APPEAL from the Circuit Court of Clinton County; the Hon.
ARTHUR G. HENKEN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant Bill Henry was found guilty at a jury trial of burglary and criminal damage to property and was sentenced to a term of 4 to 12 years for burglary and one day in the county jail for criminal damage to property. He contends that he was denied effective assistance of counsel by virtue of his attorney's conflict of interest.
On March 24, 1976, Bill Henry, Michael Miller, Robert Miller, and Forrest Wilbur were jointly charged with burglary. In addition, Michael Miller, Robert Miller and Bill Henry were charged with criminal damage to property. Two other individuals, Judy Elsworth and Charles Burger, were also charged in connection with the same incident. In a statement made on March 23, 1976, while in the custody of the Clinton County Sheriff, Michael Miller confessed to the burglary and criminal destruction of property charges and implicated Bill Henry in both offenses. On April 26, 1976, a conflict of interest hearing was held at which Michael Dunston, an assistant public defender for the Fourth Judicial Circuit Public Defender Project, was appointed to represent Bill Henry, Forrest Wilbur and Judy Elsworth. Dennis Huber, chief public defender for the Fourth Circuit Defender Project was appointed to represent Michael Miller and Robert Miller. Huber was appointed to represent two of the co-defendants because of a conflict of interest which would have arisen had Dunston represented all defendants. This arrangement was explained by the court and approved by defendant Henry during the following exchange:
"THE COURT: All right. Now Mr. Huber would you and Mr. Dunston want to ask each one of these individuals as to the conflict and their waiving of any conflict at this time and so we can get it on the record?
MR. DUNSTON: I have spoken to each of the defendants, Your Honor, individually and on the basis of those interviews I did determine that there were conflicts with my representing everyone involved. I have spoken to Mr. Henry, to Judy Elsworth and to Forrest Wilbur specifically about representing them while other attorneys represent the other persons involved in the case. From those discussions I have determined that there appears to be no conflict at this time between Mr. Henry, Miss Elsworth and Mr. Wilbur and all have assented to my continuing to represent them. I have also spoken to Robert and Michael Miller, explained to them, explained to Michael who in turn told Robert that there was a conflict in my representation of them and both have assented to representation by Mr. Huber. It's my understanding that Mr. Becker has in turn discussed the matter with Mr. Burger and that he has also agreed to waive any possible conflict of interests concerning the public defender's office.
THE COURT: All right. Thank you. Well, then Bill Henry and Judy Elsworth and Forrest Wilbur I now ask you if you are willing to be represented by Mr. Michael Dunston.
THE COURT: And are you waiving any conflict of interests that might exist between the public defender's setup? Are you willing to proceed with his representation?
MISS ELSWORTH: (At which time the defendant nodded in the affirmative.)
MR. HENRY: (At which time the defendant nodded in the affirmative.)"
Michael Miller pleaded guilty to the burglary charge on July 19, 1976, and was sentenced to a term of imprisonment. Miller was then ordered to testify at defendant Henry's trial on January 13, 1977. He admitted committing burglary and testified that Bill Henry had participated in the offense. Miller also stated that on the morning of July 19, 1976, the State's Attorney had promised to recommend his parole if he "told the truth" at the trial. Miller's testimony was the only evidence implicating Henry in either offense and was based on his statement to the police on March 23, 1976, which he made after three months in custody and while burglary and damage to ...