Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Adams County,
the Hon. Richard F. Scholz, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1978.
The defendants, Steven Harness and Terry Brummell, along with David Precup, were jointly indicted and tried in Adams County for armed robbery and were convicted of that offense following a jury trial. Each of these three appealed their convictions, which the appellate court affirmed, with one justice dissenting (50 Ill. App.3d 23). We allowed petitions for leave to appeal of Harness and Brummell and consolidated the cases in this court.
In the trial court both Harness and Brummell were represented by John T. Inghram IV, a public defender, by appointment of the court. The question raised in this court is whether, under the facts of this case, dual representation by counsel deprived these defendants of their constitutional right to effective assistance of counsel.
This court has adopted a per se rule holding that it is unnecessary to establish prejudice where counsel, because of his conflicting interests or potentially conflicting interests, is or may be adversely affected in his ability to defend his client. (People v. Stoval (1968), 40 Ill.2d 109; People v. Kester (1977), 66 Ill.2d 162; People v. Coslet (1977), 67 Ill.2d 127.) However, representation of multiple defendants by itself does not impinge upon the constitutional right. The Supreme Court of the United States has held that permitting one attorney to represent multiple defendants is not a per se violation of the constitutional guarantee. (Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173.) This court has so held in People v. Durley (1972), 53 Ill.2d 156. The practice of multiple representation, however, has been critized. (See Note, Criminal Co-defendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo. L.J. 369 (1969); Cole, Time For A Change: Multiple Representation Should Be Stopped, 2 Nat'l J. Crim. Def. 149 (1976).) And the potential for a conflict of interest in representing multiple defendants is recognized in the American Bar Association standards relating to the administration of criminal justice. See ABA Standards, The Defense Function sec. 3.5 (1971).
The law is now firmly established that when a timely objection to joint representation is made and the court, nonetheless, requires joint representation of parties with conflicting or antagonistic interests, it is not required that a defendant prove that he has been prejudiced. (Glasser v. United States; Holloway v. Arkansas.) The dissenting justice in the appellate court, relying on People v. Bopp (1917), 279 Ill. 184, pointed out that in that case, as in the case at bar, the attorney represented defendants with conflicting alibis. In Bopp, this court reversed defendant's conviction and remanded the cause to the trial court for a new trial. In Bopp, however, as in Glasser v. United States and Holloway v. Arkansas, the court was informed by counsel prior to trial that there was a conflict in the positions of the two defendants.
This case can be distinguished from Bopp, Glasser v. United States, and Holloway v. Arkansas in that in this case it was never suggested to the court by counsel or by either of the defendants, at any time before or during the trial, that there existed a potential antagonism in the positions of the two defendants which could impair counsel's ability to fully represent them.
In the consolidated case now before this court, the record does not contain the proceedings at which counsel was appointed to represent these two defendants. This inadequacy makes it impossible to tell whether the defendants were admonished as to any possible impairment of their right to effective assistance of counsel if they were represented by the same attorney. (See ABA Standards, The Function of the Trial Judge sec. 3.4(b) (1972).) Later, at the arraignment of defendant Brummell, at which Inghram appeared representing that defendant, the colloquy between counsel and the court indicated that attorney Lawrence Blickhan had represented Brummell at preindictment proceedings. Also, both Blickhan's and Inghram's names appear as counsel on the post-trial motion filed on behalf of both defendants. Blickhan argued the post-trial motion to the court.
At about 12:20 a.m., August 5, 1974, three armed men robbed the Nutshell tavern in Quincy, Illinois. That same morning defendants Brummell and Harness were arrested, and later that day David Precup was arrested. The three were jointly indicted. Precup was represented by one attorney and Brummell and Harness were both represented by Inghram. Precup was identified by the operator of the tavern and by a patron as one of the robbers. Nobody identified Brummell or Harness as being involved in the robbery. Each of these men had given an account of his activities during the evening to a police officer shortly after he had been arrested. It is the content of these statements which defendants now contend creates the conflicting or antagonistic positions which they argue make it impossible for one attorney to effectively represent both. Although the written statements of these two defendants were not offered into evidence, it appears that the statements had been reduced to writing, since, during the examination of the police officer as to the statement of one defendant, Inghram stated that he had a copy of the statement. During the presentation of the People's case in chief, the police officer testified without objection as to the account these defendants gave concerning their activities on the night of the robbery of the tavern. This officer was the last witness to testify during the People's case in chief.
The officer testified that Harness said he went to a tavern called the Establishment (not the tavern involved in this robbery) that night at about 10:30, where he met Brummell and Precup. He and Brummell stayed at the tavern until about closing time. Precup had left previously. When he and Brummell left they went to Precup's apartment and stayed until about 2 a.m.
This officer testified that Brummell, in his account of his activities, said that he went to the Establishment tavern that night and that Harness came in later. The officer at first stated that Brummell said they stayed until about closing time. The prosecutor then directed his attention to Brummell's statement, and he then changed his testimony and stated that Brummell said they stayed until a quarter to 12 or 12 o'clock. However, on cross-examination after again referring to Brummell's statement, he said that Brummell had stated they stayed until about closing time (1 a.m.). After leaving the tavern, Brummell stated that he and Harness went riding "in the north bottoms" in his car. He said that he had not seen Precup that evening and had not been at Precup's apartment. He also stated that shortly before his arrest he did not get out of his car near the place where the police arrested him.
The defense put on several witnesses that corroborated the statements defendants had given to the police officer concerning their presence in the Establishment tavern. Brummell did not testify but Harness did. In explaining his activities in a yard near the robbed tavern while they were under surveillance by the police, he said that he and Brummell got out of the car and went into the yard to relieve themselves shortly before their arrest. This occurred, he stated, after he and Brummell had left Precup's apartment and were riding around in Brummell's car. The remainder of his testimony essentially was the same as the officer had testified.
Harness' testimony and the testimony of the officer concerning Harness' statement to him following the arrest were basically consistent with the officer's testimony concerning what Brummell had said. That is, both Harness and Brummell contended that they were at the Establishment tavern that night until about closing time, which was 1 a.m. Thus, Harness' testimony, the statement he gave the officer, and Brummell's statement to the officer all agreed that these two defendants were at the Establishment tavern during the time of the robbery in the ...