APPEAL from the Circuit Court of Macon County; the Hon. ANDREW
STECYK, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 31, 1978.
Defendants Maurer Distributing Co., Gerald Skeffington and Skeff Distributing Co. appeal their convictions of the offense of engaging in a conspiracy in restraint of trade in violation of section 3(1)(a) of the Illinois Antitrust Act (Ill. Rev. Stat. 1971, ch. 38, par. 60-3(1)(a)) and sentences of fines of $10,000, $500 and $9500, respectively, imposed by the circuit court of Macon County after a lengthy jury trial.
Pursuant to the terms of section 6(1) of the Act (Ill. Rev. Stat. 1971, ch. 38, par. 60-6(1)), the case was initiated and prosecuted by the Attorney General. We are faced at the outset with the question of whether, regardless of the other merits of the appeal, the judgments should be reversed and a new trial awarded because each of the defendants was represented throughout the trial by lawyers who were members of firms in which at least one member was a special assistant Attorney General for some specific type of civil proceedings unrelated to antitrust. It is contended that members of the firm representing defendant Maurer Distributing Co. were special assistant Attorneys General for cases in condemnation and a member of the firm representing defendants Skeffington and Skeff Distributing Co. was a special assistant Attorney General for public aid cases.
In People v. Cross (1975), 30 Ill. App.3d 199, 331 N.E.2d 643, decided after the instant trial, the defendant was represented in a criminal trial by a lawyer who was a special assistant Attorney General for inheritance tax proceedings. After conviction, defendant, represented by new counsel, contended in a post-conviction proceeding that he had been deprived of his right to effective assistance of counsel. We agreed and reversed, granting him a new trial. We concluded that because the Attorney General had responsibility to assist in State prosecutions in the trial court when necessary and to represent the prosecution in all cases before the supreme court, the commitment of the special assistant to the Attorney General conflicted with his commitment to his client. We did not discuss the difference between the relationship of the Attorney General to a special assistant as opposed to his relationship to an assistant whose authority is not so limited. We concluded that the evidence showed no waiver of the conflict of interest by the defendant. We also noted that the court had stated in People v. Fuller (1974), 21 Ill. App.3d 437, 315 N.E.2d 687, that a "per se" rule had been adopted in this State whereby if an attorney representing a criminal defendant had a conflict by virtue of a commitment to others, the defendant need not show actual prejudice to establish a violation of his right to counsel.
The "per se" rule began with People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441, the first of a series of cases in which a conviction was overturned because defense counsel had a commitment to others not charged with the crime, but which, nevertheless, conflicted with his duty to the accused. There, defense counsel was a member of a firm that represented the business entity victimized by the burglary and theft with which the defendant was charged. The court cited Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457, for the proposition that the defendant need not show actual prejudice to prove a violation of his right to effective assistance of counsel.
Stoval was followed in the supreme court by People v. Meyers (1970), 46 Ill.2d 149, 263 N.E.2d 81; People v. Kester (1977), 66 Ill.2d 162, 361 N.E.2d 569, and People v. Coslet (1977), 67 Ill.2d 127, 364 N.E.2d 67, where convictions were also set aside because of defense counsel's commitment to others. In Meyers, defense counsel, who also represented defendant's wife on a possible dramshop action against the tavern where defendant had been drinking prior to the offense charged, participated in proceedings at which the defendant pleaded guilty to the offense. In Kester, defense counsel had appeared as an assistant State's attorney earlier in the same proceeding. In Coslet, the defendant was charged with homicide in killing her husband. Defense counsel, when appointed in that capacity, represented the administrator of the husband's estate. Because the defendant's conviction might bar her from inheriting from the estate, the court ruled that counsel's commitment to the estate required a reversal of the conviction. (People v. Pendleton (1977), 52 Ill. App.3d 241, 367 N.E.2d 196, followed Cross.) A comprehensive discussion of these cases is contained in R. Ehrmann, The Per Se Conflict of Interest Rule in Illinois, 66 Ill. B.J. 578 (1978).
