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UNITED STATES EX REL. WILLIAMS v. FRANZEN

November 3, 1981

UNITED STATES EX REL. OTIS WILLIAMS, AND A.D. CLARK, PETITIONERS,
v.
GAYLE M. FRANZEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Marshall, District Judge.

Petitioners, Otis Williams and A.D. Clark, proceeding pro se, seek habeas corpus relief from an Illinois criminal conviction, pursuant to 28 U.S.C. § 2254 (1976). Respondent, the Illinois Director of Corrections, has answered the petition and moved for summary judgment pursuant to Rule 56, Fed.R.Civ.Pro. Petitioners have responded with a cross motion for summary judgment. The motions have been briefed and are ready for decision.

I.

Petitioners were tried and convicted by a jury in Kankakee County Illinois of burglarizing the P & E Market. The trial judge sentenced them to terms of five to twenty years imprisonment. Petitioners' convictions were affirmed on appeal. People v. Clark, 42 Ill. App.3d 472, 355 N.E.2d 619 (1976). Petitioners assert two grounds for relief in the present action: that their trial counsel was laboring under a conflict of interest which rendered his assistance ineffective in violation of their Sixth Amendment rights, and that the trial court erred in giving Illinois Pattern Instruction 13.21.

The facts of the case and evidence presented at trial are reviewed in the Illinois Appellate Court decision, 355 N.E.2d at 620-21, and need not be repeated here in detail. Petitioners were tried with a third defendant, E.J. Clark ("E.J."), who is not a party to this action. A single court appointed attorney represented all three defendants at trial and a second court appointed counsel represented all three on appeal. The case against the three defendants consisted of testimony placing them in a car filled with meat taken from the market shortly after the burglary took place, the fingerprint identification of Otis Williams and testimony of the police chief that he saw a large quantity of meat at the home of A.D. Clark ("A.D."). The prosecution also introduced Williams prior judicial admission which had been given in a related criminal proceeding.*fn1

The petitioners did not testify at trial and their attorney presented no evidence in their behalf. Counsel did, however, put codefendant E.J. Clark on the stand. E.J. claimed that he was not present at the burglary and only became involved after the fact. The substance of his testimony was that he was walking home from a friend's house and was picked up by petitioners Williams and A.D. Clark (E.J.'s brother) and that "[o]nce inside the car he noticed it was full of meat." 355 N.E.2d at 621.*fn2 There was, of course, no cross-examination or impeachment on behalf of petitioners since it was their counsel who elicited the testimony from E.J. on direct examination.

On appeal, all three defendants complained that the jury instruction, IPI 13.21, cited above was prejudicial and E.J. and A.D. Clark raised separate claims based on ineffective assistance of counsel .*fn3 The Appellate Court reversed as to E.J. Clark, holding that the conflict between his defense and that of his co-defendants rendered their joint representation constitutionally inadequate,*fn4 but affirmed as to Williams and A.D. Clark. The court rejected the jury instruction claim as to all of the defendants, holding the instruction was not properly objected to at trial or during post trial motions and was therefore waived. Id. at 623.

In deciding the ineffectiveness of counsel claim, the Illinois court relied on the standard set out in People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810 (1954), that in order to establish a constitutional violation a defendant must show "(1) actual incompetence of counsel, as reflected by the manner of carrying out his duties at trial, and (2) substantial prejudice resulting, without which the outcome probably would have been different." 355 N.E.2d at 621. The court rejected the argument advanced on behalf of A.D. Clark that joint representation with a defendant who placed him leaving the scene of the crime with the stolen goods in hand created a Sixth Amendment problem. The court stated:

  As to A.D. Clark, however, while he was prejudiced
  by the testimony of E.J. Clark, that the station
  wagon was full of meat when Williams picked E.J.
  Clark up, it was doubtful, on the basis of the
  record, that without such testimony the outcome as
  to A.D. Clark could have been any different.
  When all the evidence is reviewed on this issue,
  it is doubtful whether the admittedly prejudicial
  testimony of E.J. Clark was sufficiently
  prejudicial that it could be said that the outcome
  would have been different. We, therefore,
  conclude, as to A.D. Clark, that no sufficient
  prejudice is shown.

Id. at 623.

II.

Petitioners claim that joint representation of all three defendants by a single attorney denied them their Sixth Amendment right to effective assistance of counsel. The problems which attend the multiple representation of criminal defendants have received considerable attention from the Supreme Court. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Every criminal defendant has the right to the effective assistance of counsel. The "mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters." Holloway v. Arkansas, supra 435 U.S. at 490, 98 S.Ct. at 1181. It is clear, however, that multiple representation is not a per se Sixth Amendment violation. The Court has recognized that "joint representation [may be] a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack." Glasser v. United States, supra 315 U.S. at 92, 62 S.Ct. at 475 (Frankfurter, J. dissenting) quoted in Holloway, supra 435 U.S. at 482-83, 98 S.Ct. at 1177. Where, as in this case, defense counsel does not assert conflicting interests as a basis for severance or the appointment of separate counsel, the court is under no obligation to conduct a sua sponte inquiry into potential conflicts which might not present themselves at trial. Cuyler, supra; United States v. Mandell, 525 F.2d 671 (7th Cir. 1975), cert. denied 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637 (1976). The Supreme Court in Cuyler followed the rationale advanced by this and other circuits that the primary responsibility for recognizing and eliminating conflicts of interests rests with the defense counsel and not the trial court.*fn5

Neither, however, does trial counsel's failure to seek a severance or separate counsel preclude petitioners from asserting their Sixth Amendment claim on appeal or collateral review. Rather, the consequence of counsel's failure to recognize an impermissible conflict prior to trial is to increase a petitioner's burden in establishing an ineffectiveness claim in a collateral proceeding. While the mere assertion of a conflict at trial, followed by failure of the trial court to grant separate counsel, might require reversal, see Holloway, supra 435 U.S. at 485-87, 98 S.Ct. at 1179-1180, absent a trial objection the petitioner must establish an "actual conflict of interest adversely affecting his lawyer's performance." Cuyler, supra 100 S.Ct. at 1718. A mere potential conflict, which may not have surfaced at trial, is insufficient. Id. See also, United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir. 1975); United States v. Mandell, supra; United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert. denied 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976). It is part of the defendant's burden on appeal or collateral review to identify with a reasonable degree of specificity the source and nature of the conflict. Mandell, supra at 677-78.

In the case at bar, petitioners have met their burden. As indicated earlier, petitioner's co-defendant, E.J. Clark, represented by common counsel, testified on direct examination that he came upon petitioners shortly after the burglary had taken place riding in a car carrying goods stolen from the market. In any case where two or more defendants have inconsistent stories relating to the crime charged, joint representation is impermissible. See Turnquest v. Wainwright, 651 F.2d 331 (5th Cir. 1981). This is particularly true where one of the defendants is prevented by counsel from taking the stand because of possible prejudice to a co-defendant, or counsel is precluded from ...


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