APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD CLARK, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Madison County, co-defendants Richard Knowles and Donald Jenkins were both found guilty of two counts of rape and two counts of deviate sexual assault. The court subsequently sentenced Knowles to four concurrent terms of five to 10 years' imprisonment and Jenkins to four concurrent terms of four to eight years' imprisonment; however, 11 days after these sentences were imposed, the trial court, acting on a State's motion seeking their modification, altered the sentences so as to cause the terms of imprisonment imposed upon defendants for deviate sexual assault to run consecutive to the terms of imprisonment for rape.
In this appeal defendants raise the following issues: (1) whether defendants were denied the effective assistance of counsel; (2) whether the conduct and statements of the prosecutors during trial were so prejudicial and inflammatory as to deny defendants a fair trial; (3) whether the trial court improperly restricted and limited cross-examination by the defendants; (4) whether certain testimony elicited by the prosecutors from defense witnesses during cross-examination was improperly admitted; (5) whether the trial court erred in giving an instruction on accountability over the objection of defendants; and (6) whether the court's alteration of defendants' original sentences upon the State's motion was error.
We need not set out the facts of this case in detail since this court has already done so in People v. Muellner (1979), 70 Ill. App.3d 671, 388 N.E.2d 851, wherein we reviewed the conviction of Knowles and Jenkins' third co-defendant, Mark Muellner. It is sufficient for our purposes at this point to state that the acts of rape and deviate sexual assault which form the basis of the present charges were allegedly committed upon two young women, 18 years of age, by a group of nine young men, which included defendants, during the late evening and early morning hours of August 6 and 7, 1976, at a place in Madison County known as Choteau Island.
The gist of the complainants' testimony was that they encountered a carload of men at a service station in St. Louis, Missouri, when they stopped to use its restroom. Defendant Knowles and another man disengaged themselves from the group, and without being invited to do so got into the complainants' automobile and refused to leave. They then directed the women to drive to a nearby park where they would meet the men in the other car. In the next hour, the complainants were directed to and did drive these men to several places, including several service stations where complainants could have sought help but did not because they "didn't know what would happen if they did." During the course of this driving, the group entered Illinois and eventually stopped at Choteau Island. At this spot, each woman was dragged off by several men and forced to perform a multitude of sexual acts without her consent. The testimony of one complainant indicated that during the 4 1/2 hours she was detained defendant Jenkins compelled her to have oral, anal and vaginal intercourse with him and that Knowles compelled her to engage in vaginal and anal intercourse. The other complainant's testimony indicated that Jenkins forced her to have vaginal intercourse and that Knowles forced her to have vaginal and anal intercourse with him.
Four of the issues which defendants Knowles and Jenkins raise in this appeal have already been considered by this court in People v. Muellner. Our findings with respect to them in Muellner will be controlling and dispositive of them here.
Three of these common issues were and are again found to be non-meritorious. These are: whether certain conduct and statements of the prosecutors during the evidentiary portion of the trial were so prejudicial as to deny defendants a fair trial; whether the trial court improperly restricted and limited cross-examination by the defendants; and whether the trial court erred in giving an instruction on accountability over the objection of defendants. The fourth common issue, whether the trial court erred in modifying defendants' original sentences, is meritorious and will be commented upon later in this opinion.
The issues which remain for our consideration are: whether the defendants were denied the effective assistance of counsel; whether the prosecutor's closing arguments were so prejudicial as to deny defendants a fair trial; and whether certain testimony elicited by the prosecutors from defense witnesses during cross-examination was improperly admitted. Before turning to these issues, we must comment upon the State's argument that defendants have waived these claims of error by failing to present them to the trial court in a written motion for a new trial. See People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Harrawood (1978), 66 Ill. App.3d 163, 383 N.E.2d 707.
