Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Robert J. Steigmann, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1982.
Defendant, Bernice Lewis, was convicted in a jury trial in the Champaign County circuit court of murder, armed robbery and aggravated kidnaping in connection with the December 14, 1978, robbery of the Citizens National Bank in Decatur and the death of Donald Bivens, Sr., a bank security guard. The appellate court (90 Ill. App.3d 220) reversed, holding that defendant had been deprived of effective assistance of counsel, and ordered a new trial.
Defendant, a resident of Des Moines, Iowa, was indicted with her brother, Cornelius Lewis, who had allegedly fired the shot that killed decedent. At defendant's arraignment on March 1, 1979, it was determined that she was indigent and Scott Diamond, the Macon County public defender, was appointed to represent her. Attorney Diamond was also appointed to represent Willie Sangster, who had been separately charged with the same crimes. On March 2, 1979, the lawyer filed a petition for instructions as to whether he should continue to represent defendant. The petition indicated that the attorney had known decedent due to the latter's prior position as an assistant probation officer and had attended decedent's funeral. The petition stated in part:
"That the Petitioner does not feel that the fact that he did know Mr. Bivens would have any effect on giving the Defendant a vigorous defense, however, Defendant claims that due to my relationship with Mr. Bivens, she feels that I cannot fairly defend her."
A similar petition was filed with respect to Sangster. On March 9, 1979, a hearing was held to consider whether attorney Diamond should continue to represent defendant and Sangster. The attorney testified:
"The victim of the alleged murder was Donald Bivens, Sr. Donald Bivens, Sr. had formerly been assistant probation officer in Macon County and for approximately six years I have been Public Defender of Macon County. For six years I did have a working relationship with Mr. Bivens, although I did not ever visit him in his home. My relationship was basically at work and I did consider him a friend. The defendants have raised the issue whether or not they feel I could do a fair job for them due to my relationship with Mr. Bivens. It is true I did attend his funeral, but I personally feel if appointed, I would do my job and I would intend to perform my duty. As they have raised the issue, I feel I must bring the issue before the Court. For this reason, I am asking the Court for instructions whether or not I should proceed with the cases."
Sangster was asked his position with respect to representation by attorney Diamond and replied:
"My position on that, Your Honor, is that I feel totally uncomfortable with him representing me because of the fact that we have had various conversations on this subject and I personally feel and I hope that the Court, I beg the Court to agree with me that this man's relationship with the person that was killed in the bank robbery was such that it would be utterly impossible for him to give me, to defend me with the enthusiasm that is necessary for me to get everything out of the law that I should get. I just don't feel that he can give that to me and I am sorry to say that my being black and the victim being white, unfortunately due to the conditions of our society, it is going to influence him. I do believe and I feel totally uncomfortable and I beg the Court to relieve him from my case."
Then the following exchange between the judge and defendant Bernice Lewis occurred:
"THE COURT: You have heard the statement made by the Public Defender, Mr. Diamond. You have heard the statement under oath made by Mr. Sangster, is this not correct?
THE COURT: What is your position with respect to the petition that Mr. Diamond has filed?
A. I would like to have him represent me if he would.
MR. DIAMOND: I will be willing to represent the lady. It has been raised. I want to make sure it is on the record so there is no question about it.
THE COURT: Do you have any further ...