APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD JENSEN, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 6, 1978.
A jury found Freeman guilty of armed robbery, the trial court sentenced him to 8 to 16 years, and this court affirms.
I. ASSISTANCE OF COUNSEL II. VOIR DIRE III. SUPPRESSION OF I.D. IV. SENTENCING
The facts relevant to certain of the issues on appeal will be summarized within the analysis of that question. But a brief outline of the rather undeniable facts of defendant's guilt in the instant case will afford an initial overview.
Defendant Freeman and a co-defendant, Winston, were charged by information with the crime of armed robbery at an "adult" bookstore, and after counsel was appointed, a rather complete discovery between the parties took place. At the conclusion of a 4-day trial, the jury returned a guilty verdict against Freeman and an innocent verdict for Winston.
At trial, John Scott testified that he saw an unfamiliar car, a red Pontiac, in his neighborhood on the evening of January 5, 1977, and noticed two individuals running from the "adult" bookstore in military fashion (ducking down, etc.). The bookstore attendant, Terry Gilliland, testified that about 7 p.m. that evening, two people came in the back door of the bookstore, their faces covered, one with a ski mask and the other with a nylon stocking. The former had a handgun and the latter carried a shotgun. At the robbers' directions, Gilliland opened the cash register and a display case containing quarters. The robbers then directed him to get into a movie booth inside the store. During the robbery, he stood within 5 feet of one of the robbers for about 30 seconds. Approximately $440 was taken. Gilliland identified defendant Freeman as the robber with the shotgun and testified he had never identified the defendant before the date of the trial but had seen defendant in the hall the day before trial. Gilliland further testified that he had been shown pictures of the two defendants by the prosecutor the day before trial and that he had been shown no other pictures at the same time. It was after viewing the pictures that he saw the defendant.
Officer Lockard, later on the day of the robbery, spotted the Pontiac in question parked in a trailer park. He followed some footprints from the car to a shed (there were some three or four inches of fresh snow on the ground) where he discovered a toy pistol and the shotgun wrapped in a green raincoat.
Officer Krueger described a conversation with Freeman (after Miranda warnings were given) where defendant admitted driving the red Pontiac behind the store, that he was wearing a green coat, gloves and nylon stockings and carrying a shotgun (over-and-under barrel configuration). Defendant also admitted to Officer Krueger that he had ordered the manager into a movie booth and after leaving the store, broke the gun "down." Defendant further admitted to Krueger that he parked the car in the trailer park and went into the trailer of co-defendant Winston's wife.
Freeman was found guilty. Winston was not.
WAS DEFENDANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL?
This issue is grounded on a conflict of interest proposition. Defense arguments revolve around the fact that even though defendant Freeman and defendant Winston were represented by different counsel, since both of the attorneys were from the public defender's office, both defendants were being represented by "the office" rather than individual attorneys. At trial, a motion in limine was granted so that the jury was kept from knowing that defense counsel for both defendants were from the public defender's office. During the course of the trial, defense counsel for both defendants were free in assisting each other on arguments relative to motions of the other counsel. (An example would be that Winston's defense counsel aided in setting forth reasons to support Freeman's motion to suppress the in-court identification. Likewise, Freeman's counsel helped put forward reasons why a certain piece of evidence harmful to defendant Winston should be inadmissible.) It is really undisputed that the joinder of both defendants in this case could only help Freeman's chances of keeping his confession away from the jury.
Defense counsel tries to argue that the trial judge should have realized the possibility of a conflict in this case and have ordered the appointment of different counsel (and not necessarily a severance), or in the alternative, that actual prejudice was shown in the attorneys' handling of the case. During final argument, Winston's counsel suggested that defendant Freeman could have picked up one of the "guns" used in the robbery (a toy gun from Winston's son's playroom). This is it is argued actual prejudice. In addition, counsel on appeal points to another remark, this time made by this defendant's (Freeman's) trial counsel at the start of closing argument. The statement which draws so much attention in this case was:
"One word about Mr. Winston, who is not my client, before I start. I would submit to you that the evidence in this particular case is very much lacking as to this particular individual and a verdict of guilty as to Mr. Winston would appear to be a travesty of justice and I will ...