At the time of our decision in Cross, we were unaware of I.S.B.A. Ethics Opinions No. 335, approved October 24, 1970, and No. 364, approved June 26, 1971. I.S.B.A. Opinion No. 321, approved July 19, 1969, had ruled that a conflict of interest existed if a special assistant Attorney General, even though his work was limited to special civil fields, represented a defendant charged with the commission of a crime in a State court. The reasoning was similar to ours in Cross. Opinion No. 335 overruled Opinion No. 321 to the extent that No. 321 prohibited a special assistant Attorney General from accepting private employment adverse to the State in fields unrelated to his public employment. The opinion noted that the Code of Professional Responsibility adopted after Opinion No. 321 was rendered did not prohibit outside employment adverse to the State by a special assistant Attorney General, but only prohibited such employment in matters in which he might have responsibility or in a particular matter in which he had responsibility in the past. Opinion No. 364 followed Opinion No. 335 and stated that an assistant Attorney General with responsibilities outside the criminal field could properly represent defendants in State criminal proceedings.
1 As our society has become more complicated, the number of criminal cases to be tried has increased, as has the amount of litigation to which the State is a party. The Attorney General is the attorney for the State in all legal proceedings (Ill. Rev. Stat. 1977, ch. 24, par. 4) and has traditionally found it desirable to often seek aid in this litigation from attorneys local to the forum. The economics of the practice of law and the needs of clients in a more complex society have caused law firms to become larger. There is no dispute that if one member of a law firm has a conflict of interest, that conflict tarnishes all members of the firm. (See People v. Grigsby (1977), 47 Ill. App.3d 812, 365 N.E.2d 481.) Stoval and Coslet indicate that a valid waiver of a conflict of interest, if one exists, is difficult to obtain, particularly from an unsophisticated client. Because of the foregoing factors, the inevitable result of Cross is either to greatly limit the number of lawyers able to give local help to the Attorney General, to limit the number of lawyers able to discharge the responsibility of the bar to represent those charged with a crime or both. Of particular significance is the inhibition from doing pro bono or partially compensated criminal work which Cross places upon members of law firms whose members have from time to time assisted the Attorney General.
2 In seeking help in litigation, the Attorney General cannot delegate his responsibility to a lawyer whose help he might need but must appoint that lawyer as an assistant. He has adopted the practice of appointing such lawyers as special assistants with their authority limited to a particular type of litigation. If such a special assistant, whose authority does not include criminal cases, takes on the representation of a person charged in a criminal proceeding in which the Attorney General is involved, that attorney is not placed in a position as in Stoval where he might have to cross-examine and impeach his own clients. Neither is he placed in a position as in Meyers and Coslet where his civil clients stand to gain by the conviction of the individual he represents in the criminal case. The special assistant Attorney General for limited civil types of cases owes no duty to the Attorney General in criminal matters. His duty is owed solely to those whom he represents who are charged with the commission of a crime.
3, 4 It is true that the attorney who is a special assistant Attorney General may be influenced by a desire to retain his relationship with the Attorney General. In the private sector, one law firm may wish to hire another law firm to assist it in particular types of litigation. The firm being retained may have a desire for that relationship to continue but the relationship does not prevent that firm from participating in unrelated litigation adverse to the other firm. We consider the situation of a lawyer who represents a defendant in a criminal proceeding in which he is adverse to the Attorney General while at the same time being a special assistant Attorney General for unrelated civil cases to be more nearly analogous to the situation described in this paragraph than to that in Stoval, Meyers, Kester or Coslet. For this reason and the other reasons stated, we overrule Cross.
In the instant case, the existence of defense counsel's relationship to the Attorney General is presented only by affidavits filed at our request after the case was on appeal in this court. We need not consider whether this information is properly before us because we do not deem it sufficient to set aside the instant convictions.
Accordingly, we turn to the other aspects of the case.
The indictment charged seven corporations and six individuals with conspiring to fix wholesale prices of beer. Evidence was introduced tending to show that by agreement among various distributors, prices were simultaneously increased on certain of the better-selling brands of beer as sold in the more popular types of containers.
Defendants contend that the trial court erred in: (1) permitting the State to call Michael Maurer as a witness in front of the jury, (2) admitting into evidence the testimony of Frank Foley and the charts which he had prepared, (3) refusing to poll the jury with regard to newspaper articles published during the trial and (4) in various other ways which, in toto, denied them a fair trial. They also maintain that the associate judge assigned to try the case had no authority to do so. In addition, defendant Maurer Distributing Co. claims that its right to a speedy trial was denied.
