APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
CAWLEY, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 26, 1980.
At the conclusion of a jury trial in the circuit court of Cook County, defendant, James Meredith, was convicted of two counts of murder. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(1).) Defendant was sentenced to concurrent prison terms of 20 to 60 years.
On appeal, defendant contends: (1) plain error (Ill. Rev. Stat. 1975, ch. 110A, par. 615) occurred when, during closing argument, the prosecutor commented upon and urged an inference of guilt from the exercise of his sixth amendment (U.S. Const., amend. VI) right to assistance of counsel; (2) he was denied his sixth amendment (U.S. Const., amend. VI) right to effective assistance of counsel by his attorney concealing a conflict of interest from him; and (3) reversible error occurred when a police officer's testimony, which explained the circumstances of defendant's arrest, included hearsay identifications of defendant.
We reverse and remand for new trial.
Prior to trial, an appearance was filed on defendant's behalf by attorney Dean Wolfson. During the trial and the sentencing hearing, defendant was represented by attorney Sheldon Banks. Upon completion of jury selection, defendant's attorney renewed his discovery request seeking a copy of the criminal record of Larry Ketelsen, the State's principal witness. Defense counsel told the court he did not know of any convictions against the witness, but he did know the witness had been arrested.
The assistant State's Attorney argued he had not been given any reason to suspect that the witness had a prior criminal record and, as a matter of practice, not every witness' criminal record was checked. In a discussion off the record, the witness was questioned about his alleged criminal record. The State informed the court and counsel for defendant that the witness stated he had no felony convictions.
The State also reported to the court and counsel for defendant that the witness previously had been represented by defense attorney Sheldon Banks' law firm, and thus no further discovery was warranted. The State requested that defense counsel Banks indicate on the record that no potential conflict of interest existed in his representation of defendant in the instant case. The record discloses, however, that this request was ignored by defense counsel and the court.
After opening statements, the State's first witness, Larry Ketelsen, testified that at approximately 6 p.m. on March 11, 1976, he was sitting at the rear of the bar in the Irish Pub with Bobbie Sledge and James Pinkston, the victims of the later shooting. Between 5:45 p.m. and 6:15 p.m., Ketelsen saw defendant enter the Pub with four or five people who took seats near the middle section of the bar. Defendant went behind the bar, counted the money in the cash register, and then walked towards the rear of the bar. At that point, an argument ensued between defendant and Sledge concerning money allegedly owed to Sledge. Defendant proceeded to throw beer bottles across the bar, hitting Sledge in the chest. Sledge's girlfriend, Lee Brosset, who was sitting nearby then ran into the washroom while Sledge and Pinkston backed away from the bar approximately six feet. Ketelsen further testified that he saw defendant then walk to the middle of the bar and remove a pistol from a money bag which one of defendant's companions shoved towards him. Returning to the rear of the bar, defendant then shot Sledge three times and Pinkston twice. Immediately after the shooting, defendant and his companions left the Pub through the front door. Later in the trial, it was established that Sledge and Pinkston were dead on arrival at Illinois Masonic Hospital.
Ketelsen made an in-court identification of defendant as the man who shot Pinkston and Sledge in the Irish Pub. He also asserted he had known defendant for approximately three months prior to the shooting. Ketelsen also stated he had worked for defendant as a bartender.
On cross-examination, Ketelsen acknowledged he had known Sledge and Pinkston for six or seven years and considered them friends. Ketelsen admitted he previously had given the police a written statement which described one of defendant's friends handing a gun to defendant.
Lee Brosset testified as a State's witness. She said she saw defendant throw glasses and bottles at the victims. Brosset ran into the washroom and, while there, she heard a series of shots. She did not see who fired the shots. When she came out of the washroom she saw that defendant was no longer in the Pub. Brosset also stated defendant was not tending bar on the night of the incident.
Madeline Crowe was present in the Pub on the night of the shooting. She claimed she could not identify the person who shot Sledge and Pinkston. Crowe heard glasses breaking and saw a man, who was standing behind the bar, point a gun at another man sitting at the bar. She did not hear any argument or gunshots, but saw a man at the bar fall over. The gunman shot the gun at another man who also fell to the floor. She then saw the man who did the shooting and his companions run out of the Pub.
