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February 4, 1980


The opinion of the court was delivered by: Baker, District Judge.


A jury convicted the petitioner in the Circuit Court of Champaign County, Illinois of unlawful use of weapons and of armed violence. His conviction was affirmed by the Illinois Appellate Court, 53 Ill. App.3d 1105, 15 Ill.Dec. 30, 373 N.E.2d 124 (1977), and by the Illinois Supreme Court, 74 Ill.2d 329, 24 Ill.Dec. 530, 385 N.E.2d 671 (1978). The United States Supreme Court denied certiorari. 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979).

The petitioner now seeks a writ of habeas corpus. At trial, the same lawyer represented both the petitioner, Peter, and his brother, William. The State had indicted William separately and then successfully moved to consolidate his case with Peter's. Because witnesses gave conflicting identifications of each brother as the sole perpetrator of the crimes, the petitioner contends that he and his brother had antagonistic defenses. He argues that these antagonistic defenses created a conflict of interest for the attorney and that this conflict deprived the petitioner of his sixth amendment rights to the effective assistance of counsel.

The facts surrounding the occurrence for which the petitioner was convicted are contained in the decision of the Illinois Supreme Court.

  At approximately 8:30 p.m., on May 4, 1976, Michael
  Rea was preparing to drive his car out of the parking
  lot of a grocery market in Champaign. As he waited for
  traffic to clear so that he could exit, a green
  Chevrolet started into the lot, but came to a
  screeching halt several feet from the side of Rea's
  car. In the front seat of that car were the driver and
  two passengers. The passenger on the right and driver
  both exchanged words with Rea. A witness, Lenford
  Russell, was standing approximately 35 feet from the
  Chevrolet during the occurrence. Russell testified
  that the passenger got out of the Chevrolet, picked up
  a stick, and while cursing Rea, hit Rea's car with the
  stick. According to Rea, however, the passenger did
  not hit Rea's car with the stick, but merely
  approached to within a few feet of the car. Rea opened
  his car door but did not get out.
    The evidence showed that the driver of the Chevrolet
  then got out, approached Rea's car while holding a gun
  at his side, and told Rea in strong language that he
  had better leave. Rea closed his car door and pulled
  out into the street. As he did so, the driver of the
  Chevrolet fired the gun at the ground a few feet
  behind Rea's car. The driver and passenger got back
  into the Chevrolet and left the scene.
    After traveling a short distance, Rea returned to
  the parking lot. Finding that the Chevrolet was gone,
  he went to a service station and asked the attendant
  to call the police. Thereafter, Rea and Russell
  related the incident to the police. That same
  evening, between 9:15 and 9:30 p.m., the Champaign
  police apprehended Peter Vriner, his brother William,
  and Stanley Vinson at a service station in Champaign.
  Vinson had arrived at the service station alone in one
  car, and the Vriners arrived a few minutes later in a
  green Chevrolet. The police recovered a gun from
  beneath the car of John Ruedi, a witness who was at
  the service station. Ruedi testified that Peter Vriner
  had thrown the gun beneath Ruedi's car as the police
  were arriving. The gun matched the description of the
  gun used earlier that evening at the parking lot.
    Later that evening, the Vriners and Vinson were
  three of the four people in a police lineup. There Rea
  identified William Vriner as the driver of the green
  Chevrolet and Vinson as the passenger who had
  approached Rea's car. Russell, independently, also
  identified Vinson as the passenger, but identified
  Peter Vriner as the driver.
    In separate indictments, Peter Vriner was charged
  with armed violence and unlawful use of weapons,
  William Vriner was charged with armed violence, and
  Stanley Vinson was charged with armed violence.
  William and Peter retained a private attorney to
  defend them. Another attorney represented Vinson. Upon
  motions by the State, the court consolidated the cases
  for trial.
    At trial, contrary to his out-of-court
  identification, Rea testified that Peter Vriner was
  the driver of the auto. Russell also testified,
  consistent with his identification at the lineup, that
  Peter was the driver. Rea and Russell each

  adhered at trial to his out-of-court identification of
  Vinson as the passenger. At the close of the State's
  case, the court granted a motion for a directed
  verdict in favor of William Vriner.
    In defense Peter Vriner testified that William had
  driven the car to the market that night and that Peter
  was the passenger whom the prosecution witnesses had
  identified as Vinson. William, no longer a defendant,
  also testified to that effect. Both stated that Vinson
  was not with them in the car. Another witness
  testified that he had been the third person in the car
  and that defendant's version was correct. This defense
  testimony was partially corroborated by Vinson and his
  several alibi witnesses, who placed Vinson at his home
  at the time of the incident at the parking lot.
    The jury returned a verdict of guilty against Peter
  Vriner and Vinson. The court granted Vinson's
  post-trial motion for judgment n.o.v., thereby leaving
  Peter Vriner as the only defendant in the case.

74 Ill.2d at 335-37, 24 Ill.Dec. 530, 385 N.E.2d 671.

Given this state of facts, in deciding whether the Vriners' retained attorney labored under a conflict of interest, the Illinois Supreme Court held:

  There is no indication that the attorney was in a
  position that would cause him to slight the interests
  of one client in favor of the other. . . .
  . . . . For us now to say that the presentation of the
  defense in this case demonstrated that an
  impermissible conflict of interest existed from the
  outset of the trial would be tantamount to adoption of
  a per se rule which, absent a knowing waiver, would
  require separate representation of criminal
  codefendants in every case.

74 Ill.2d at 341-42, 24 Ill.Dec. 530, 385 N.E.2d 671.

The Illinois Supreme Court indicated that, had the Vriners' attorney objected to the consolidation of their cases, this warning to the trial judge of the existence of a conflict might have been sufficient to invoke the rule of Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Holloway holds that, when defense counsel tells the trial judge that a conflict of interest exists in representing codefendants, the trial judge must either determine that a conflict does not exist, or that it is waived, or provide for separate representation of the defendants. Failure to do so is reversible error. Although ...

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