Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Earl E. Strayhorn, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 29, 1980.
Defendant, John Miller, was tried in the circuit court of Cook County in October 1976 on charges of attempted murder and armed robbery. He was acquitted of attempted murder, and a mistrial was declared as to the charge of armed robbery. On retrial of the armed robbery charge, a jury found defendant guilty, and the court sentenced him to a term of imprisonment of four to eight years. In his appeal to the appellate court, defendant argued that evidence of guilt was insufficient; that the circuit court erred in refusing to grant a new trial after having heard the confession of a defense witness, Alfred Myles, which exculpated defendant; and that defendant received ineffective assistance of counsel by virtue of the circuit court's appointment of an assistant public defender to advise Myles, the defense witness, of his rights when asked potentially incriminating statements by defendant's attorney, also an assistant public defender. The appellate court addressed only the last argument and agreed with defendant that he received ineffective assistance of counsel, reversing the judgment of conviction and remanding the cause to the circuit court for a new trial. (67 Ill. App.3d 415.) We allowed the State's petition for leave to appeal.
Lloyd Dixie testified for the State that he was robbed by three individuals in the early morning of March 5, 1976. According to Dixie, he was approached by two men and a woman at approximately 2:40 a.m. as he walked along the 7300 block on South Phillips in Chicago. The three announced a stickup, knocked Dixie to the ground, and took Dixie's wallet, $80 and a ring. At trial, Dixie stated that one of the three assailants had a gun, identifying defendant, seated in the courtroom, as that person. Dixie also stated that he heard three shots as the assailants fled.
Following the robbery, Dixie found Chicago police officers Lemont Thompson and Gerald Boone in a patrol car at a nearby intersection. While Dixie was relating the details of the incident to the officers, Dwayne Chapman approached the car and indicated that he had witnessed the robbery. Chapman gave an account of the robbery which was substantially similar to that of Dixie. Chapman also told the officers, and later testified at trial, that the three assailants entered an apartment building at 7350 South Phillips after robbing Dixie and firing three shots at Dixie while fleeing. He also said that he recognized two of the three assailants as residents of apartment 304 in that building.
Officer Thompson also testified on behalf of the State, relating first how he and fellow officer Boone were approached by Dixie and Chapman. Upon being told by Chapman that two of the three assailants lived in apartment 304 at 7350 South Phillips, Thompson proceeded to the building with Boone, Dixie and Chapman. Other officers were summoned and arrived shortly thereafter. Although he heard movement inside, Thompson testified that he was denied admittance for 5 to 10 minutes, at which time the door was opened by a woman who identified herself as Barbara Meyers. Defendant and two other men were found in beds in a rear bedroom. Thompson testified that one of Dixie's identification cards was found on the ledge of the bedroom window and that more of Dixie's belongings were found on the ground below the window. The officers also recovered $66 from under the mattress on which defendant was lying.
Following the State's case in chief, defendant's attorney, an assistant public defender, indicated that he would call Alfred Myles to the stand. Myles had been recently charged with the robbery of Dixie, and the attorney said that Myles, if called by defendant, would admit his participation in the robbery. Being so informed, the court appointed another assistant public defender to advise Myles of his rights. At the time of trial, Myles was also under indictment for murder and was being represented by the public defender's office in that case. He had also been represented by the public defender in an earlier case which resulted in conviction. The charge involved in that case is not entirely clear from the record, although Myles later testified in post-trial proceedings that his only prior conviction was for robbery.
The assistant public defender assigned to advise Myles objected to his appointment, requesting the court to appoint counsel other than someone from the public defender's office and to allow the office to withdraw as counsel in Myles' pending murder prosecution. The court denied the request, telling the assistant public defender that he found no conflict and "that you as an attorney know what his rights are and that you can properly advise him as to his rights * * *."
After consulting with the assistant assigned to him, Myles refused to testify. Defense counsel requested that Myles take the stand, and the court so ordered. When asked about his knowledge of, and participation in the robbery, Myles invoked the privilege against self-incrimination.
Barbara Meyers and Ray Horton were also called by the defense, and both testified that they were with defendant in apartment 304 from 9 p.m. on the night of the robbery until the police arrived. Meyers further testified that her brothers, Alfred and Eddie Myles, entered the apartment with Felicia Allen at approximately 2 a.m., and both Meyers and Horton testified that Alfred fled through a rear window before the police arrived.
On cross-examination, Meyers stated that defendant was like a brother to her and that she did not want him to go to jail. She also stated that she had not previously told anyone that Alfred had gone out the window and admitted that she had not mentioned this at defendant's original trial. She also admitted that she had fallen asleep at approximately 10:30 or 10:45 p.m. and did not awake until 3 a.m., except to feed her baby shortly after 2 a.m. Finally, she testified that the $66 found under a mattress in the rear bedroom was hers and was placed there by her.
Eddie Myles also testified on behalf of defendant, stating that he had pleaded guilty to the robbery of Dixie and that he, his brother Alfred and Felicia Allen were the three who committed the robbery. Defendant, he said, was asleep in apartment 304.
On cross-examination, Eddie Myles admitted that he had testified at defendant's original trial that "an unknown man" was the other male participating in the robbery and that this "unknown man" was the one with the gun. He explained that the "unknown man" to whom he had referred was ...