Officer John Toenings, called by the State, described the circumstances surrounding defendant's arrest. He was on duty as a homicide investigator for the Chicago police department when defendant entered police headquarters with his attorney, Wolfson. Toenings then arrested defendant and at that time advised him of his constitutional rights.
Officer Ted Janus testified he interviewed Madeline Crowe, Crowe's two daughters, Larry Ketelsen, Karen Filarsee, and the barmaid on duty, all of whom had been present in the Pub at the time of the shooting. Janus further stated that after completing the interviews with these people:
"[Janus]: We broadcasted a general description of the wanted offender in the case, Mr. Meredith, city-wide over the entire City of Chicago, and also notified the police authorities in I believe it was Lafayette, Tennessee, where we understood that Mr. Meredith may have went to.
[Defense Attorney]: Objection. Ask it be stricken and the jury told to disregard it.
[Assistant States Attorney]: I ask the Court to specify what portion of the answer is being stricken.
[The Court]: Everything after `Lafayette' is stricken after `Lafayette, Tennessee'."
Defendant testified in his own behalf. He was the manager of the Pub and had authority to collect money. On March 11, 1976, at approximately 5 p.m., he entered the Pub and walked behind the bar to help the bartender since the tavern was crowded with 30 to 35 people. About 15 minutes later Pinkston and Sledge entered the Pub and walked to the rear of the bar. Later in the evening, Pinkston and Sledge got into a loud argument and defendant went to the end of the bar and asked them to "hold it down." Defendant then recognized two customers standing at the center of the bar and he approached them to take their order. As he did so he heard glass being broken and shots being fired. Without looking to see what was happening, defendant dropped the bottle he was holding, jumped over the bar and, with many of the other customers, he ran out of the Pub. He did not return to the Pub that night nor did he call the police.
Defendant further testified that the next morning, he went to another tavern where he learned that as the result of the shooting incident at the Irish Pub the evening before, two men had been killed there. He then telephoned his attorney but was unable to reach him. Later that day, after speaking with his attorney, defendant, accompanied by his attorney, surrendered to the police. On cross-examination, the defendant testified in part:
"[Assistant State's Attorney]: When did you find out you were wanted for those
[Defendant]: The afternoon that my attorney turned me in is when I found out I was wanted for murders.
[Assistant State's Attorney]: You told the ladies and gentlemen that you called your lawyer that morning and he was in court.
[Assistant State's Attorney]: So, would you tell the ladies and gentlemen of the jury why you called your lawyer before you knew that you were wanted for murder?
[Defendant]: They didn't tell me I was wanted for murder. They said I was wanted. I didn't know I was in regards to the question of it or the murder."
William Keen and James Wiginston, friends of defendant, both testified for the defense. Their testimony was substantially the same. Together, they entered the Pub which was crowded with about 40 people. When the argument between Pinkston and Sledge started, and as the shots were fired at the rear of the bar, they were standing near the middle of the bar, facing defendant, who was beginning to pour them a drink. When the shots were fired, defendant had a bottle in his hand, not a weapon. Keen and Wiginston along with other customers ran out of the bar immediately after the shots were fired. They did not see who did the shooting. On cross-examination, both Keen and Wiginston testified that when they learned that defendant had been arrested they did not contact the police or the State's Attorney to disclose what they saw occur at the Pub.
Officer Ted Janus was also called as a defense witness. He testified that Crowe told him she heard glasses breaking. She also told him she saw that two men had been shot, although she never saw a gun or heard any shots.
In rebuttal for the State, Brosset testified she saw defendant in the bar on the evening of the incident but she did not see him working behind the bar. Jeanne Downs, a bartender employed by the Pub, stated she was tending bar on the evening of the shooting. She could not recall defendant assisting her in her work. When Downs heard the shots, she hid behind a cooler at the other end of the bar and did not observe where defendant was standing at the time of the occurrence.
During closing argument, the prosecutor reviewed the testimony of the witnesses. He summarized certain testimony of defendant as follows:
"* * * Mr. Meredith testified that he was running the bar what did he do?
He said that he jumped over the kooler [sic] then he jumped over the bar and ...