APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH JUEN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 16, 1977.
Defendant, James Meng, brings this appeal from the judgment entered by the circuit court of St. Clair County on a jury verdict finding him and a co-defendant, Bill Aitken, guilty of the burglary of the residence of Eleanor Smoot.
Defendant and Aitken had been jointly indicted and tried for the offense and were each represented at trial by a separate assistant public defender. Prior to the selection of the jury, the assistant public defender, John Maher, who was representing Aitken, moved to withdraw as counsel on the grounds that the assistant public defender, Roger Hay, who was representing defendant, was attempting to negotiate with the prosecution and had offered to have defendant testify on behalf of the State. The prosecution informed the trial court that the offer had been refused and, on this basis, the court denied the motion to withdraw. Maher then moved for a severance asserting that the "stories" of the defendants conflicted and that Aitken intended to present a defense of intoxication. Hay joined in the motion, on behalf of defendant, and informed the court of a police report showing a statement by Aitken to the effect that defendant had, alone, committed the burglary but that if defendant were to testify at trial, "he puts most of the blame on Mr. Aitken." The trial court denied the motion. Neither defendant nor Aitken were present during the foregoing conference.
At trial the evidence showed that defendant and Aitken were friends of James Smoot, who had resided with his mother but had died in a hospital the day before the burglary. A neighbor testified that on the night in question she saw two boys walking down the Smoot driveway toward the residence and she called the police. Police officer Chambers testified that in response to a radio dispatch he went to the Smoot residence. He walked up the driveway toward the rear of the house and saw two individuals standing on the rear porch near a partially open door. the individuals were facing each other and one of them appeared to be holding the door open. Chambers saw a "white object" go between the two individuals but he could not tell who had thrown it. It was later identified as a jewelry box and its contents were described as essentially worthless trinket jewelry. Keys, originally found but left in defendant's pocket and again later found in a patrol car, were identified as fitting Smoot's door locks. After the arrest of defendant, Officer Chambers investigated the house and found that a chest of drawers in a bedroom had been ransacked.
Aitken testified in his own behalf that on the day in question he had consumed an extensive quantity of alcohol and that he was at a friend's house when defendant approached him and invited him to come along and collect a debt that James Smoot owed. Aitken stated that he had not known of Smoot's death. He further testified that he borrowed a van and he drove defendant to the scene and stopped to let defendant out in front of Smoot's home and that he then proceeded to park the vehicle about three houses away. Aitken stated that when he next saw defendant, the police arrived, and, at that time, he was walking toward the house and he could see defendant standing on the back porch, knocking on the door. He denied seeing or throwing a white box, denied going to the house with the intent of committing a burglary and he denied having committed the burglary.
Defendant did not testify.
In rebuttal, police officer Mayhan testified about Aitken's statement to the police. On cross-examination of Mayhan by Aitken's attorney, an attempt was made to elicit the full statement. In chambers, the attorney for defendant objected to the portion of the statement in which, after Aitken stated that he approached the rear of the house, he stated: "At this time, Meng came running out of the back door of Jim Smoot's house and said the cops are here." Counsel for Aitken argued that without the sentence, the statement would make it appear that the burglary was a joint criminal venture. The objection, however, was sustained by the court and the statement was read to the jury without the objected to sentence.
Of the issues raised by defendant for review, we find the dispositive question to be whether defendant was denied the effective assistance of counsel because of a potential conflict of interest on the part of defendant's court-appointed counsel. Defendant contends that such a conflict arose due to the "antagonism" between his defense and that of Aitken *fn1.
• 1 Initially we note that it was the public defender who was appointed to represent both defendant and Aitken. In People v. Benford, 31 Ill. App.3d 892, 895, 335 N.E.2d 106, 109, the court stated:
"When the public defender of a county is appointed for an indigent in a criminal case, it is the office of the defender that is appointed. [Citation.] In legal contemplation, then, it is the public defender who is in court after he is appointed, although he may appear there through appointed assistants."
In the instant case, defendant and Aitken were each represented at trial by a separate assistant public defender, however, as such, the attorneys were not independent of one another.
• 2 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.) In Illinois, where a defense counsel's past or present commitments to others involves interests which potentially conflict with those of the defendant, a per se rule of reversal has been applied without the necessity of a showing of any actual prejudice resulting thereby. People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441; People v. Kester, 66 Ill.2d 162, 361 N.E.2d 569; People v. Coslet, 67 Ill.2d 127, 364 N.E.2d 67.
In Stoval the defendant was convicted of burglary and theft where the victim of the crime was a client of the court-appointed defense counsel's law firm. The court found that the relationship between the attorney and victim might make the attorney unwilling to effectively represent the defendant. In reversing the judgment and remanding for a new trial, the court 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 his 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 ...