APPEAL from the Circuit Court of St. Clair County; the Hon.
CARL H. BECKER, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Edward Spicer, was charged in the circuit court of St. Clair County with two counts of murder, one count of attempted murder and one count of armed robbery. Pursuant to a change of venue, a jury trial was had in Randolph County following which defendant was found guilty as charged. Defendant brings this appeal from the judgment entered and he raises the following issues: (1) whether the trial court erred in determining that defendant was not entitled to other appointed counsel, where the public defender represented defendant and a co-defendant, James Phillips, who had been previously convicted and sentenced on the same charges and was called as a State's witness; (2) whether it was error to admit in evidence a prior statement by Phillips in lieu of direct examination of him; (3) whether it was error to admit in evidence a tape recording of the robbery and murders, and a transcript thereof; and (4) whether it was error to admit in evidence certain photographs of defendant.
Jointly indicted with defendant were James Phillips and Earl Good. The public defender was appointed by the lower court for the three who were then each represented by separate assistant public defenders. The record shows that prior to the trial of defendant, James Phillips was tried before a jury, was found guilty as charged and was sentenced, and that in separate proceedings, Earl Good entered a plea of guilty to the two counts of murder.
The instant charges stem from the November 15, 1975, armed robbery of the Leading Food Store during which Ben Seigel and Emanuel Ukman, who were owners of the store, were killed by gun shots. During the course of the robbery, Police Officer Bruce Moore was also shot by one of the robbers but he survived.
At defendant's trial, Michael and Howard Owens testified detailing an audio surveillance system that continuously monitored and tape recorded sounds coming from within the Leading Food Store. Howard Owens stated that at 7:23 on the morning of November 15, 1975, he was informed of unusual activity in the store. He listened directly to the sounds in the store through a monitoring device and he alerted the police. The sounds of the occurrence were recorded on tape, which Owens stated, contained an accurate portrayal of that which he had heard. A chain of custody of the tape was also then established.
Vera Bolden, a teacher of oral language, who was working toward a master's degree in speech communications and who taught standard English to students with a black dialect, testified that she had compiled a transcript of the tape recording based upon listening to the tape approximately 25 times. Bolden further stated that there were four voices on the tape, two of which exhibited a black dialect. Copies of the transcript were distributed to the jury to aid in listening to the tape recording, and the tape was twice played. Thereafter the transcripts were collected and were not subsequently taken into the jury room.
Next a pathologist, Dr. Robert Sueper, testified that he had conducted autopsies on Ben Seigel and Emanuel Ukman and had determined that each had died of bullet wounds. Three bullets were identified as those taken from the body of Seigel and two bullets were identified as those taken from the body of Ukman. Of these five bullets, further evidence showed that two of them had been fired from a .38-caliber revolver which had been found in the home of James Phillips, the remainder of the bullets had been fired from another .38-caliber weapon.
Willie Staples testified that he lived across from the Leading Food Store and that around 7 a.m. on November 15, 1975, he noticed a man in a vacant house next to the store. He described the man as tall and as wearing a black leather coat and hat. Staples was unable to identify the face of the man he saw and he stated that there may have been two people in the vacant house. Staples called the police and relayed his suspicions. After approximately 20 to 25 minutes had passed, Seigel and Ukman arrived at the store and Staples saw the man in the vacant house follow them. Staples first attempted to call the police, and then he changed his mind and tried to call the store, which he did after obtaining the number from a telephone operator. The phone in the store rang four to six times before it was apparently knocked off the hook. Staples stated that on the phone he heard "screams" as Seigle and Ukman were "struggling for their life." Subsequently, Staples saw Officer Moore apparently circling the exterior of the store on foot. Staples heard some shots, after which Moore shouted to him to call the police because he was shot.
Police Officer Moore testified that he had been dispatched to the Leading Food Store on the morning of the incident. After arriving at the scene, he observed someone whom he sought to pursue but lost. While reconnoitering the area, he saw two men inside the store wearing dark clothing. Moore had left his squad car near the north corner of the store and was now at the south corner, so he began running toward his car. At this point, a side door opened and an individual stepped out and fired one shot striking Moore in the neck. Moore was around 10 feet away from the individual. At trial he positively identified defendant as the one who shot him. He stated that he then returned three shots at defendant and subsequently he called for assistance.
