APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Scott, appeals from the denial of his petition for post-conviction relief in the circuit court of St. Clair County.
Defendant was charged with the murder of Delbert Tucker and was convicted after a jury trial in the St. Clair County circuit court. He was sentenced to imprisonment for a term of 14 to 16 years. Defendant perfected an appeal from his conviction and raised the following issues: (1) whether the conviction for murder should be reduced to involuntary manslaughter, and (2) whether defendant was denied his right to a fair trial by prejudicial prosecutorial comment during closing argument. The issue of incompetence of trial counsel was not raised by appellate counsel. Defendant's conviction was affirmed by this court in an unpublished order filed January 3, 1977.
On April 21, 1978, defendant filed a pro se petition for post conviction relief, which was later amended after counsel was appointed to represent him in the post-conviction proceedings. The petition, as amended, alleged that he had been denied effective assistance of counsel at his trial due to the incompetence of his retained trial counsel. Defendant alleged that trial counsel was incompetent on the grounds that counsel failed to interview the prosecution witnesses; that he failed to interview a potential defense witness; that counsel was not licensed to practice in Illinois; that local counsel was under indictment at the time of trial; that counsel had little contact with defendant; and that counsel failed to request a mistrial at two points during the trial.
A hearing on the petition for post-conviction relief was held on January 26, 1979, and the trial court denied the petition, stating:
"In the opinion of the Court, the defendant's counsel was not of the high quality usually found in the courts> of St. Clair County, however, in applying the Supreme Court Guidelines, we find that representation was not of such a low caliber as to amount to no representation at all, nor did it reduce the courts> proceedings to a farce or a sham. The burden of sustaining the charge of inadequacy of counsel rests upon the defendant, and the defendant has failed to sustain his burden. Post Conviction petition is denied."
The record indicates that defendant was represented at trial by retained counsel and on his direct appeal by the State Appellate Defender's office. Further, counsel was appointed by the trial court to represent defendant on his petition for post-conviction relief, and private appellate counsel has been appointed to represent defendant on this appeal.
On appeal defendant contends that he was denied effective assistance of counsel at his original trial, alleging for the first time that trial counsel failed to impeach the prosecution's only eyewitness, Valerie Tucker, based on a prior inconsistent statement she had made to the police. He further contends that this issue was not raised previously due to ineffective assistance of both the counsel who represented him on the original appeal and the counsel appointed to represent him on the post-conviction proceedings in the trial court.
Defendant argues that the failure of trial counsel to impeach the prosecution's eyewitness, Valerie Tucker, on the basis of a prior statement made to the police amounted to incompetency of counsel. In her statement to the police made shortly after the shooting occurred, Ms. Tucker stated that her brother, Delbert Tucker, and defendant, who was her boyfriend, became involved in an argument at her apartment. She stated that Delbert grabbed defendant and went outside to talk to him and that when she went outside to talk to defendant, she saw defendant and Delbert struggling, heard a shot fired, then turned and ran back inside. At trial, Ms. Tucker testified that she had run outside after defendant had pulled a gun on Delbert in her apartment during the course of an argument. She testified that she thought her brother had come outside after she did. She further stated that she saw her brother and defendant standing and talking at the foot of the porch stairs and that defendant was holding a gun in the air with one hand and pushing Delbert in the forehead with the other hand. Ms. Tucker related at trial that Delbert had his hands at his sides and that she did not see him struggle with defendant. She then testified that she heard a shot, saw Delbert fall and then ran to her cousin's house.
Defendant testified that he had drawn a gun when he and Delbert had an argument inside the apartment. He further testified that after he drew the gun, Ms. Tucker ran outside and both he and Delbert went outside after her. Defendant stated that he and Delbert struggled as they went outside and that when they were outside, Delbert grabbed for the gun and it went off accidentally.
Defendant contends that Ms. Tucker's statement to the police corroborates his testimony that the shooting was accidental and argues that the failure to cross-examine Ms. Tucker regarding her prior statement could have resulted only from trial counsel's failure to familiarize himself with the case. Defendant further states that had counsel cross-examined Ms. Tucker on this matter, a verdict of involuntary manslaughter would likely have resulted. Defendant concludes that as a consequence, he was denied effective assistance of counsel on trial and that because of their failure to raise this issue in the post-trial proceedings, counsel appointed to represent him on his first appeal and on his petition for post-conviction relief were also incompetent. Thus, the instant appeal involves alleged ineffective assistance of both retained and appointed counsel.
A defendant's right to competent counsel is well recognized. As stated by the court in People v. Murphy (1978), 72 Ill.2d 421, 435, 381 N.E.2d 677, 684-85: "[d]efendant is entitled to assistance of counsel under both the United States Constitution (Gideon v. Wainwright (1963), 372 U.S. 335, 342, 9 L.Ed.2d 799, 804, 83 S.Ct. 792, 795; U.S. Const., amends. VI, XIV) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 8). Counsel, however, can be so incompetent as to undermine that right and to deprive the defendant of his due process right to a fair trial. [Citations.]" Further, our supreme court has established standards requiring a distinction to be drawn between the tests to be applied for determining the competency of retained counsel and appointed counsel and historically has held appointed counsel to a higher standard of conduct than retained counsel. The standard established by the court to be applied to retained counsel requires a determination of whether the representation was of such a low caliber as to amount to no representation at all or was such as to reduce the court proceedings to a farce or sham. (People v. Murphy.) As to appointed counsel, the court has stated that defendant is entitled to a new trial "if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different." People v. Greer (1980), 79 Ill.2d 103, 120-21, 402 N.E.2d 203, 211.
Murphy and Greer represent the latest decisions of the Illinois Supreme Court on the subject of reversal of criminal trials based on alleged incompetency of counsel. Recently, however, the United States Supreme Court, in considering an allegation of incompetency of retained counsel based on a conflict of interest, has held that it saw no basis for drawing any distinction between retained or appointed counsel. Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L.Ed.2d 333, 100 S.Ct. 1708.
The trial court in the case at bar was required to determine the competency of retained trial counsel and expressly applied the standard announced in Murphy. Although such standard was correct at the time, the court's determination was made before ...