Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of McLean County,
the Hon. Luther H. Dearborn, Judge, presiding.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In a jury trial in the circuit court of McLean County defendant, William H. Nelson, was convicted of burglary and theft over $150. He was sentenced to the penitentiary for a term of seven years on the burglary count and five years on the theft count, to run concurrently. The appellate court reversed and remanded (77 Ill. App.3d 85), and we allowed the People's petition for leave to appeal. In reversing, the appellate court held that the assistant public defenders who represented defendant and a co-defendant were to be "treated as one lawyer or at least as though they were members of the same firm." (77 Ill. App.3d 85, 87.) It determined that a conflict of interest arose in the joint representation of these co-defendants and that when that conflict became obvious it was incumbent upon the circuit court to effect appointment of different counsel. The People contend that the representation of defendant and his co-defendant by two different assistant public defenders was not joint representation and that there was no actual conflict of interest. The People contend further that no assertion of a conflict of interest was made prior to trial and the circuit court was not required sua sponte to recognize that there was a possible conflict of interest and appoint other counsel for defendant.
In separate informations, defendant and a co-defendant, John Rogers, were charged with the offenses of burglary and theft over $150, and the McLean County public defender was appointed to represent them. At their joint preliminary hearing assistant defender John Schwulst represented both defendant and Rogers. Thereafter defendant was represented by assistant defender William Paul, while assistant defender Schwulst continued to represent Rogers. Prior to defendant's trial Rogers pleaded guilty to the charge of burglary; however, at that time he had not yet been sentenced.
The evidence at trial showed that in the early morning hours of August 15, 1978, Maupin's Market in Saybrook was burglarized. The owner testified that a number of cartons of cigarettes, some keys, and a quantity of change were missing from the store. Witnesses were unable to describe the perpetrators, but they testified that two persons departed the scene in a light-blue pickup truck. A short time after the occurrence an Illinois State Trooper noticed a pickup truck that was parked on a rural road and matched the description given by witnesses. The officer observed grocery sacks containing cigarettes in the rear of the truck, and, after assistance arrived, defendant and Rogers were taken into custody. When defendant was searched at the McLean County jail he was found to be in possession of keys taken from Maupin's Market and a large quantity of change.
At trial, defendant called only one witness, the co-defendant, John Rogers. The examination conducted by defense counsel consisted of the following:
"Q. Please state your name.
Q. Mr. Rogers, calling your attention to August 15, 1978, at approximately 3:00 o'clock p.m., were you involved in a burglary of Maupin's Grocery in Saybrook, Illinois?
A. I refuse to answer the questions on the ground that it may incriminate me on the Fifth Amendment.
Q. Mr. Rogers, isn't it true that you picked up William Nelson hitchhiking after you left Saybrook on that night in question?
A. I refuse to answer the question.
Q. On the Fifth Amendment?
A. On the Fifth Amendment.
Q. Mr. Rogers, isn't it true that you burglarized that super market with another person and then dropped that ...