United States District Court, Central District of Illinois
February 4, 1980
UNITED STATES OF AMERICA EX REL. PETER VRINER, PETITIONER,
EVERETT HEDRICK, SHERIFF OF CHAMPAIGN COUNTY, AND WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, RESPONDENTS.
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
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
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 Vriner
contended that his lawyer had objected to the consolidation, no objection
is shown in the trial court record. This absence caused the Illinois
Supreme Court to conclude:
Inasmuch as any conflict — based objection to
this joinder is not a part of the record before us, we
are precluded from applying the Holloway rule to
determine that Peter was denied the right to effective
assistance of counsel because of a conflict of
74 Ill.2d at 339, 24 Ill.Dec. 530, 385 N.E.2d 671
The petitioner persists in his assertion that his lawyer objected to
the consolidation but that the objection was omitted from the record.
This contention receives some support from the record itself, which shows
the trial judge referring to a hearing on the motion to consolidate.
Transcript at 14. A transcript of the proceedings in that hearing does
not appear in the record.
This court conducted an evidentiary hearing under 28 U.S.C. § 2254
(d) to determine if the Vriners' attorney had made such an objection and
to learn the nature of the professional relationship between defense
counsel and his clients. After hearing, the issues in this habeas
petition appear to be:
(1) Did a conflict of interest exist sufficient to violate the
petitioner's sixth amendment rights?
(2) If the conflict did exist, was it brought to the attention of the
trial judge; or, considering the circumstances, should the conflict have
(3) If a conflict existed, did the petitioner waive his right to an
attorney with undivided loyalty?
I. FINDINGS OF FACT
Objection to Consolidation
The evidence is conflicting about what took place on the morning the
cases were called for trial. That Peter's and William's cases were
joined, there is no doubt. Whether Peter's lawyer objected is a vacuity
in the trial court record. The trial judge testified that he had no
recollection of the event but that it was standard procedure to have a
motion shown in the verbatim transcript of the proceedings and in the
clerk's minutes in the court's docket. He was unable to suggest an
explanation as to why neither the transcript nor the minutes made any
mention of the motion to consolidate. That some sort of hearing took
place is evident from the colloquy between the trial judge and Vinson's
lawyer about the court's ruling on the motion to consolidate earlier on
the morning of trial. Transcript at 14.
The court reporter's testimony is interesting. He was an experienced
reporter. He had no recall of the events beyond what appeared on the face
of the transcript. In response to a question whether exchanges between
the court and counsel do not always appear in the record, he responded,
The testimony of the defense lawyer and the prosecutor on whether
objection was made to the joinder is diametrically opposed. Defense
counsel says he did object. The prosecutor says there was no objection.
The record does reflect that in the proceedings on post-trial motions
defense counsel reminded the court that he had objected to
consolidation. That assertion stands in the record uncontradicted by the
trial judge or the prosecutor. Moreover, defense counsel in the brief in
the appellate court again asserted that he objected to the consolidation
of Peter's and William's cases and that assertion again was not
controverted by the state.
Knowing that a ruling on consolidation did occur; taking into
consideration the blank in the record concerning the hearing on the
motion to consolidate; bearing in mind the court reporter's testimony
that dialogue is frequently missed in the record; and considering the
failure of the trial judge and the prosecutor to contradict defense
counsel's claims in the hearing on post-trial motions that he objected to
consolidation and the same failure in the State's brief on appeal, it is
more probably true than not true that defense counsel did object to the
consolidation. I find, therefore, that defense counsel did object to the
consolidation of petitioner's case with that of his brother.
In answer to questions concerning his professional relationship with
the petitioner, defense counsel said he had been retained by Peter,
William, and their father. Defense counsel viewed himself as representing
the family. He related that he had discussed with the family the
possibility of conflict arising in the interests of Peter and William and
that it might be necessary for the brothers to have separate lawyers.
Those discussions took place before the cases were consolidated and at a
time when separate trials were contemplated. There is no evidence to
indicate that any discussions concerning conflict were had after
consolidation. In fact, consolidation occurred on the morning of trial.
Transcript at 14.
