Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Marvin E. Aspen, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendants, Louis Wolf and Albert Berland, were convicted of arson with intent to defraud an insurer (Ill. Rev. Stat. 1969, ch. 38, par. 20-1(b)) after a joint bench trial in the circuit court of Cook County. Both were sentenced to terms of 1 1/2 to 4 1/2 years in the Illinois State Penitentiary and fined $10,000. The appellate court reversed the convictions on two grounds: that the single, retained counsel could not effectively represent the conflicting interests of the two defendants and that there was insufficient evidence of guilt to sustain the convictions. (52 Ill. App.3d 96.) We granted the State's petition for leave to appeal under our Rule 315 (65 Ill.2d R. 315).
On November 19, 1969, a fire occurred in a 12-unit, three-story apartment building at 715 South Lawndale in Chicago, Illinois, owned by Berland through a land trust at the Lawndale National Bank. Firemen arrived at the scene at 11:15 or 11:30 a.m., and the fire was extinguished by about 12:30 p.m. An arson investigator from the Chicago Fire Department determined that the fire had been set. It had started when an accelerant was poured onto the floor in the bathroom or in the area between the bathroom and living room in a third-floor apartment and ignited.
Berland, through the Lawndale National Bank as trustee, initiated suit against the insurer of the building in the United States district court to recover $35,000 under the fire insurance policy. The insurance company interposed as defenses that Berland had misrepresented his fire-loss history in the insurance application and that the fire was the result of arson. The jury returned a general verdict in favor of the insurance company. The court of appeals reversed on the ground that the misrepresentations in the application were not a defense to the policy since the application was not incorporated in or attached to it. A new trial was required because the general verdict precluded determining whether the jury had accepted the misrepresentation or arson defense, and the court refused to accept the arson defense as a matter of law. Lawndale National Bank v. American Casualty Co. (7th Cir. 1973), 489 F.2d 1384.
An Illinois grand jury returned indictments against Wolf and Berland on May 11, 1973, about 3 1/2 years after the fire, while the civil case was pending on appeal in Federal court. Count I charged Wolf alone with knowingly damaging the real property of another without his consent under section 20-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 20-1(a)). Count II charged Wolf and Berland together with knowingly damaging a building by means of fire with intent to defraud an insurer (Ill. Rev. Stat. 1969, ch. 38, par. 20-1(b)). Count III charged both defendants with conspiracy to commit arson (Ill. Rev. Stat. 1969, ch. 38, par. 8-2).
A single, retained attorney entered his appearance on behalf of both defendants. Each defendant waived jury trial on January 14, 1974. Both defendants pleaded not guilty. Berland did not testify. Wolf denied he was present at the time of the fire. During the presentation of the State's case, attorney Jack G. Stein entered his appearance as additional co-counsel for defendant Wolf. Thereafter, at the conclusion of the People's case, count I, charging Wolf with the burning of the building without the owner's consent, was nol-prossed. Additional and separate counsel for each defendant appeared to present post-trial motions. A post-trial motion in arrest of judgment on the conspiracy count for both defendants was allowed on the grounds that the statute of limitations on that count had run (Ill. Rev. Stat. 1969, ch. 38, par. 3-5(b)). Judgment on the finding of guilty on the charge of arson with intent to defraud an insurer was entered.
The State introduced transcripts of depositions and testimony of Wolf and Berland from the civil case in Federal court. They were admitted pursuant to a stipulation but subject to a defense objection to references to prior fires. The trial judge correctly ruled he would consider the prior fires only if there was no remoteness and if there was a linkup between the offense in question and the prior fires, in accord with People v. Bishop (1934), 359 Ill. 112, 119-20.
The trial court also admitted into evidence a series of housing court files concerning properties found to be in violation of the Chicago housing code (Municipal Code of Chicago, ch. 78). They were admitted for the limited purpose of showing prior business relationships between Wolf and Berland in the subject and other properties, not to show prior fires. The files themselves or the testimony of Wolf and Berland in the transcripts from the Federal proceedings indicated that the properties belonged either to one of the defendants, his nominees or aliases, or those whose addresses were businesses owned by Wolf.
In 1966 defendant Wolf had negotiated the purchase of the building at 715 South Lawndale for Berland. Berland had introduced Wolf to the seller as the prospective purchaser and identified himself as the broker. Wolf purchased the property in his name and transferred it to Berland as his nominee. Title was placed in a land trust established by Berland. At one point Wolf's nephew was given an interest in the property as collateral for a loan by Wolf to Berland. The interest was returned to Berland when the loan was paid. "Fred Cooper," an alias used by Berland, was listed as the beneficiary of the land trust at one time. The addresses given for "Fred Cooper" were two of Wolf's business addresses.
Wolf helped manage the property by selecting tenants and collecting rent. He was frequently present in the vicinity of the building. Wolf examined its physical condition, ordered coal for it, and referred contractors to Berland.
