APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN COVEY, Judge, presiding.
MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
The defendant, Ivory Johnson, appeals from his conviction for burglary following a jury trial in the Circuit Court of Peoria County. He was sentenced to five years' imprisonment to be served consecutively with the sentence in case No. 78-CF-1363, for which the defendant was serving parole at the time of the instant offense.
The defendant advances four issues for review: (1) whether the circuit court erred in failing to advise the defendant of his rights concerning counsel's purported conflict of interest that arose as a result of the defendant's specific allegations of ineffective assistance of counsel; (2) whether defense counsel ineffectively represented the defendant when counsel failed to move to exclude evidence of the defendant's prior burglary conviction that the State introduced for impeachment; (3) whether the circuit court erred in not instructing the jury on the definition of theft and, thus, denied the defendant his rights to due process of law and a fair jury trial; and (4) whether the cause must be remanded for resentencing because the circuit court failed to specifically articulate its reasons for imposing a consecutive sentence.
The evidence tended to show that on July 26, 1980, at approximately 5 a.m., the defendant entered the dwelling of Kent and Lynn Folkerts, without their authority, and removed a jewelry box from their bedroom. Kent Folkerts noticed the defendant leaving the bedroom and ordered him to drop the box and get out of his house. The defendant gave the box to Folkerts and left the house. The defense argued that because of the defendant's state of intoxication, he was unable to form the requisite mens rea element for the offense of burglary.
At the conclusion of the State's case in chief, the defendant submitted a "petition for a fair trial" to the circuit court. The petition, signed by the defendant and 23 other prisoners in the Peoria county jail, alleged that because of defense counsel's ineptitude, the defendant would be denied a fair trial. Specifically, the petition charged (1) that defense counsel spent less than 30 minutes with the defendant preparing his defense and (2) that he badgered a defense witness, Angie Booker, in an effort to discourage her testimony in the defendant's behalf. The defendant's attorney, the public defender, responded to the charges, stating he had interviewed the defendant at the Peoria county jail, had taken copious notes of the conversation, and had discussed the case with him on at least two other occasions. Second, counsel admitted that he subjected Booker to "stiff questioning" to prepare for the rigors of the State's cross-examination and not to discourage her from testifying. In fact, Booker did testify in the defendant's case in chief. In considering the petition, the court declared that in light of the straightforward and "very simple" evidence, a substantial amount of investigation by defense counsel was unnecessary, and rigorous questioning of defense witnesses prepared the witnesses for cross-examination and thus served the defendant's best interests. Accordingly, the court denied the petition.
The defendant contends that the circuit court's response to the petition was insufficient. The defendant submits that when he attacked the adequacy of defense counsel's representation, a conflict of interest arose. The petition created a hostility of interests by forcing counsel to argue his own incompetence and thus, in effect, pitted counsel against himself. According to the defendant, the circuit court should have advised the defendant of the conflict of interest so as to allow the defendant to knowingly and intelligently waive the conflict or to eliminate it by withdrawal of counsel. This failure allegedly deprived the defendant of effective assistance of counsel.
• 1 In order to successfully establish incompetence of counsel, a defendant must demonstrate actual incompetence, as manifested in the performance of his or her duties as trial attorney, which resulted in substantial prejudice to the defendant without which the outcome would probably have been different. (People v. Greer (1980), 79 Ill.2d 103, 402 N.E.2d 203.) The degree of competency must be of such a low caliber to reduce the proceeding to a farce and amount to virtually no representation. (People v. Stanley (1972), 50 Ill.2d 320, 278 N.E.2d 792.) Accordingly, the alleged incompetency must be founded on more than the client's disagreement with counsel's choice of trial tactics or judgment. (People v. Newell (1971), 48 Ill.2d 382, 268 N.E.2d 17.) Likewise, substantial prejudice must be shown by more than mere speculation or conjecture on the outcome of the trial had the representation been more to the defendant's liking. (People v. Hills (1980), 78 Ill.2d 500, 401 N.E.2d 523.) Here, the defendant's unsubstantiated allegations pertain to nothing more than matters going to the exercise of counsel's trial judgment and discretion and are insufficient to establish incompetency of counsel. (People v. Skorusa (1973), 55 Ill.2d 577, 304 N.E.2d 630; People v. Dean (1964), 31 Ill.2d 214, 201 N.E.2d 405.) In fact, defense counsel rebutted the first allegation that he spent an insufficient amount of time with the defendant in order to prepare his defense. As for the allegation that counsel badgered a defense witness, we competely disagree with the defendant's characterization. An experienced trial counsel often subjects potential witnesses to vigorous questioning to prepare them for the State's cross-examination. Obviously, no incompetence occurred because the witness did testify and the defendant does not point to any potentially favorable testimony which his trial counsel failed to adduce.
