APPEAL from the Circuit Court of Greene County; the Hon. L.
KEITH HUBBARD, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Greene County, defendant Charles King was found guilty of burglary, unlawful use of weapons and not having a firearm owner's identification card. The court imposed sentences of imprisonment of 3 to 9 years for burglary and 364 days for each of the other offenses with each to run concurrently with the others. Defendant appeals his convictions and sentences. We affirm the burglary conviction but reduce the sentence to 1 to 3 years imprisonment. We reverse the unlawful use of weapons conviction and sentence and affirm the conviction and sentence for not having a firearm owner's identification card.
A substantial number of claims of error are cited. We will discuss most of them in connection with the charges to which they are applicable.
One claim, however, is applicable to all charges. Upon defendant's request for appointment of counsel, the court appointed Peter Drummond. Before trial, that counsel called to the court's attention that he worked for a lawyer who was an assistant attorney general for the State assigned solely to inheritance tax matters. He also reminded the court of the ruling of this court in People v. Cross (1975), 30 Ill. App.3d 199, 331 N.E.2d 643, that a per se conflict of interest, requiring no proof of prejudice, occurs when a lawyer who is an assistant attorney general, regardless of his status or assignment, takes on the representation of a person charged with a State criminal offense.
In the presence of both counsel and the defendant, the court informed the defendant of his attorney's relationship to his employer and the employer's status as a special assistant attorney general. After some discussion, the court indicated that it would discharge defense counsel and make a new appointment. Later and after defendant had complained that he wanted Mr. Drummond as his attorney and stated that he thought he would be prejudiced by not being allowed to keep him, the court decided to permit defendant to file a written waiver of the conflict of interest and to allow Mr. Drummond to remain as defendant's attorney.
The trial judge had a difficult decision to make. In People v. Grigsby (1977), 47 Ill. App.3d 812, 365 N.E.2d 481, it was recognized that a disqualification of one member of a law firm disqualified all of the other members. In Cross, we indicated that the conflict of interest might be waived by the client as did the supreme court in People v. Coslet (1977), 67 Ill.2d 127, 364 N.E.2d 67. In People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441, where defendant's appointed counsel's law firm represented the victims of the burglary for which defendant was charged, the court stated,
"The difficulty in appropriately advising an accused of this right almost directs that counsel, especially one appointed, be free from any such conflict." (40 Ill.2d 109, 114, 239 N.E.2d 441, 444.)
On the other hand, in People v. Friedrich (1960), 20 Ill.2d 240, 169 N.E.2d 752, the trial court's refusal to allow the attorney of defendant's choice to represent defendant because of a conflict of interest was held to be reversible error. The trial judge's dilemma here was increased because, on the one hand, Mr. Drummond was court-appointed counsel but on the other hand defendant had made a strong, apparently spontaneous demand that Drummond be permitted to continue.
In Cross, we indicated that the conflict arose because the Attorney General assists in prosecutions in certain cases and represents the prosecution in cases before the supreme court. In explaining the conflict of interest to the defendant in the instant case, nothing was said about those reasons for the conflict. Rather, the explanation centered upon the fact that Mr. Drummond's employer who was a special assistant attorney general would ultimately share in Mr. Drummond's fee to be paid by the county. The proper procedure would have been for the explanation given to the defendant to have included a statement of the functions of the Attorney General in criminal cases.
In Stoval, in explaining the difficulty of a proper waiver being obtained, the court analogized the situation to the waiver of counsel and quoted from Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 1023, part of which quote stated, "`The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" 40 Ill.2d 109, 114, 239 N.E.2d 441, 444.
1 Various cases have been cited to us ruling upon the validity of attempted waiver by an accused of his counsel's conflict of interest. In no case except Friederich has the accused's desire to retain existing counsel been shown to be as strong as here. Although he had only a 10th grade education, we believe that he understood that Mr. Drummond had a commitment, through his law firm, that in a very indirect way could impair his devotion to defendant's interests but that he, nevertheless, very much wanted Mr. Drummond's skillful and energetic service to continue. Under all the facts and circumstances, we conclude that defendant knowingly and understandingly waived that conflict of interest.
Defendant argues that the State failed to prove that he did not possess a valid firearm owner's identification card. There is no dispute that the evidence was sufficient to prove that defendant was required to have such a card. The proof that defendant did not have the card came from the testimony of a section supervisor of the State agency required by statute to keep the records of the issuance of the identification cards. This witness stated that he had checked the agency's records and found that defendant had no card on August 5, 1976, the alleged date of the offense. The only objection made to this testimony was that the best evidence of defendant's possession of such a card would have been the testimony of the arresting officer that defendant did not possess a card when arrested. On cross-examination, the witness revealed that he had checked the records and found that on August 5, 1976, 38 persons bearing the name Charles King had cards. He then checked the birth dates listed upon the records as the birth dates of the card holders with the birth date told him by the state's attorney to be that of defendant and found that none of the cards had been issued to a person having that birth date. Defendant did not move to strike this testimony.
2 The defendant maintains that the proof is insufficient to show that defendant was not one of the Charles Kings listed in the agency records. He draws analogy to cases holding that the fact that a criminal defendant bears the same name as a person listed in a document is not sufficient proof to show that the defendant is that person. Here, there was the further factor that the record of birth dates recorded for the Charles Kings listed in the records did not correspond to that which the witness had learned by hearsay to belong to the defendant. Had objection been made to the evidence based upon the hearsay statement of the state's attorney, the evidence should have been stricken. Because no objection was made, the evidence is before the court for whatever probative value it may have (People v. Akis (1976), 63 Ill.2d 296, 347 N.E.2d 733). Here the probative value of the hearsay was sufficient for the jury to have determined that defendant was not one of the Charles Kings to whom an identification card had been issued.
The unlawful use of weapons conviction arose from a count which alleged that the defendant "knowingly carried and possessed with intent to use unlawfully against another, a .22 caliber rifle Winchester automatic, a dangerous weapon." A defense motion to dismiss the count was denied. Defendant maintained ...