State office (the Illinois Attorney General) which, under certain circumstances, is charged with the duty of prosecuting criminal cases (People v. Cross (1975), 30 Ill. App.3d 199, 331 N.E.2d 643), but not where the defense attorney has terminated his employment as a prosecutor subsequent to defendant's indictment (People v. Newberry (1973), 55 Ill.2d 74, 302 N.E.2d 34), unless there was an earlier representation of the State in that particular case (People v. Kester, (1977), 66 Ill.2d 162, 361 N.E.2d 569). In Cross, defendant's trial counsel also served as a special assistant Attorney General for the purpose of handling inheritance tax matters, and the court held, "The attorney's representation of the defendants on the one hand and his affiliation with the Attorney General's office on the other constituted a per se conflict of interest."

• 3 Should defense counsel's commitment to others give rise to interests potentially conflicting with those of defendant, no actual prejudice need be shown. (People v. Fuller (1974), 21 Ill. App.3d 437, 315 N.E.2d 687.) The policy ...


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