In the case at bar, however, the defendant attempts to circumvent this standard by alleging ineffective assistance of counsel in a conflict of interest context. Relying upon our recent decision of People v. Fields (1980), 88 Ill. App.3d 821, 410 N.E.2d 1178, the defendant advances the argument that where a defendant merely propounds specific allegations of defense counsel's incompetence and counsel rebuts the charges, a per se conflict of interest arises. (See, e.g., People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441.) We disagree with the defendant's contention.
The Illinois Supreme Court has recognized that a conflict of interest may arise from a defendant's allegations of incompetence. (People v. Smith (1967), 37 Ill.2d 622, 230 N.E.2d 169.) In Smith, the alleged conflict occurred at a post-conviction hearing, but the conflict may arise at a post-trial hearing (People v. Norris (1977), 46 Ill. App.3d 536, 361 N.E.2d 105), or even during trial.
• 2 However, we do not believe that the supreme court intended Smith and its progeny to be wielded about as a talisman to find a conflict of interest whenever a defendant makes specific allegations of incompetence thus calling upon counsel to argue his own ineffectiveness. This is especially the case where the allegations of incompetence are so blatantly spurious as in the case at bar. We see no reason for granting relief to a defendant complaining of a conflict of interest based upon incompetence of counsel where the alleged incompetence constituted nothing more than a disagreement between counsel and the defendant on the choice of trial tactics. Moreover, by refusing to recognize a conflict of interest in such situations, we will reduce the petty disputes concerning the smallest differences of opinion and promote cooperation between counsel and client without endangering the defendant's rights to competent and effective assistance of counsel. (People v. Gardner (1977), 47 Ill. App.3d 529, 362 N.E.2d 14.) Whether counsel is called upon to argue his own ineffectiveness (People v. Fields (1980), 88 Ill. App.3d 821, 410 N.E.2d 1178) is not determinative of a conflict of interest based upon defense counsel's incompetence. Instead, the underlying allegation of incompetence determines whether an actual conflict of interest exists. Thus, we hold that where specific allegations of incompetence consist of disputes over trial tactics and are presented during trial, no conflict of interest arises. See also People v. Gustafson (1979), 75 Ill. App.3d 497, 393 N.E.2d 1315.
The second contention raised by the defendant is whether he was denied effective assistance of counsel when the public defender failed (1) to move to exclude evidence of the defendant's prior conviction for burglary and (2) to request an instruction informing the jury that the convictions may be used only for impeaching the defendant's credibility.
The defendant, testifying in his own defense, stated on direct examination that he had been convicted of theft on January 18 and August 20, 1978, and of burglary on October 23, 1978. On the State's rebuttal, the jury was again informed of these three prior convictions. Defense counsel also failed to request an instruction on the limited use of the convictions (see IPI Criminal No. 3.13), although the court did orally admonish the jury of this fact when the evidence was first admitted.
• 3 To successfully establish ineffective assistance of counsel, the defendant must demonstrate actual incompetence which substantially prejudiced the defendant. (People v. Goerger (1972), 52 Ill.2d 403, 288 N.E.2d 416.) Accordingly, where counsel could have acted but he or she concluded such action would have been futile, no ineffective assistance of counsel results because the outcome would have remained unchanged. (People v. Elliott (1977), 46 Ill. App.3d 887, 361 N.E.2d 852.) In the case at bar, therefore, the defendant must demonstrate that a motion in limine to exclude the evidence of the burglary conviction would have been successful and that the limiting instruction would have changed the outcome of the trial.
In the case of People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, the Illinois Supreme Court, per Justice Schaefer, adopted then proposed Rule 609 of the Federal Rules of Evidence. That rule admits evidence of prior convictions for impeachment if the convictions were felony types or veracity related and unless, in either case, the convictions's probative value was substantially exceeded by its prejudicial effect. The Montgomery court set forth the following four-part test to determine whether the probative value for impeachment was substantially outweighed by prejudice to the defendant: (1) whether the crime was veracity related; (2) the proximity of the prior conviction to the instant offense; (3) subsequent history of the defendant as it reflects the extent of his rehabilitation; and (4) the similarity between the past conviction and the instant offense. Using the Montgomery standard, the defendant argues that had defense counsel moved in limine to exclude the evidence of ...