APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Kelly B. Williams, and his co-defendant, Paul Nichols, were convicted of the murder of Joseph Mosley following a joint jury trial in the Circuit Court of St. Clair County. Defendant was sentenced to a term of 25 to 75 years.
On appeal, defendant contends that (1) the joint representation of himself and co-defendant, Paul Nichols, by the public defender's office denied him effective assistance of counsel; (2) the denial of his motion for severance denied him his right to confrontation; (3) the court abused its discretion in denying his motion for mistrial; and (4) the court abused its discretion in not ordering a competency examination upon the request of defense counsel.
Kelly B. Williams and Paul Nichols were jointly indicted and tried for the murder of Joseph Mosley. The office of the public defender was appointed to represent both the defendant and Nichols.
Defendant and Nichols at the time of their arrests both made similar inculpatory statements to the police indicating that defendant, not Nichols, had inflicted the injuries which resulted in the victim's death. Motions to suppress based on the involuntariness of the confessions were denied.
Defendant and Nichols filed pretrial motions for severance, asserting that their conflicting and inconsistent defenses made separate trials necessary. At the hearing on the motions, defendant stated that his intended defense would be that Nichols and another individual, and not he, had committed the crime and that his prior statement to the police was involuntary. Nichols intended to present an insanity defense but not deny his presence when the offense was committed. Defendant argued that having three versions of the crime, his prior statement, Nichols' statement and his intended defense would unduly confuse the jury. He further contended that evidence exculpating him would lose its importance if introduced at the same trial with Nichols. The State argued that Nichols' insanity defense was not antagonistic to defendant's defense. The State further argued that neither defendant would be prejudiced by the introduction of either of the statements since they were substantially similar. The court denied the motion for severance finding that the defenses were not antagonistic and that the introduction of the statements of defendant and Nichols would not violate defendant's sixth amendment right to confrontation.
Defendant contends on appeal that a per se conflict of interest existed denying him effective assistance of counsel based on the joint representation by the public defender's office when he and Nichols asserted inconsistent and antagonistic defenses.
It is fundamental that the right to effective assistance of counsel guaranteed to criminal defendants by the sixth and fourteenth amendments to the United States Constitution entitles a defendant to the undivided loyalty of counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173; Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.) The Supreme Court of Illinois has held that requiring or permitting one attorney or individual assistants from the same public defender's office to represent multiple defendants is not a per se violation of the right to effective assistance of counsel. (People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649; People v. Vriner (1978), 74 Ill.2d 329, 385 N.E.2d 671; People v. Robinson (1979), 79 Ill.2d 147, 402 N.E.2d 157; People v. Spicer (1979), 79 Ill.2d 173, 402 N.E.2d 169.) In People v. Robinson three cases were consolidated on appeal. The court there concluded that one defendant had waived any possible conflict of interest on the part of his counsel, that a conflict of interest existed as to one defendant which was alleviated by the severance of defendants' trials, and that no prejudice resulted from joint representation of the third defendant. The court in People v. Robinson further concluded that the decisions of the United States and Illinois Supreme Courts> (citing Glasser, Holloway, Berland and Vriner, among others) furnish guidance adequate to avoid conflicts of interests which will impede the furnishing of effective assistance of counsel.
In People v. Miller (1980), 79 Ill.2d 454, 404 N.E.2d 199, our supreme court reaffirmed that it had rejected the notion that a public defender's office is to be treated as a law firm or an entity in considering a conflict of interest claim and that in a given situation, where one assistant may not effectively represent two competing interests, two assistants might be able to do so. The court then went on to conclude that Miller's defense counsel's vigorous representation belied a claim of ineffective assistance of counsel.
1 In the instant case, the defendant contends that his pretrial motion for severance may be said to have alerted the court that a possible conflict of interest existed; however, we note that defendant did not expressly raise the objection of ineffective assistance of counsel at trial or in his post-trial motion, and nothing in the motion for severance or the arguments thereon indicated the existence of a conflict. Therefore, defendant has waived any error resulting from the failure of the trial court to appoint private counsel. People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227; People v. Robinson.
We are not unmindful of the fact that we held in People v. Nichols (1979), 70 Ill. App.3d 748, 388 N.E.2d 984, co-defendant's appeal, that sufficient information was presented in the pretrial motion for severance to apprise the court that a conflict existed as to defendant, Nichols. Defendant's denial of guilt by accusing Nichols and a companion of the murder and denying his presence at the time of the offense would adversely affect the presentation of Nichols' defense. With respect to this defendant, however, there was no indication that Nichols' insanity defense would adversely affect defendant's right to effective assistance of counsel. In fact, from the presentation of defendant's intended defense to the court, it appeared that he was receiving the undivided loyalty of counsel at the expense of his co-defendant, Nichols. An examination of the record discloses that the public defender appointed to represent defendant conducted a vigorous defense. It is apparent, therefore, as in People v. Miller, that such vigorous representation by defense counsel belies a claim of ineffective assistance of counsel and that defendant was not entitled to the appointment of separate counsel.
2 It cannot be said that defendant has demonstrated an actual conflict manifested during the trial. At trial, the State introduced evidence revealing that Nichols' fingerprints were found at the home of the deceased; however, no fingerprints of defendant were found there. The State introduced the statements of defendant and Nichols, and defendant testified, maintaining that he had not killed anyone and that the statement he had given to the police was involuntary. Nichols did not testify; however, he presented an insanity defense in form of the testimony of Dr. Gilpin, a psychiatrist, Michael McDermott, a psychologist and Scotia Calhoun, a school psychologist. Defendant's attorney did not cross-examine any of these witnesses. Dr. Goldsborough, a psychiatrist at the Chester Mental Health Center, who testified for the State on rebuttal on the issue of Nichols' insanity, was cross-examined by defendant's attorney and asked whether Nichols had a tendency to project blame onto others for his actions. The doctor gave an ambiguous reply to this question.
In closing argument, attorney for defendant repeatedly argued that all of the physical evidence pointed to Nichols; that Nichols had a tendency to project blame onto others and that defendant's statement was involuntary. Nichols, in his closing argument, did not mention defendant's participation in the crime. Therefore, we conclude that an actual conflict of interest was not manifested at the trial.
Defendant also argues that Nichols' statement implicating defendant, coupled with Nichols' failure to testify, was inconsistent with and prejudicial to defendant's defense of nonparticipation and demonstrative of the conflict of interests at trial. Nichols' statement, as will be discussed subsequently, was properly admitted evidence even though it may have been prejudicial to defendant. Moreover, defendant's statement in which he admitted committing the offense was introduced at trial. Nichols' statement was corroborative of defendant's statement. As discussed above, it was clear both before and during trial that defendant was maintaining that Nichols and someone other than defendant committed the offense. This defense was in contradiction of ...