APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 11, 1979.
Defendant, Paul Nichols, and co-defendant Kelly Williams, over objection, were jointly tried in the circuit court of St. Clair County for the murder of Joseph Mosley. Following a jury trial, they were both found guilty and defendant Nichols was sentenced to a term of 14 to 20 years in the penitentiary. He appeals.
In this appeal defendant Nichols raises three issues: (1) whether he was denied the effective assisance of counsel because both he and Williams were represented by the public defender's office; (2) whether the court erred in refusing to provide funds for obtaining a psychiatric evaluation as to defendant's sanity at the time of the offense; and (3) whether defendant made a valid waiver of his rights against self-incrimination prior to confessing.
Defendant Nichols and co-defendant Williams were charged in one indictment with murder, and at arraignment, the court appointed the office of the public defender to represent them both. Shortly thereafter motions were filed on behalf of each defendant to suppress confessions and to sever their causes for trial. Both were subsequently denied.
In part, the defendant's motion to sever asserted that severance of the two causes was necessary because Williams' defense would be in conflict with and antagonistic to defendant's defense.
When the severance motions were argued on March 21, 1977, the court was informed that the defendant intended to present an insanity defense while Williams would argue that he had not committed the offense and that the only persons involved were the defendant and Cordia Dunnigan, a potential witness for the State. This latter theory of the offense differed from that arising from the separate confessions of defendant and Williams which were in agreement that Williams, not defendant, had inflicted the injuries which resulted in the victim's death.
After hearing arguments the court denied the motions for severance and the cause proceeded to trial.
The defendant's first contention is that he was denied the effective assistance of counsel because both he and Williams were represented by the public defender's office.
It is fundamental that 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), and that this right requires that the person represented shall receive the undivided loyalty of counsel (Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457).
1 Problems with respect to loyalty of counsel often arise in situations involving joint representation, that is, where one attorney represents several co-defendants. We must note initially that this case involves joint representation even though Nichols and Williams were represented by separate attorneys from the public defender's office. This court has held that it must take the view that co-defendants are represented by a single attorney where the public defender's office was appointed to represent them. (People v. Meng (1977), 54 Ill. App.3d 357, 369 N.E.2d 549; People v. Spicer (1978), 61 Ill. App.3d 748, 378 N.E.2d 169, appeal allowed, 71 Ill.2d 613.) Such was the case here.
2 Although joint representation of co-defendants is not a per se violation of the right to effective assistance of counsel (Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173) and a conflict of interests among co-defendants is not inherent in joint representation situations merely by virtue of such representation (People v. Vriner (1978), 74 Ill.2d 329, 385 N.E.2d 671; People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649), our supreme court has recognized two distinct situations which entitle a defendant to prevail on a claim of ineffective assistance of counsel because of joint representation of co-defendants. People v. Vriner (1978), 74 Ill.2d 329, 337-42.
The first situation, represented by the case of Holloway v. Arkansas, exists when an attorney is required to represent co-defendants whose interests are in conflict even though he adequately informed the court of the probable risk of conflict prior to trial. The second situation exists whenever a defendant can show an "actual conflict of interest manifested at trial." People v. Berland (1978), 74 Ill.2d 286, 299-300; People v. Vriner (1978), 74 Ill.2d 329, 339.
After examining the record, we find that the defendant must be held to have been denied effective assistance of counsel under the rule of Holloway v. Arkansas.
In Holloway the appointed attorney of co-defendants whose cases were consolidated made pretrial motions for separate counsel and represented to the court that, as a result 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 effective assistance to each of the clients. The trial court denied the motions and defendants were convicted after trial. The Supreme Court reversed, holding that in face of the representations made by the attorney, the court should have either appointed separate counsel or taken adequate steps to determine whether the risk of conflict was too remote to warrant separate counsel. The court further held that the trial court's failure to do so deprived the defendants of the guarantee of effective assistance of counsel.
3 In this case, the defendants' appointed attorney made a pretrial motion for severance based on the antagonistic defenses of the co-defendants. In addition, he specifically pointed out how their positions would conflict at trial. In essence, the public defender informed the court that in the interest of Williams he would present a defense which would accuse the defendant of being the murderer in order to prove Williams' professed innocence. This was nothing less than an attempt to "sell off" one client, the defendant, in order to save Williams. It is our belief that this information was sufficient to bring home to the court the existence of a ...