Thomas McAleenan testified that at the time of the incident he drove past the scene on his way to work. He slowed his vehicle when he saw a policeman bearing a weapon. As he drove down the street, he heard a shot fired. He stopped and saw two men wearing black leather jackets exit a side door of the store. McAleenan saw a pistol in the hands of one of the men. The two men ran to a parked station wagon containing a third man who was sitting behind the wheel and the three then drove off. McAleenan then drove to a police station where he reported the license plate number of the station wagon.
The station wagon was owned by Lorrine Dixon who testified at trial that she had loaned the car to James Phillips on the evening of November 14, 1975, and that he returned the car on the morning of the following day.
A search of Phillips' house produced two black leather coats, $215 in one dollar bills, a .38-caliber revolver, and a red suitcase containing personal items and a camera containing film. The film was developed and consisted of photographs of defendant and Earl Good. There was further testimony that defendant and Good had come to Phillips' house on a visit and that they had in their possession a suitcase and camera similar to those recovered in the search and that on the morning of the crime defendant, Good and Phillips had left Phillips' house together and had later returned.
James Phillips was called as a witness by the State and he identified a written statement as that which he had made to the police on the evening of November 15, 1975. Phillips testified that the statement was truthful, and then it was read to the jury. In it, Phillips stated that defendant and Good had arrived from Chicago on a visit on November 13, 1975. On the morning of the crime, according to Phillips, defendant and Good threatened harm to Phillips' two babies if he would not cooperate with them in the robbery of the food store. Phillips further stated that he drove them to the food store, he waited in the car for a half hour for them, and that when they returned, he drove them back to his house. He stated that he was given $300 as his share of the proceeds. Further, he stated that defendant and Good disappeared from his home at the time the police arrived.
Also introduced into evidence by the State was a statement by defendant wherein he acknowledged that he and Good had visited the home of Phillips around the time of the incident and he admitted that he had participated in the planning of the robbery. However, he denied that he had taken part in the robbery itself but stated that Good, Phillips and a "third party" had committed the crime.
On appeal defendant first contends that there existed a per se conflict of interest in the representation by the public defender of defendant because the public defender had also represented Phillips. Moreover, he argues that the trial court erred in denying his trial attorney's motion to withdraw because of this conflict. The State responds by arguing that the representation of defendant and Phillips by two separate assistant public defenders is not the equivalent of representation by a single attorney, and that the record shows that defendant received competent and vigorous representation and the undivided loyalty of his individual counsel.
James Phillips was represented at his trial by Assistant Public Defender Milton Wharton. Wharton also represented defendant at an arraignment, however, at trial defendant was represented by Assistant Public Defender Roger Hay. At a pretrial motion for a continuance by defendant, Hay stated to the court that he had been assigned to the case because of a conflict between Phillips and defendant in that Phillips claimed that he had been coerced to proceed with the crime. Nothing more was said of the conflict until the day of trial at which time Hay moved to withdraw as counsel and for appointment of counsel other than the public defender because the office of the public defender had previously represented Phillips, and Phillips was to be called as a witness by the State in the upcoming trial. Defendant himself then stated: "There's no doubt, you know, that I could get proper representation [by Hay] but still due to the fact that Mr. Phillips had been tried previously already, he is constantly saying that he was forced under threat of his life being taken * * * I just can't see myself going to trial with a Public Defender because of the fact they might be leaning toward him * * * in his favor * * *." The State objected to the motion and argued that it was untimely, having been raised just prior to trial after there had been ample time to previously make the motion, and that there was no conflict since defendant and Phillips were represented by separate attorneys. The court denied the motion and trial began. During the course of the State's case-in-chief, Phillips was called as a witness but he refused to take the oath until he conferred with his attorney. At a subsequent in-chambers conference Wharton appeared on behalf of Phillips and argued that direct examination and cross-examination could elicit damaging admissions by Phillips that could be used at a future time if his convictions were reversed on appeal and the case retried. Additionally, Phillips expressed fear for his personal safety should he give direct testimony against defendant. In response, the State promised Phillips immunity from the use of any testimony he might give at ...