APPEAL from the Circuit Court of Du Page County; the Hon.
HELEN C. KINNEY, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Defendant, William E. Hope, was charged by indictment with deviate sexual assault, attempt deviate sexual assault and intimidation. The offenses were alleged to have been committed upon a fellow inmate of the Du Page County jail. After a bench trial, the defendant was found guilty. On the deviate sexual assault charge, he was sentenced to the Department of Corrections for seven years.
At the trial, the complaining witness, Matthew Ehrenberg, gave the following testimony. On September 16, 1978, while he was an inmate of the Du Page County jail, the defendant, also an inmate of the jail, approached Ehrenberg's bunk bed. The defendant then made a number of statements to Ehrenberg. The defendant stated that he wanted to rape Ehrenberg and have oral sex with him, that Ehrenberg was bisexual and that people often must do things in life which they do not wish to do. According to Ehrenberg, the defendant also offered to stay with Ehrenberg to insure that Ehrenberg received all his meals and to prevent other inmates from bothering him. Ehrenberg replied that he was not bisexual, and he refused to have any relations with defendant. Defendant then stated that some of the other inmates might hurt Ehrenberg if the latter refused to cooperate. Ehrenberg testified that when this conversation occurred, the other inmates were watching television.
Ehrenberg further testified that defendant awoke him the following morning. The defendant then walked to the day room, while Ehrenberg walked toward the shower. Shortly thereafter, the defendant joined Ehrenberg and guided him into the stall. At the defendant's request, Ehrenberg removed his own uniform. Ehrenberg, who was 5 feet 9 inches tall and weighed 130 pounds, stated that out of fear he made no attempt to resist the defendant. Ehrenberg described certain sexual acts which defendant had compelled Ehrenberg to perform. At that time, a guard approached and ordered whoever was in the shower stall to come out. The defendant told Ehrenberg to remain quiet, but Ehrenberg then walked out of the stall and told the guard that someone was trying to rape him. The guard ordered the other person in the stall to come out. When the defendant emerged, he was fastening his uniform.
Ehrenberg admitted that he had made no effort to awaken the other inmates while these events were in progress. He also acknowledged having been schooled for learning disabilities and having been under psychiatric care for most of his life. Ehrenberg stated that at the time of these events, he was being held on a charge of public indecency, to which he subsequently pleaded guilty. He also acknowledged having previously been convicted of disorderly conduct for having falsely reported to police that he had been the victim of an armed robbery.
Deputy George Wick, Jr., of the Du Page County sheriff's office, testified that on September 16, 1978, during his morning rounds of the county jail, he observed the shower curtain moving in a shower stall. He ordered whoever was there to come out. Ehrenberg emerged "in a bentover position coming to an upright position." Ehrenberg had his overalls in one arm and was stepping into them as he came out of the stall. Wick testified that Ehrenberg, who appeared "a little upset," reported that someone in the stall was trying to rape him. When no one else emerged from the stall, Wick ordered Ehrenberg to pull back the shower curtain. This maneuver revealed the defendant, clad in his underwear and sitting in a crouched position. Defendant stood up and walked quickly to the day room. When Wick asked the defendant what he was doing in there, the defendant pointed to Ehrenberg and said, "Why don't you ask him?"
Approximately 45 minutes later, the defendant told Wick that Ehrenberg had been attempting to hang himself in the shower stall, and that defendant had prevented him. Wick then re-examined the shower stall and found a 12-inch strip of torn pillow case hanging from the water temperature handle. The cloth was approximately 1 inch wide. Wick had not seen this strip of cloth in the shower previously.
The State also called another inmate of the jail, Scott Archibald. Archibald testified that on the morning of September 16, 1978, he observed Matthew Ehrenberg talking to a guard. At that time, Ehrenberg was trembling, pale, crying and "real scared".
The defendant testified that when he arrived at the jail at approximately 11 a.m. on September 15, 1978, he was assigned to the tier where this incident occurred. The defendant stated that he went to sleep that evening without speaking to Ehrenberg. The next morning he was awakened by a trustee and was reading in the day room when he observed Ehrenberg tearing up a terry cloth towel. Ehrenberg fastened the pieces of toweling together, went into the shower, and closed the curtain after him. After a minute, defendant became curious and looked in the stall. He observed Ehrenberg sitting on the floor. One end of the toweling was tied to the water temperature handle; the other was tied around Ehrenberg's neck. Ehrenberg told defendant that he was tired of doing favors for the other inmates. The defendant then told Ehrenberg that he was going about things the wrong way and he should speak to one of the guards. Defendant had begun taking the toweling off Ehrenberg's neck when Deputy Wick arrived and asked who was in the shower. Ehrenberg stepped out, but defendant stayed in the stall "contemplating whether I should come out right behind him or what." When he heard Ehrenberg complain of an attempt rape, the defendant came out of the shower laughing. The defendant stated that he was laughing because he knew about Ehrenberg's mental situation. The defendant was 6 feet 2 inches tall and weighed approximately 210 pounds.
George Cuteo, also an inmate of the jail, testified that on the evening of September 15, 1978, when Ehrenberg claimed to have had his initial conversation with the defendant, the defendant had been watching television with other inmates. Cuteo stated that on the morning of September 15, he saw the defendant at breakfast, and during lunch on that day he observed the defendant lying on his bunk.
The trial court subsequently found the defendant guilty as charged and entered the sentence. This appeal followed.
On appeal, the defendant contends that his attorney at trial, Ms. Therese Rapchak of the Du Page County public defender's office, also represented the State's witness, Scott Archibald, when Archibald appeared before the grand jury which inquired into this incident. The grand jury minutes indicate that Archibald testified, but he was not a suspect in the investigation. Nonetheless, the defendant contends that this situation constituted a per se conflict of interest which denied the defendant effective assistance of counsel and thus violated his rights under the sixth and fourteenth amendments to the United States Constitution and article 1, section 8 of the Illinois Constitution.
While the defendant's attorney raised this same objection in the defendant's post-trial motion, prior to and during the trial, neither she nor the defendant made objections to her continued representation of the defendant. The record does disclose that just prior to the commencement of the trial in this case, the trial court stated that a possible conflict of interest may have arisen. Prior to this statement on the record, the fact that Ms. Rapchak had advised Archibald had apparently been discussed off the record. On the morning of the trial, the trial court stated on the record:
"[THE COURT:] And I hope the record is sufficiently clear that Miss Rapchak did not represent a State's witness on ...