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People v. Gardner

OPINION FILED FEBRUARY 2, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARK GARDNER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Williamson County; the Hon. WILLIAM A. LEWIS, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the Circuit Court of Williamson County, the defendant was convicted of burglary and theft. He was sentenced to a maximum extended term of 14 years' imprisonment for burglary and two years for theft, the sentences to run concurrently. An appeal of both convictions and sentences has been perfected to this court, where the defendant presents the following arguments: (1) this court should not have allowed him to be represented by the office of the State Appellate Defender, which also represented a co-defendant in his appeal; (2) he was denied his statutory right to a speedy trial; (3) the trial court should have suppressed certain physical evidence which was admitted at trial; (4) the trial court erred in excluding a letter written by a co-defendant to his wife; (5) he was improperly cross-examined at trial about certain prior convictions; and (6) several errors were committed at his sentencing hearing. Although the defendant does not challenge the sufficiency of the evidence upon which he was convicted, a brief statement of that evidence is necessary to the extent that it illuminates the issues argued.

Between 10 p.m. on June 21, 1979, and 4 a.m. the following day several items, including guns, ammunition and stereo equipment were taken from the Williamson County home of Carbondale police officer Peter Emmitt. In the mid-morning of June 22, Murphysboro police discovered Richard Nitz in possession of a revolver belonging to Emmitt. Nitz and defendant Gardner were arrested on possessory weapons offenses, and Nitz' pickup truck was taken to the Murphysboro police station. After obtaining a search warrant, Murphysboro authorities found, in the bed of Nitz' truck, some of the property which had been taken from the Emmitt residence.

Nitz and Gardner were incarcerated in the Jackson County jail while they awaited trial on the weapons offenses. During this period of incarceration, they received a copy of an information which had been filed in Williamson County on June 25, 1979, charging them with the Emmitt burglary. After the conclusion of the Jackson County prosecutions, Nitz and Gardner were transferred to the Williamson County jail.

In May of 1980, Richard Nitz entered a plea of guilty to burglary and theft, based on the offenses committed at the Emmitt residence. Pursuant to plea negotiations, Nitz received a sentence of four years' imprisonment in exchange for his agreement to testify, at defendant Gardner's trial, that Gardner entered Emmitt's home and removed some of the property which was ultimately recovered from Nitz' truck.

Defendant Gardner's case came to trial in July of 1980. Richard Nitz was the State's chief witness against him. Nitz stated that, at about 12:30 a.m. on June 22, he, Gardner and a woman named Cheri King left Carbondale in King's car. Gardner told King to drive to an area known as Crab Orchard Estates, with which Nitz claimed he was unfamiliar. At about 1 a.m., they arrived at Emmitt's house. Gardner went inside, and came out with a television set, which he loaded into King's car. Nitz and King then joined Gardner in removing items from the house and loading them into the car.

When their task was completed, the three went to Cheri King's house and deposited the stolen property. Nitz testified that he and Gardner returned to a parking lot in Carbondale, where, from 3 until 7:30 a.m., they worked on Gardner's disabled truck. At that time, Gardner drove Nitz' truck to John A. Logan College, where he dropped Nitz off for classes. According to Nitz, when Gardner returned to pick him up several hours later, Cheri King was with him, and the stolen property was in the bed of Nitz' truck.

Nitz drove the three to Jim Jackson's Shell Station in Murphysboro. Jackson testified that, at 9 a.m., Gardner had telephoned him to offer to sell him some guns and stereo equipment. An investigator for Gardner's former trial counsel was introduced to say that Jackson told him that Nitz, not Gardner, had telephoned. Jackson did not remember answering any of the investigator's questions about the case. After receiving the call, Jackson alerted the Murphysboro police about the possibility of stolen property, and they set up surveillance.

When they arrived, at 11 a.m., Nitz and Gardner went into the station's office, Nitz holding the revolver. Nitz handed the gun to Gardner, who offered it to Jackson. After Jackson said that he was not interested in it, Gardner returned the revolver to Nitz, and stated that he wanted to show Jackson a shotgun. Nitz and Gardner then started to return to the truck, and were arrested by Murphysboro authorities. Cheri King, who did not enter the office of the service station, did not testify at Gardner's trial.

Defendant Gardner took the stand and presented an alibi defense. He testified that between 10 p.m. on June 21 and 4:15 a.m. on June 22, he was with Richard Nitz at several locations in and around Carbondale. According to Gardner, much of this time was consumed in towing or working on his disabled truck. Defense witness Johna Batson, who was a bartender at the King's Inn Lounge in Carbondale, stated that Gardner was at the King's Inn with a friend known to her as "Josh" between 10 p.m. and midnight on June 21 and between 1:40 a.m. and 2:20 p.m. on June 22.

Gardner testified that Nitz was with him until 4:15 a.m., when Nitz left in his own truck, presumably to go to John A. Logan College. Nitz rejoined Gardner in Carbondale at about 9 a.m., with Cheri King as a passenger in his truck, and the three went to Jackson's Shell. In Gardner's version of the events, he never called Jim Jackson that morning, he did not offer any property to Jackson, and he was in the process of obtaining the keys to the station's wrecker to tow his own truck when he was arrested. Gardner also stated that he had never seen any of the stolen property either in the passenger compartment or in the bed of Nitz' truck before his arrest. However, a print of Gardner's right ring finger was taken from a turntable dustcover belonging to Peter Emmitt, recovered from Nitz' truck, and claimed by Gardner at trial to have never previously been seen by him.

