APPEAL from the Circuit Court of Cook County; the Hon. JAMES
S. QUINLAN, JR., Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted and sentenced to 12 years for robbery in violation of section 18-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18-1). On appeal, defendant contends that (1) he was denied effective assistance of counsel; (2) there were evidentiary errors requiring reversal and remandment for a new trial; and (3) he was denied due process of law because the use of a photographic display for identification was unnecessarily suggestive and conducive to irreparable mistake.
It appears that on December 8, 1978, two men entered a food store and one, holding a gun, ordered employee Thomas Bauer from behind the checkout counter. Shortly thereafter, a third man wearing a ski mask entered and took Bauer's wallet; then, on the order of the man with the gun, Bauer opened the cash register and was told to lie on the floor, and his watch was taken by the man with the gun. Glen Simon, a customer in the store, was also told by the man with the gun to hand over his watch and to lie on the floor. After the men left, Bauer noted that the cash register was empty. On December 28, defendant was arrested and indicted on two counts of armed robbery after having been identified as the man who held the gun.
Prior to trial, the court denied motions (1) of defense counsel to withdraw, (2) of defendant to preclude the testimony of witness Hope Pablo because of the failure to produce her criminal record, and (3) to suppress witness Thomas Bauer's identification.
At trial, Bauer testified that the time of the robbery was from 1 to 5 minutes; that the man with the gun was approximately 6 feet tall, had an Afro hairstyle, sideburns, mustache, black-rimmed glasses, and was wearing a half-length brown coat; that he had previously seen the man in the store but was not certain when or how many times; that he told the police on the night of the robbery he could probably recognize the man with the gun if he saw him again in person; that he looked through three books of police mug shots after the robbery and was unable to recognize any of the robbers, but on January 30 he did identify defendant as the man with the gun and one of the other men from photographs; and that later, during an in-court lineup, he again identified defendant as the man with the gun.
Glen Simon, a customer in the store, testified that during the robbery he observed one of the robbers and heard the voice of another and that, after looking at mug shots on the night of the robbery, he could not recognize anyone but that later he identified Frank Lucius at the lineup as the person he thought was the man with the gun.
Hope Pablo, also a customer, testified that she recognized defendant as the man who held the gun; that she knew him before the robbery; and that he was standing 6 or 7 feet from her during the holdup. On cross-examination, she stated that at the time of the robbery defendant was not wearing an Afro hairstyle and that she never knew him to wear one; that she identified Frank Lucius, and William Hearn as the man wearing the mask; and that Eddie Aikens was standing outside the store before the robbery. Pablo also testified that when the police arrived, she made no statement other than that the store had been robbed; that when she spoke with the police officers again on December 23, she gave them Hearn's name but asked that they not write it down because she was his girl friend, and they told her "they wouldn't put it down, they wouldn't have to put it down, they would just put — another man." She later admitted she did not tell the police officers at the time of the robbery the name of the man wearing the mask and that she had lied to the police on December 23. She testified further, on cross-examination, that while she was a prostitute in the summer of 1977 and intermittently since then, she was not a prostitute during the months of November and December 1978; that during the later months, William Hearn was her boyfriend but not her pimp; that their relationship began in September or October 1978 and lasted about five months; that she was arrested on a warrant in October or November 1978, but that no one had offered to drop charges against her in exchange for her testimony in the instant case. On redirect examination, she said that she first talked to the State's Attorney about testifying in the instant case on the day she was brought to court; that she did not make an identification on December 8 because she was afraid; and that the State promised her, if she testified, that they would relocate her and provide police protection.
Officer Gresham testified that he arrested defendant on December 28, pursuant to a warrant, and that police recovered a gun after defendant informed him of its location at his girl friend's house.
During trial, Pablo's criminal record was produced and the existence of the gun was disclosed for the first time, but the court denied motions to suppress any evidence of a gun and to recall Pablo for cross-examination with regard to any deal made with the State in December 1978. Defendant was found guilty of one count of robbery and not guilty as to two counts of armed robbery.
Defendant first contends he was denied effective assistance of counsel because of his court-appointed attorney's "commitment to co-defendant William Hearn." Initially, we note that joint representation of co-defendants by one attorney does not per se violate a defendant's right to effective assistance of counsel (People v. Nelson (1980), 82 Ill.2d 67, 411 N.E.2d 261), and that this court will not attempt to create an actual conflict of interest through conjecture or mere speculation (People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64). As explained in People v. Doyle (1978), 61 Ill. App.3d 571, 575, 377 N.E.2d 1093, 1097:
"A finding of adverse interests cannot be based on mere assertion and unless the defendant can establish that such conflict in fact existed at trial, this court will not indulge in speculation or conjecture to determine whether separate counsel was required. (People v. Bass (1968), 101 Ill. App.2d 259, 243 N.E.2d 305, appeal denied (1969), 40 Ill.2d 581.) We cannot and will not create a conflict of interest out of mere conjecture as to what might have been shown."
It appears here that William Hearn had been charged in connection with the occurrence in question and that defense counsel had represented him at a preliminary hearing which resulted in his discharge on a finding of no probable cause. Prior to trial, a motion of defense counsel to preclude Hope Pablo from testifying was denied, and counsel then moved for leave to withdraw on the ground that his representation of Hearn would conflict with his representation of defendant. This was so, he stated, because Hearn's testimony would be necessary to discredit the anticipated testimony of Pablo regarding her prostitution activities and her relationship with Hearn, and to rebut any denial she might make of a deal with the prosecution to drop charges against Hearn. The conflict would result because it would be necessary for him to advise Hearn to take the fifth amendment and thus prevent testimony favorable to defendant.
• 1 It is our belief, however, that there was no basis upon which the trial court could properly have concluded that there was a conflict of interest. We note that no such conclusion could have been reached until Pablo had completed her testimony, because it would not be known until then whether there would be any need to call Hearn for rebuttal. Furthermore, counsel informed the court that he had other witnesses to impeach the expected testimony of Pablo and, of course, counsel could have avoided any such possible conflict by withdrawing his representation of Hearn. Additionally, it appears that during his extensive cross-examination of Pablo, she admitted that she had been a prostitute; that she had been arrested therefore; that Hearn was her boyfriend, although she stated he was not her pimp; and that she did not tell the police that Hearn had participated in the robbery because she did not want to implicate him. Moreover, it appears that defense counsel did not believe rebuttal of Pablo's testimony was required, as he did not ...