Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Albert G. Webber III, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
The appellant, Johnny Wilson, was convicted of one count of burglary (Ill. Rev. Stat. 1973, ch. 38, par. 19-1) in the circuit court of Macon County. A majority of the Appellate Court, Fourth District, affirmed (48 Ill. App.3d 885), holding, inter alia, that appellant had not been denied the effective assistance of counsel as a result of his having been represented at trial by the same attorney who represented appellant's two co-defendants in the joint trial of the three. We granted appellant's petition for leave to appeal on that issue, and we now reverse.
On June 11, 1974, a grand jury indicted appellant, along with Kenneth Echols, William Echols, Thomas Ferguson, and Gregory Van Cook, for burglary and attempted burglary in connection with a June 5, 1974, incident at Valley's Tavern in Decatur. (The State subsequently nol-prossed the charge of attempted burglary.) At a preliminary hearing held on June 21, 1974, the court appointed the public defender to represent all of the defendants except appellant, who evidently indicated that he intended to retain counsel. The court did, however, appoint the public defender to represent appellant for purposes of the preliminary hearing. On July 5, 1974, at a subsequent hearing, the court sought to determine who was representing the appellant. From the ensuing colloquy, it appears that the attorney whom appellant had intended to "retain" was named Birk, an assistant public defender, who had represented appellant on a prior misdemeanor charge:
"The Court: Once again, earlier you said you would hire an attorney, you could and plan to.
Appellant: No, I was trying on planning to get Mr. Birk, you know, to see if he could take my case.
The Court: By hiring him?
Appellant: No, by Public Defender.
The Court: You don't appoint you don't select your public defender, especially when you posted bond and you posted, what, $300.00?
The Court: We will see you will have to prepare an affidavit and then we'll see if you qualify.
Appellant: Right." (Emphasis added.)
Sometime after the foregoing hearing, appellant filed an affidavit of indigency, and requested appointment of counsel. The public defender was appointed. Approximately one month later, the public defender moved to sever the trials of Ferguson and Van Cook from that of appellant and the Echols brothers, on the grounds that Ferguson and Van Cook had made statements exculpating themselves at the expense of the appellant and the Echols brothers, and had made admissions prejudicial to appellant and the Echols brothers. The State did not object, and the court granted the motion. Two days later, the public defender also obtained leave to withdraw as counsel for Ferguson and Van Cook, for whom the court appointed separate counsel.
The first trial of this cause ended in a mistrial (on August 26, 1974) after the jury was impaneled but before opening statements. The second trial also ended in a mistrial (on September 24, 1974) as a result of a State witness' reference to the defendants' having known each other in jail. The third trial resulted in the conviction at issue here.
At that trial, defendant Ferguson, testifying under a grant of immunity, gave the following account of the events of ...