Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Champaign
County, the Hon. Birch E. Morgan, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Champaign County, the defendant, Peter Vriner, was convicted of unlawful use of weapons and two counts of armed violence, one based on intimidation and one on aggravated assault. The court sentenced defendant to a term of 364 days for unlawful use of weapons, to run concurrently with terms of one to three years on each of the armed violence convictions. The appellate court, by order, vacated the conviction of armed violence based on aggravated assault and affirmed the convictions of unlawful use of weapons and armed violence based on intimidation. (53 Ill. App.3d 1105.) We granted defendant leave to appeal.
Defendant contends that (1) he was denied effective assistance of counsel, inasmuch as one attorney represented defendant and his brother, a co-defendant; (2) the evidence of his guilt was insufficient to sustain a conviction; (3) he was denied a fair trial due to improper statements made by the prosecutor; (4) his right to due process was violated because he was charged with a felony founded upon the same facts that would permit a misdemeanor charge; (5) the jury was improperly instructed; (6) he cannot, under People v. King (1977), 66 Ill.2d 551, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273, be guilty of both armed violence based on intimidation and unlawful use of weapons; and (7) the trial court erred in refusing to permit defendant to present the results of polygraph examinations.
At approximately 8:30 p.m., on May 4, 1976, Michael Rea was preparing to drive his car out of the parking lot of a grocery market in Champaign. As he waited for traffic to clear so that he could exit, a green Chevrolet started into the lot, but came to a screeching halt several feet from the side of Rea's car. In the front seat of that car were the driver and two passengers. The passenger on the right and driver both exchanged words with Rea. A witness, Lenford Russell, was standing approximately 35 feet from the Chevrolet during the occurrence. Russell testified that the passenger got out of the Chevrolet, picked up a stick, and, while cursing Rea, hit Rea's car with the stick. According to Rea, however, the passenger did not hit Rea's car with the stick, but merely approached to within a few feet of the car. Rea opened his car door but did not get out.
The evidence showed that the driver of the Chevrolet then got out, approached Rea's car while holding a gun at his side, and told Rea in strong language that he had better leave. Rea closed his car door and pulled out into the street. As he did so, the driver of the Chevrolet fired the gun at the ground a few feet behind Rea's car. The driver and passenger got back into the Chevrolet and left the scene.
After traveling a short distance, Rea returned to the parking lot. Finding that the Chevrolet was gone, he went to a service station and asked the attendant to call the police. Thereafter, Rea and Russell related the incident to the police.
That same evening, between 9:15 and 9:30 p.m., the Champaign police apprehended Peter Vriner, his brother William, and Stanley Vinson at a service station in Champaign. Vinson had arrived at the service station alone in one car, and the Vriners arrived a few minutes later in a green Chevrolet. The police recovered a gun from beneath the car of John Ruedi, a witness who was at the service station. Ruedi testified that Peter Vriner had thrown the gun beneath Ruedi's car as the police were arriving. The gun matched the description of the gun used earlier that evening at the parking lot.
Later that evening, the Vriners and Vinson were three of the four people in a police lineup. There, Rea identified William Vriner as the driver of the green Chevrolet and Vinson as the passenger who had approached Rea's car. Russell, independently, also identified Vinson as the passenger, but identified Peter Vriner as the driver.
In separate indictments, Peter Vriner was charged with armed violence and unlawful use of weapons, William Vriner was charged with armed violence, and Stanley Vinson was charged with armed violence. William and Peter retained a private attorney to defend them. Another attorney represented Vinson. Upon motions by the State, the court consolidated the cases for trial.
At trial, contrary to his out-of-court identification, Rea testified that Peter Vriner was the driver of the auto. Russell also testified, consistent with his identification at the lineup, that Peter was the driver. Rea and Russell each adhered at trial to his out of-court identification of Vinson as the passenger. At the close of the State's case, the court granted a motion for a directed verdict in favor of William Vriner.
In defense Peter Vriner testified that William had driven the car to the market that night and that Peter was the passenger whom the prosecution witnesses had identified as Vinson. William, no longer a defendant, also testified to that effect. Both stated that Vinson was not with them in the car. Another witness testified that he had been the third person in the car and that defendant's version was correct. This defense testimony was partially corroborated by Vinson and his several alibi witnesses, who placed Vinson at his home at the time of the incident at the parking lot.
The jury returned a verdict of guilty against Peter Vriner and Vinson. The court granted Vinson's post-trial motion for judgment n.o.v., thereby leaving Peter Vriner as the only defendant in the case.
Defendant contends that dual representation at the joint trial of defendant and his brother denied defendant the effective assistance of counsel. He asserts that, on the basis of the contradicting evidence against the brothers, the attorney was faced with a conflict of interests.
The sixth and fourteenth amendments to the United States Constitution guarantee the right to effective assistance of counsel. (See Powell v. Alabama (1932), 287 U.S. 45, 71, 77 L.Ed. 158, 172, 53 S.Ct. 55, 65.) The Supreme Court has interpreted this guarantee to mean that, although joint representation of co-defendants is not a per se violation, to require an attorney to represent two co-defendants whose interests are in conflict denies one of them the right to effective assistance of counsel. 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, 481-83, 55 L.Ed.2d 426, 432-33, 98 S.Ct. 1173, 1177.
In Holloway, where, as here, defendants' cases were consolidated, the attorney appointed for the co-defendants made pretrial motions for separate counsel. He represented that, because of confidential information received from the co-defendants, he was confronted with the probable risk of a conflict of interests that would preclude him from providing each of the clients effective assistance. The trial court denied the motion. Subsequently both defendants were convicted. The Supreme Court reversed, holding that, in the face of the representations made by the attorney, the court should have either appointed separate counsel or taken adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel; that, by failing to do so, the court deprived defendants of the guarantee of effective assistance of counsel. In addition to requests for separate counsel, the rule in Holloway presumably would extend to requests for separate trials, because in certain cases the conflict may be alleviated by trying the defendants separately. See Case v. North Carolina (4th Cir. 1963), 315 F.2d 743; People v. Walsh (1963), 28 Ill.2d 405, 410; Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 143 (1978).
Here, the three defendants were indicted separately. The State first moved to consolidate only the case against Peter Vriner with the case against Vinson. The court asked the attorney for Peter if he had an objection to the motion, whereupon the following colloquy took place:
"[VRINER'S COUNSEL]: I do Your Honor. Because I have been sick all this time I haven't completely investigated this matter. We might have some diametrically opposed defenses. But that's the only thing I can say at the present time.
THE COURT: They may have, but you don't know at this time, is that correct?
[VRINER'S COUNSEL]: That's correct.
THE COURT: Are there any statements, or confessions, or anything of that kind being used in these two cases, made by one ...