APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN J. COVEY, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
On March 31, 1978, defendant was convicted of unlawful delivery of a controlled substance after a bench trial in the Circuit Court of Peoria County. On appeal she contends that because her appointed attorney represented a co-defendant with conflicting interests, she did not receive effective assistance of counsel.
At trial, George Murray, an I.B.I. agent, testified that on August 31, 1977, he and an informant, Bill Lemons, went to apartment number 471 of the Harrison Homes in Peoria where they were admitted by a woman whom Murray identified as defendant. When asked if she had any "preludins" for sale, the woman said that she did not, but that she would take the men to someone who did. Murray stated that he and Lemons followed the woman to apartment number 474 of the Harrison Homes. They entered the apartment which was occupied by Jo Ann Webber, also known as Jo Ann Bowman. The woman told Webber that the two men were customers. Webber then sold them eight pills containing the controlled substance for $40.
Webber, a co-defendant who had previously pled guilty and been sentenced, testified on behalf of defendant. During direct examination she stated that defendant never brought Murray to her apartment, and that, in fact, she had never seen Murray in the company of defendant. During cross-examination she stated that Pam Gorden was the woman who brought Murray and Lemons to her apartment on the date in question. Defense counsel interrupted the cross-examination a short time later to request that he be permitted to confer briefly with the witness in private. When asked by the court why he wanted to do so, he stated, "I don't think I can really indicate that now having represented her [the witness] in some matter." The court denied the request.
After the cross-examination of Webber had been completed, the court, having discussed the matter further with counsel, made the following statement:
"On the record, the witness, Jo Ann Webber, or Jo Ann Bowman, was the client of Mark Rose, and Mark is the attorney for this [d]efendant. They are co-defendants in this case. Because of the testimony of Jo Ann Webber and because of cross-examination of Mr. Gaubas [the prosecutor], Mr. Rose * * * feels that Jo Ann Bowman should talk with an attorney before he cross-examines [sic] her. The Court does not know the specifics or even the generalities of the problem involved."
The court then appointed another lawyer to confer with the witness prior to redirect examination.
During the redirect examination the following colloquy occurred:
"MR. ROSE: * * * Jo Ann, you have testified as to specific occurrences on the 31st of August, of last year, is that correct?
Q. Now, do you specifically recall the individual referred to as Pam Gorden being present during that specific incident?
MR. GAUBAS: Objection, your honor. It's been asked and answered.
MR. GAUBAS: Object further on the basis that he is impeaching ...