The first issue which must be addressed in this case concerns conflicting representation. Gardner's counsel, from the office of the State Appellate Defender, states that this court should have allowed that office to withdraw as Gardner's counsel on appeal, because Richard Nitz was represented by counsel from that office in his appeal from his guilty plea. The People respond that this court's earlier denial of the motion to withdraw as counsel bars further litigation of this issue, that the issues raised on appeal by Nitz and Gardner do not demonstrate antagonistic defenses in this court, that the filing of an opinion in Nitz' case before the motion to withdraw was made in Gardner's case removed any possible conflict, and that the transfer of Gardner's case to a district office of the State Appellate Defender which did not represent Nitz cures any problems raised by conflicting defenses.

In People v. Rogers (1981), 101 Ill. App.3d 614, 428 N.E.2d 547, this court considered the approach which should be taken when co-defendants are represented by attorneys of the office of the State Appellate Defender, whether from the same or different district offices. It was stated that, while the standards for determining the existence of a conflict should be less rigorous for appellate counsel than for trial counsel, the guidelines of People v. Nelson (1980), 82 Ill.2d 67, 411 N.E.2d 261, are nonetheless relevant to such an inquiry. A precise standard for this type of issue was not pronounced in Rogers, for the court found no inconsistency in the positions taken in Rogers' appeal and that of his co-defendant. In our opinion, a similar situation obtains in this case.

Richard Nitz' appeal addressed the single issue of whether he had waived his right to a speedy trial by pleading guilty to the Emmitt burglary. As the People correctly note, this position does not affect the presentation of Gardner's appeal. In a similar manner, most of the arguments in Gardner's brief are concerned with errors in his trial that are completely unrelated to Nitz' case. Gardner does not argue that he was not proven guilty beyond a reasonable doubt, and therefore he makes no direct attack on the credibility of Richard Nitz.

The two arguments made by Gardner which refer to Nitz are that Gardner's sentence was disproportionate to that imposed on Nitz, and that the trial court should have admitted into evidence to impeach Nitz a letter from Nitz to his wife. As we held in Rogers, the first argument presents no conflict because Gardner's assertion that his sentence was excessive does not concede the propriety of Nitz' sentence. Moreover, Nitz' sentence was not challenged on appeal.

Gardner's counsel urges that the challenge to the trial court's ruling on the Nitz letter creates a conflict of interest because (1) an attorney is obligated not to disclose a secret of a client in order to benefit himself or a third person (79 Ill.2d R. 4-101), and (2) Nitz attacked his plea agreement on appeal. Because defense counsel made no reference to a duty to protect clients' confidences until the reply brief, we will consider only the latter of those contentions. Ill. Rev. Stat. 1979, ch. 110A, par. 341(g); People v. Borges (1980), 88 Ill. App.3d 912, 410 N.E.2d 1076. • 1 As we indicated above, Nitz' appeal consisted solely of an attempt to assert the bar of the speedy-trial rule. He did not raise any claim that he did not commit the crimes to which he entered a plea of guilty. Thus, even assuming that the desired introduction of the Nitz letter is characterized as a direct attack on Nitz' credibility, Gardner's position on that issue does not in any way undermine Nitz' appeal, and vice versa. We find nothing in either case which would act to inhibit the presentation of a vigorous defense on behalf of Gardner or Nitz. Therefore, we confirm our previous order denying the office of the State Appellate Defender leave to withdraw as counsel for defendant Gardner.

Next, it is claimed that the defendant was denied a speedy trial, as required by section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a)). Since he was held by authorities in both Williamson and Jackson counties prior to his trial for the Emmitt burglary, the threshold question is when the 120-day period began to run for purposes of the Williamson County prosecution. The defendant argues that that period commenced on June 28, 1979, when a Williamson County arrest warrant was delivered to him in the Jackson County jail by jail personnel. The trial court held that the time began to run on August 22, 1979, when Gardner and Nitz were brought, pursuant to a writ of habeas corpus ad prosequendum, to the Williamson County jail, where they spent the evening before their first appearance the following day. Both men were returned to Jackson County after that appearance. The People contend that either the trial court's ruling was correct or Williamson County did not take custody of the defendant until September 20, 1979, when the Jackson County proceedings concluded.

In support of his theory that his receipt of the Williamson County arrest warrant acted to commence the 120-day speedy-trial period, the defendant points to People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242. There, the defendant was first charged with a Champaign County crime, then was arrested in DeWitt County on other charges. He later escaped from DeWitt County, and was eventually apprehended in Champaign County by F.B.I. agents acting under the authority of a Federal fugitive from justice warrant obtained by DeWitt County. While in the Champaign County jail, the defendant was arrested on the Champaign County warrant, taken before a magistrate and served with a copy of the original Champaign County complaint. The supreme court held that the defendant was "in custody" of Champaign County from the date of the service of the Champaign County ...


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