Nothing in the evidence shows that defense counsel, after consolidation
for trial, renewed the discussion with Peter and William about
conflicting interests and separate lawyers. Nothing shows that the trial
judge interrogated Peter about his knowledge and understanding of the
perils in being represented by a lawyer serving two masters. There is a
total silence in the evidence concerning the petitioner's appreciation of
defense counsel's dilemma.
II. CONCLUSIONS OF LAW
1. The Bill of Rights guarantees that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the assistance of counsel
for his defense." U.S. Const. amend. VI. In a criminal prosecution, the
sixth amendment guarantees not
merely the right to assistance, but the right to effective assistance, of
counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158
(1932). One aspect of the right to effective assistance of counsel is the
right to a defense counsel whose undivided loyalties lie with his accused
client. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680
(1942). Permitting one lawyer to represent codefendants does not, in and
of itself, create a conflict of interest. But where a conflict of divided
loyalties is revealed to the court, then no material effect on the
outcome of the trial need be shown, and, absent a waiver, the prejudiced
defendant is entitled to a new trial. Holloway v. Arkansas, 435 U.S. 475,
98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).
2. When the same attorney represents codefendants who have antagonistic
defenses, such as here where each could claim he had been mistakenly
identified as the other, an inherent unconstitutional conflict of
interest exists, and specific instances of prejudice need not be shown.
United States ex rel. McClindon v. Warden, 575 F.2d 108, 114-15 (7th
Cir. 1978); see People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421 (1968);
Commonwealth v. Brooker, 219 Pa. Super. 91, 280 A.2d 561 (1971); People
v. Bentley, 402 Mich. 121, 261 N.W.2d 716 (1978); cf. Zurita v. United
States, 410 F.2d 477, 480 (7th Cir. 1969); United States v. Jeffers,
520 F.2d 1256, 1264 n. 13 (7th Cir. 1975) (acknowledging necessity of
automatic grant of new trial in egregious cases of conflict of
The evidence is uncontested that both William and the petitioner,
Peter, were occupants of the green Chevrolet automobile. At the police
lineup the victim identified William as the driver of the Vriner car and
the person carrying the gun. The eyewitness identified Peter. Defense
counsel testified in this court that he was aware of the conflict in the
identification testimony of the prosecution witnesses. He therefore was
also aware of his inability to give each his undivided loyalty because of
his inability to argue freely who was the driver, William or Peter.
While this conflict might have been alleviated by trying William and
Peter separately, see Case v. North Carolina, 315 F.2d 743 (4th Cir.
1963); People v. Walsh, 28 Ill.2d 405, 410, 192 N.E.2d 848 (1963), it was
rendered unbearable by the consolidation of the cases.
3. When an inherent conflict of interest is present, a court does not
need to find in the record specific instances of conflict to establish a
violation of the accused's constitutional rights. In such a case, the
prejudice of the conflict lies not in what counsel does but in what he
holds back from doing. In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.
1173, 55 L.Ed.2d 426 (1978) the court observed:
[I]n a case of joint representation of conflicting
interests the evil — it bears repeating —
is in what the advocate finds himself compelled to
refrain from doing, not only at trial but also as to
possible pretrial plea negotiations and in the
sentencing process. It may be possible in some cases
to identify from the record the prejudice resulting
from an attorney's failure to undertake certain trial
tasks, but even with a record of the sentencing
hearing available it would be difficult to judge
intelligently the impact of a conflict on the
attorney's representation of a client. And to assess
the impact of a conflict of interests on the
attorney's options, tactics, and decisions in plea
negotiations would be virtually impossible.
Id. at 490-91, 98 S.Ct. at 1181-82.
4. Nevertheless, in this case, specific instances of prejudice to the
petitioner are apparent from the record. In the opening statement, defense
counsel did not tell the jury that there was a conflict in the
identification made by the eyewitness and the victim.
Ladies and gentlemen of the jury, I don't believe much
in saying much in opening statements quite frankly,
because I prefer to let the witnesses tell you and
unfold the story to you. And I think you're going to
be surprised. And you have to wait until the end of
the story or mystery
is over with. And you have promised me that you will
not make up your minds until you hear all the
evidence, and you will listen carefully to the
evidence and not make up you mind until its all over
with. Thank you.
Transcript at 26-27. This failure opened the way for the prosecution to
charge recent fabrication when William, after his acquittal, testified
that he had fired the gun. Defense counsel was trapped at opening
statement by the conflicting interests of his clients. What was a gain
for one was a loss for the other.