Michael Maurer was the president and sole shareholder of defendant Maurer Distributing Co. Prior to calling him as a witness, the State moved, out of the presence of the jury, to grant him immunity pursuant to section 106-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 106-1). That section provides for a grant of full transactional immunity to the recipient. (People ex rel. Cruz v. Fitzgerald (1977), 66 Ill.2d 546, 363 N.E.2d 835.) Maurer objected to the motion, however, arguing that the Attorney General had previously promised immunity not only to him but to his defendant corporation. The court granted the motion. The State then called Maurer as a witness. Because of his indication that he would not testify, the court ordered that he first be examined out of the presence of the jury to see if he would still attempt to refuse to testify. The State then interrogated Maurer out of the presence of the jury and he refused to testify under claim of privilege.
The court next conducted a hearing upon the scope of immunity that had been granted but made no ruling in that respect. The State then requested that Maurer be placed on the stand in front of the jury so that it might question him. The defendants objected on the grounds that Maurer had indicated that he would refuse to testify and inferences from this procedure would prejudice their defense. The court, apparently believing that questioning the witness before the jury was a necessary step before holding him in contempt if he refused to testify, granted the State's request. Maurer was called in front of the jury and refused to testify. The court ordered him to do so and he continued to refuse. After being advised, out of the presence of the jury, as to his immunity and the consequences of his refusal, he then testified.
5 Error may occur when the prosecution calls a witness before the jury who refused to testify, if the prosecution knows in advance that the witness would claim the privilege and the claim of the privilege creates an innuendo prejudicial to the defendant. (See People v. Myers (1966), 35 Ill.2d 311, 220 N.E.2d 297.) However, when the witness, as here, subsequently testifies giving evidence highly favorable to the prosecution, any inference prejudicial to the defendant that arose from the claim of the privilege is superseded by the damaging effect to the defendant of the testimony itself. (See United States v. Foster (7th Cir. 1973), 478 F.2d 1001.) The procedure which took place here did not give rise to reversible error.
The State called Frank Foley as a witness, laying a foundation by showing that he was an accountant capable of analyzing voluminous records. He testified to having examined 1200 invoices selected by the prosecutor from a much larger number subpoenaed from the defendants. The invoices selected concerned beer sales by various defendants of the highest selling brands in the most popular containers for a three-day period in late December 1969. Foley had prepared charts depicting the prices which these invoices indicated that the defendants charged during that period. The charts indicated a simultaneous price increase by the distributors. The charts were admitted into evidence. The defendants contend that the testimony and the charts were erroneously admitted over their objection because (1) the subject matter of Foley's testimony was not proper for expert testimony, (2) he did not use or rely upon his expertise, (3) the charts did not represent an examination of the whole evidence, and (4) the charts were misused by the prosecution.
6 Expert opinion testimony is inadmissible on matters that are of common knowledge. (See discussion in Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill.2d 118, 273 N.E.2d 809.) However, where original evidence consists of numerous documents which cannot conveniently be examined in open court and the facts to be proved are calculations made from an examination of the documents, a witness capable of making the examination and calculations may testify to the results thereof. (Cleary, Handbook of Illinois Evidence § 11.25, at 203 (2d ed. 1963); Smith v. Sanitary District (1913), 260 Ill. 453, 103 N.E. 254; People v. Gerold (1914), 265 Ill. 448, 107 N.E. 165.) The price changes that took place during the three-day period could not have been calculated by the jury conveniently. Although the task was not a difficult one for Foley, it was necessary to show that he had sufficient expertise to do it. The evidence showed that he did rely upon this expertise in making the calculations. Foley did not give opinion evidence.
7 For a summary to be presented, the examination must be of the whole of the relevant documents. Here, it was not shown that the invoices presented to him did cover all of the sales for the particular defendants of the beer in the types of containers charted for the three days in question. While Foley did not chart the sales of Old Milwaukee Beer for the dates in question, Maurer had testified that was not one of the popular brands which had been subject to the price raise. Although the charts constituted a graphic summary of Foley's testimony, the charts' admission into evidence was within the discretion of the trial court. (Smith v. Sanitary District.) Although the charts were altered after the trial started, ...