APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant Ronnie Baxtrom and co-defendants Robert Lofton and Edwin Washington were charged in the circuit court of St. Clair County with the offenses of attempted murder and armed robbery. The county public defender was appointed to represent the three men. Pursuant to negotiations, the case against Washington was severed from the other two and he subsequently pleaded guilty to a reduced charge. Motions for severance by defendant and Lofton were denied and they were thereafter jointly tried before a jury. Following trial, defendant and Lofton were found guilty as charged. From the judgment entered, defendant brings this appeal.
On appeal defendant presents the following issues for review: (1) whether the office of the public defender was in conflict of interest in jointly representing defendant and Lofton; (2) whether the State's failure to produce requested information denied defendant a fair trial; (3) whether defendant was proved guilty beyond a reasonable doubt; (4) whether the prosecution made improper comments during its closing argument; and (5) whether the two concurrent sentences of 25 to 75 years' imprisonment imposed upon defendant are excessive.
While we find sufficient evidence supporting a guilty verdict, we also find merit to defendant's first two contentions, warranting a new trial in this cause.
The charges herein stem from the armed robbery of Beulah Hodges, owner of the Hodges Grocery Store, and the shooting of her son, Stanley, which took place at noon on May 17, 1976. At trial, Hodges testified that at the time of the occurrence she was behind a meat counter at one end of the store while her son was at the checkout counter at the other end of the store. She stated that Lofton came to the meat counter and ordered some frankfurters. She handed these to him and then she saw him go to the checkout counter. Hodges began to serve her next customer when she heard a shot fired. Fearful, Hodges laid down on the floor and she saw Lofton, with a gun in his hand, walking toward her from the direction of the checkout counter. At trial Hodges stated that she was positive of her identification of Lofton based on her observation of him made while serving him as a customer. She further testified that Lofton then ordered her to give him money. Following his orders, she handed him cash from the store's office and she gave her purse to him after which Lofton left. Hodges stated that later that day, she identified a photograph of Lofton from a group of photographs given her by the police. On cross-examination, Hodges stated that during the incident there were only five people in the store; herself, her son, a customer at the meat counter who she knew as Miss Pearl (Lillian Chamberlin), Robert Lofton who was dressed in blue denim, and another man who she could not identify because he was at the checkout counter with his back toward her.
Next, Stanley Hodges testified stating that he was in the store's office near the meat counter when three men entered the store. Also in the store at that time was a lady customer. Stanley walked behind the meat counter and to the checkout counter. He stated that he saw a man who he was unable to identify, at the meat counter, another man in a green jacket who was in a middle aisle, and a third man at the cash register. Stanley identified the third man as Edwin Washington. He stated that Washington paid him 26¢ for a product. Stanley, however, dropped one of the coins onto the floor. As he bent over to pick it up, Washington stepped aside, and the man in the green jacket suddenly placed a hand on Stanley's face, turned it toward him, and then shot Stanley in the face. Stanley positively identified defendant, Ronnie Baxtrom, as the man in the green jacket who shot him. He stated that he was able to observe defendant face to face at the time of the shooting. Stanley testified that on the following day, while in the hospital, he identified defendant's photograph from a group of photographs that had been shown to him by the police.
On behalf of defendant, Michael Durbin, an investigator with the office of the public defender, testified that he interviewed Stanley who told him that at the time of the shooting, he (Stanley) had been looking only at the midsection of the green jacket on the man who shot him.
Neither defendant nor Lofton testified at trial.
As previously mentioned, the lower court appointed the public defender, David Hoffman, to represent defendant, Lofton and Washington. Hoffman, in turn, assigned defendant's case to Assistant Public Defender Rick Sturgeon, he further assigned Washington's case to Assistant Public Defender Roger Hay, and he assigned Lofton's case to himself. At the pretrial hearing on the defense motions for severance, Hoffman argued that severances were necessary because of "confusion" in the identification evidence against defendant and Lofton, and because Washington had made a written statement inculpating Lofton. The prosecution informed the court that an agreement had been negotiated with Washington whereby he would testify at the upcoming trial on behalf of the State in return for a dismissal of the charges against him. (We note that Washington did not in fact subsequently testify.) The court then granted a severance as to Washington but denied it as to defendant and Lofton. Hoffman, joined by Sturgeon, then moved to withdraw as counsel for Lofton and defendant, stating: "We have my office representing all three co-defendants, one being given immunity to testify against the other two." The court, noting that neither Lofton nor defendant were present at the hearing, denied the motion to withdraw "at this time." The record is silent as to whether this motion was again raised at any time prior to or during trial. However, defense motions for severance were again raised on the day of trial. They were based on the "inconsistent defenses" of defendant and Lofton. Hoffman stated to the court that, during the upcoming trial: "I would be arguing that Mr. Washington and Mr. Baxtrom committed this offense * * * [and Sturgeon would make] a similar argument toward the client Mr. Lofton." The court denied the motions. During trial, subsequent motions for severance, on the same grounds, were also denied.
The record shows that defense counsel followed a strategy of attempting to characterize the evidence as proving that only two men, and not three, had entered the store and committed the offenses. On behalf of Lofton, Hoffman argued during closing argument that the crimes were committed only by defendant and Washington. On defendant's behalf, Sturgeon accused Lofton and Washington of being the perpetrators. Consonant with defense strategy, Hoffman objected at one point during trial, to a comment by the prosecutor that suggested the fact that Hoffman and Sturgeon worked for the same office. Hoffman stated, outside the presence of the jury:
"* * * I'm doing a balancing act in my office trying to keep the two cases separate, not interfering with Mr. Sturgeon's investigation and conducting investigation on my own. That's the only way I know of handling a case in which I can neither withdraw from one of the defendants as I have attempted, nor to sever the two defendants which I have attempted. Left with this choice, the only choice I have left, is to maintain before the jury, the appearance of separateness of the two attorneys. * * * I feel that I am defending one man, not two. That's the only way I can look at this and handle this case properly."
Following trial, in defense motions for a new trial, the question of a conflict of interest on the part of defense counsel was squarely raised. In arguing the issue, Hoffman, joined by Sturgeon, stated that he was "prohibited" from placing Lofton on the witness stand in order to accuse defendant of committing the crime. He further stated:
"[T]he reason I feel so constrained in this area and the problem I see throughout the entire trial is that Mr. Sturgeon and I work in the same office. I am, in fact, for all practical purposes his boss. I'm the Public Defender, he's an Assistant Public Defender. * * * And we get into a situation where the natural defense is to accuse each other, and then you're concerned with all types of questions as to what information I have that I would not normally have, had I not been in the same office with Mr. Sturgeon."
In its order denying a new trial, the court stated in part: "Defendants further claim they were prejudiced because their attorneys were both Public Defenders. Although there is some merit in this argument, nothing has ...