In the cross-examination of the victim and the eyewitness, defense
counsel was not aggressive in his questioning and did not press about the
possibility of a mix-up by the two witnesses in their identifications.
Again, if he had, what he would have gained for one client would have
been lost by the other. Transcript at 46-48, 72-73, 79-80.
In the arguments for a directed verdict, defense counsel faced the same
dilemma. To argue to acquit William left Peter as the person positively
identified as the driver. Not to argue to acquit William, because Peter
would be left alone in the case as the person identified as the driver,
would be a dereliction of counsel's duty to William. Transcript at
5. The conflict was adequately brought to the attention of the trial
court. Not only has this court found that the petitioner's attorney
objected to consolidation, but also at trial the prosecutor delivered the
following opening statement:
I also expect that there may well be some conflict
in the evidence to come from the People's own
witnesses as to the identity of the man with the gun,
as to whether that was the defendant Peter Vriner or
the defendant William Vriner. I advise you of that at
this time because I believe that may well be one of
the factual issues which you'll have to resolve in
this case. So I invite your close attention to the
witnesses as they testify and tell you what they saw,
found, and heard that evening in their own words.
Transcript at 26.
6. That opening statement should have alerted the trial judge to the
existence of a conflict which would render defense counsel's services
ineffective. The Judge's failure to perceive indicia of conflict and warn
the accused was error. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.
1173, 55 L.Ed.2d 426 (1978); United States v. Gaines, 529 F.2d 1038,
1043-44 (7th Cir. 1976); United States v. Mandell, 525 F.2d 671, 677 (7th
7. The court notes that, under the circumstances presented in this
case, a prosecutor should call to the attention of the court and opposing
counsel the possibility of prejudicial conflict. A prosecutor has an
obligation to deal fairly and see that a defendant's constitutional
rights are not violated.
The United States Attorney is the representative not
of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice
shall be done.
Berger v. United States, 295 U.S. 78
, 88, 55 S.Ct. 629, 633, 79 L.Ed. 655
(1935). "The State's attorney is a sworn officer of the court and it is
his official duty to see that the defendant has a fair and impartial
trial." People v. Saylor, 319 Ill. 205, 214, 149 N.E. 767 (1925).
8. It is immaterial for purposes of determining whether a conflict
existed that the accused had a retained, rather than appointed,
attorney. The law cannot presume that the accused on his own could
understand the complex dangers of joint representation. United States v.
Gaines, 529 F.2d 1038, 1043 (7th Cir. 1976).
9. The Holloway-Gaines-Mandell rule of automatic reversal should apply
only in review by appellate courts. It should not apply in a habeas
corpus proceeding. Once it has been determined that a conflict exists,
a habeas court need not nullify a conviction solely because a trial court
failed in its duty to make a record on whether the petitioner waived his
right to counsel of undivided loyalty. The habeas court should assume the
unfulfilled duty of the trial court and make its own determination under
28 U.S.C. § 2254 (d) of the existence of a waiver.
10. Once the petitioner has shown the existence of an unconstitutional
conflict of interest, the burden shifts to the respondent to rebut the
presumption that a waiver did not occur. Glasser v, United States,
315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1941); Carnley v.
Cochran, 369 U.S. 506, 514, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962).
11. It was the respondents' burden to show that the petitioner
knowingly and intelligently waived his right to the assistance of
counsel. The respondents have failed to discharge that burden. I find
that the petitioner did not knowingly and intelligently waive his
constitutional right to the assistance of counsel, that his sixth
amendment rights were violated, and that he is therefore entitled to the
issuance of a writ of habeas corpus.
IT IS THEREFORE ORDERED, that a writ of habeas corpus hereby issue as
prayed. The respondents and each of them are commanded forthwith to
discharge the petitioner, Peter Vriner, from further detention or
commitment or imprisonment by reason of the herein described conviction
of the crimes of unlawful use of weapons and of armed violence in the
Circuit Court of Champaign County, Illinois.
IT IS FURTHER ORDERED that the stay of commitment of the petitioner
heretofore entered pending the disposition of this petition, be, and
hereby is, made final and absolute and that the petitioner be discharged
from custody and go hence without day.
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