The opinion of the court was delivered by: Baker, District Judge.
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
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
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
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.
Given this state of facts, in deciding whether the Vriners' retained
attorney labored under a conflict of interest, the Illinois Supreme Court
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.
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 ...