In June 1969 Berland applied for fire insurance on the property. The application was purportedly notarized at Wolf's office by Maurice Blumenthal on June 20, 1969. Blumenthal had died in a car accident in September of 1968, and the date noted for the expiration of his notary's commission was in error. The application contained a false, negative answer to a question requesting "the applicant's 5 year loss record for fire." Insurance coverage in the amount of $100,000 was issued on August 13, 1969, by the American Casualty Company. Berland introduced testimony that under the policy he was required to insure the building for $100,000; that was 80% of the "actual cash value" of the structure, which is measured by replacement cost less depreciation of up to 50% of that cost rather than by market value or purchase price. Berland paid $18,000 for the building and spent approximately $29,000 on repairs.
Prior to the fire the building was two-thirds vacant. Rent revenues had fallen from $650 per month to $250 per month. The building had been cited for 35 violations of the Municipal Code of Chicago. The building was losing money, and Berland had tried to sell it on contract on three occasions. The purchasers reneged.
Albert Kyles was across the street from 715 South Lawndale on the morning of the fire. He observed two white men drive up to the building in a dark station wagon at around 9 or 10 a.m. and park in front of the building. The building was in a largely black neighborhood. One man carried a ladder to the building; the other carried a red gas can. Judging from the way the man walked, the can was full when he entered the building and empty when he left. The men remained in the building for three to four minutes. Shortly after the men left, Kyles saw smoke coming out of the building.
Kyles identified defendant Wolf as the man carrying the gas can. Kyles had seen Wolf on three or four prior occasions at a paint store and another time when he paid Wolf the $130 rent on an apartment his aunt had leased at 715 South Lawndale.
Evelyn Mayberry saw a dark station wagon drive up to 715 South Lawndale on November 19, 1969. Two white men sat in the car for a while apparently looking to see if anyone was coming. She saw one man take a ladder out of the car. A second man took a silver-colored gasoline can from the back of the station wagon. Ms. Mayberry identified the second man as defendant Wolf, whom she had seen on several previous occasions. He had walked around to the back of the building at 715 South Lawndale on the Sunday prior to the fire. On Monday, he removed the locks from the front door. On Tuesday he drove past the building several times. On Wednesday, Wolf entered the building with the gas can between 9:30 and 10 a.m. Ms. Mayberry went grocery shopping, and when she returned she learned there had been a fire at 715 South Lawndale.
Wolf testified on his own behalf. He stated he owned a station wagon in 1969. Three alibi witnesses testified on behalf of Wolf that they had had a meeting with him on the morning of the fire. Attorney Samuel Siegel testified Wolf was with him from 9:15 a.m. to 1:30 p.m. on November 19, 1969, and that he and Wolf had lunch together. He had no independent recollection of the meeting until he looked at his appointment calendar. The calendar, however, contained no indication of a meeting with Wolf on that day. It indicated only that Siegel had a 12:30 p.m. appointment with a client named Grosso. It did note a meeting with Wolf both two days before and two days after November 19. Ted Allen testified he saw Wolf in Siegel's office on November 19, 1969, and had lunch with Wolf. He had not remembered this meeting until he met with Siegel, Wolf, and the third alibi witness on the morning of the day he testified. The third witness, Anton Caithaimer, testified he saw Wolf at Siegel's law office between 9 a.m. and 1 p.m. on November 19, 1969. He had a cup of coffee with Wolf and Allen at about 12 p.m. Impeachment evidence consisting of time and pay records indicated Caithaimer was teaching school at that time on that day. He had been absent two days earlier.
The appellate court held that since Wolf was charged in count I with burning the building without Berland's consent, it was impossible for a single attorney to represent both defendants. It noted that the trial court should have perceived that there existed the possibility of conflicting defenses, thus it was incumbent upon the trial court to raise the issue sua sponte with respect to both defendants.
A defendant must show an actual conflict of interest manifested at trial in order to prevail in a constitutional claim of ineffective assistance of counsel due to joint representation of co-defendants by a single attorney. (People v. Durley (1972), 53 Ill.2d 156, 159-61; People v. McCasle (1966), 35 Ill.2d 552, 556; People v. Somerville (1969), 42 Ill.2d 1, 9.) Other jurisdictions concur in this position (see United States v. Mandell (7th Cir. 1975), 525 F.2d 671, 677, cert. denied (1976), 423 U.S. 1049, 46 L.Ed.2d 637, 96 S.Ct. 774; United States v. Lovano (2d Cir. 1970), 420 F.2d 769, 773; United States v. Boudreaux (5th Cir. 1974), 502 F.2d 557, 558; United States v. LaRiche (6th Cir. 1977), 549 F.2d 1088, 1095, cert. denied (1977), 430 U.S. 987, 52 L.Ed.2d 383, 97 S.Ct. 1687; United States v. Christopher (9th Cir. 1973), 488 F.2d 849, 851; State v. Jeffrey (1973), 163 Mont. 92, 96, 515 P.2d 364, 367; cf. United States v. Smith (10th Cir. 1972), 464 F.2d 194, 197 (holding ...