1, 2 The case law on waiver of issues is founded upon section 116-1(b) of our Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 116-1(b)), which requires a defendant to file a written post-trial motion within 30 days of the return of the verdict. The general rule is that the failure by a defendant to raise an issue in a written motion for a new trial constitutes a waiver of that issue as a ground for reversal on review. (People v. Pickett.) Although an oral motion will suffice if the State does not object, the requirement that it be in writing is mandatory if the State insists upon it. (People v. Whitehead (1966), 35 Ill.2d 501, 221 N.E.2d 256; People v. Flynn (1956), 8 Ill.2d 116, 133 N.E.2d 257.) Moreover, the failure to file any post-trial motion constitutes a waiver of all errors raised on appeal. People v. Hammond (1977), 48 Ill. App.3d 707, 362 N.E.2d 1361.
3 All of these rules have some relevance to the positions of the current defendants. The facts with respect to defendant Jenkins are as follows. On June 2, 1977, Jenkins appeared before the court for sentencing. Prior to sentencing, Jenkins' counsel, who also represented Muellner, sought permission and was allowed to make an oral post-trial motion on behalf of his clients. Defense counsel made a rather lengthy argument in support of his motion. The State then objected to the motion, stating that it was impossible for it to make an adequate response, and moved that defendants Jenkins and Muellner be required to file a written post-trial motion. The court did not rule on this motion but instead denied the defendant's post-trial motion, stating that it was doing so after reviewing its trial notes and the evidence in the cause. Upon consideration of these extraordinary circumstances, this court in Muellner addressed the merits of the contentions, expressing grave doubts as to whether the State's objection or insistence that the motion be in writing was effective so as to require such a filing to preserve claims of error when such objection was made after the defense motion was made and completed. (Muellner, 70 Ill. App.3d 671, 679-80, 388 N.E.2d 851, 857-58.) For the same reason, we must address the merits of defendant Jenkins' contentions here.
At this same hearing, defendant Knowles' counsel stated that he would refrain from making an oral post-trial motion until after Knowles had been sentenced. However, counsel neither followed through on this intention nor filed a written post-trial motion on behalf of his client. Ordinarily, we would be required to find that defendant Knowles had waived all errors raised on appeal under the rule of Hammond; however, in this case other considerations dictate that we not do so.
4 On appeal, Knowles contends that he was denied the effective assistance of counsel. This claim is based in part upon his counsel's failure to file a post-trial motion. Where a claim of ineffective assistance of counsel is based upon counsel's failure to file a post-trial motion, consideration of the trial errors alleged on appeal is compelled to determine whether any such contentions are of substantial merit. (People v. Lamparter (1977), 56 Ill. App.3d 823, 371 N.E.2d 997; People v. Greenlee (1976), 44 Ill. App.3d 536, 358 N.E.2d 649; see also People v. Bailey (1976), 42 Ill. App.3d 638, 356 N.E.2d 410.) This review is required since a counsel's failure to assert the right of a defendant to a new trial following a trial where plain and grievous error was committed amounts to ineffective assistance of counsel. (People v. Lamparter.) Consequently, we will address the merits of Knowles' contentions as well as Jenkins'.
5 Defendant Jenkins' first contention is that he was denied the effective assistance of counsel because his attorney labored under a per se conflict of interest. He argues that such a conflict existed because his retained counsel also served as a part-time assistant public defender at a time when another part-time assistant represented an accomplice who was granted immunity. This claim of error rests entirely upon the premise that defendant Jenkins and the accomplice, Robert Patania, must be deemed to have been represented by a single attorney since both of their attorneys were part-time assistant public defenders at the time Patania obtained immunity from prosecution for these offenses. Since this premise is not warranted under the facts of this case, Jenkins' first contention of error is without merit. Although this court has held that for the purpose of conflict of interest analysis it must take the view that co-defendants are represented by a single attorney where the public defender's office has been appointed to represent them at trial (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 granted (1978), 71 Ill.2d 613), this rule is not applicable to the case at bar.
Although Jenkins' and Patania's attorneys were both affiliated with the office of the public defender as part-time assistants when Patania obtained immunity, they did not represent their individual clients in such capacity. Rather, they represented them in their capacity as private, retained attorneys. Under such circumstances, there exists no reason to treat these attorneys as alter egos of the public defender. Consequently, no position which ...