APPEAL from the Circuit Court of Fulton County; the Hon.
CHARLES WILHELM, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The defendant, Richard Bainter, was convicted of theft of property having a value in excess of $150 following a jury trial in the circuit court of Fulton County. On appeal, he raises the following issues: (1) whether his attorney labored under a per se conflict of interest where defense counsel had previously represented the State's chief witness in a prosecution for the same offense; (2) whether the defendant effectively waived any such conflict; (3) whether the allegedly improper comments by the prosecutor during closing argument denied the defendant a fair trial; and (4) whether the trial court committed reversible error in allowing the prosecutor to elicit testimony during direct examination from State's witness John Ramey regarding Ramey's conviction of burglary for his participation in the offense with which the defendant was charged, and whether the prosecutor enhanced this alleged error during closing argument by suggesting that the jurors could consider Ramey's guilty plea in their deliberations on the defendant's guilt or innocence.
A resolution of these issues requires only a brief summation of the factual basis for the defendant's conviction. On the morning of November 21, 1980, the defendant went hunting with two friends, Jon Stone and John Ramey. As the three friends were riding in Stone's automobile, the conversation turned to the subject of a young man named Timothy Peters, and the fact that he had some furs. Eventually, the three friends decided to steal the furs. They removed the furs from a freezer located in the Peters' garage after Ramey pried open the freezer with a screwdriver. Whether the defendant entered the garage to assist with the removal of the furs was a question open to dispute at trial.
Following a removal of the furs from the garage, the three young men took the furs to the defendant's house and counted them. Later that evening, the furs were taken to the Perardi Fur Company in Farmington, Illinois. All of the furs were sold, with the exception of one fox fur, for a total price of $206. The defendant received one-third of the money. The fox fur, which was not sold, was later returned to Timothy Peters by the defendant, who put the fur in Peters' truck while the truck was parked at the high school.
The defendant's retained attorney at trial was William C. Davis. Attorney Davis had previously represented John Ramey, the State's chief witness at the defendant's trial, when Ramey pleaded guilty to a charge of burglary arising from the same incident as that giving rise to the defendant's conviction.
The defendant contends that this dual representation created a per se conflict of interest for his attorney and thus deprived him of his constitutional right to the effective assistance of counsel. He further contends that he did not effect a knowing and intelligent waiver of this alleged conflict of interest.
• 1 Preliminarily, we note that the defendant failed to include the conflict of interest issue in his post-trial motion. This omission does not prevent the defendant from raising the issue on appeal, since there was no post-trial review by an independent attorney and defendant's trial counsel could hardly have been expected to include the issue in a post-trial motion since it is clear that he thought no conflict existed. People v. Arreguin (1981), 92 Ill. App.3d 899, 416 N.E.2d 402; People v. Mathes (1979), 69 Ill. App.3d 275, 387 N.E.2d 39.
Following a careful review of the colloquy which occurred immediately prior to jury selection between the defendant and the trial judge concerning the possibility of a conflict of interest on the part of the defendant's counsel, we determine that the defendant knowingly waived any potential conflict. We make this determination without reaching the merits of the conflict issue and, therefore, withhold judgment on the question of whether a per se conflict or an actual conflict of interest existed.
• 2 An accused has the unquestioned privilege to waive his right to counsel free from conflicting interests. (People v. Johnson (1979), 75 Ill.2d 180, 387 N.E.2d 688; People v. Friedrich (1960), 20 Ill.2d 240, 169 N.E.2d 752.) The following discussion represents a proper and unequivocal exercise of that privilege by the defendant in this case:
"BY THE COURT: * * * Mr. Bainter, did you know that Mr. Davis [the defendant's retained counsel] represented Mr. Ramey [the People's witness]?
BY MR. BAINTER: Yes, sir.
BY THE COURT: And you understand he, of course, is now representing you?
BY MR. BAINTER: Yes, sir.
BY THE COURT: Do you have any problem with the fact that if Mr. Ramey testifies here and Mr. Davis has previously represented him that there could be some conflict of interest present by reason of that fact?
BY THE COURT: There is, Mr. Bainter, the possibility that, and I'm speaking in terms of mere possibility. [Sic.] There is always the concern of the court and the reviewing court that because of some prior representation of a co-defendant here that there may be that subconscious element creep into, for example, the cross examination of Mr. Ramey by your attorney where he might not be as thorough as he ...