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June 18, 1982


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


On January 18, 1982, Ronald Tonaldi ("Tonaldi") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking review in this Court of his state conviction for possession of more than 30 grams of cocaine. The conviction was affirmed by the Appellate Court of Illinois in People v. Tonaldi, 98 Ill.App.3d 528, 54 Ill. Dec. 297, 424 N.E.2d 1200 (1st Dist. 1981), and the Illinois Supreme Court has denied leave to appeal.*fn1 Presently before the Court are the parties' cross-motions for summary judgment on Tonaldi's underlying claim that he was denied the effective assistance of counsel when his lawyer jointly represented several co-defendants at trial.*fn2 The Court has held an evidentiary hearing to determine whether Tonaldi's purported waiver of his right to a separate attorney was knowing, intelligent and voluntary. Having carefully considered the evidence adduced at that hearing and the evidence contained in the record, the Court will grant Tonaldi's motion for summary judgment and deny respondents' motion.

The parties do not dispute that the trial testimony of one of petitioner's co-defendants, Carol Masorlian ("Masorlian"), also represented by Tonaldi's attorney, was in conflict with Tonaldi's defense. Specifically, Masorlian testified that she saw a bag, later discovered to contain cocaine, on the floor of Tonaldi's car when he picked her up at her home on April 12, 1979. This testimony, exculpatory as to Masorlian but inculpatory as to Tonaldi, was relied upon by the trial judge when he found Tonaldi guilty of constructively possessing the cocaine discovered in the bag.*fn3 In light of this inculpatory testimony from his co-defendant, Tonaldi now claims that his lawyer's joint representation of Miss Masorlian and himself violated his sixth amendment right to effective assistance of counsel.

Respondent argues that Tonaldi waived his right to separate counsel when the trial court warned him of his lawyer's potential conflict of interest prior to trial.*fn4 The Illinois Appellate Court, upon review of the transcript of that admonishment, concluded that Tonaldi's acquiescence in the joint representation constituted a knowing, intelligent and voluntary waiver of his right to separate counsel. Tonaldi, supra, 98 Ill. App.3d at 531, 54 Ill.Dec. 297, 424 N.E.2d 1200. Tonaldi's petition for a writ of habeas corpus in this Court alleges that the state Appellate Court's conclusion is unsupported by the record.

As a general matter, factual determinations made by state trial and appellate courts enjoy a "presumption of correctness" in the context of a federal petition for a writ of habeas corpus. 28 U.S.C. § 2254(d) (1976). Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). That presumption does not, however, attach to state court determinations involving mixed questions of fact and law or to determinations of law as applied to facts found by the state court. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963); United States ex rel. Veal v. Wolff, 529 F. Supp. 713, 723-24 (N.D.Ill. 1981). The Appellate Court's conclusion in this case regarding the knowing and intelligent character of Tonaldi's acquiescence in his counsel's joint representation falls within this latter category. That conclusion is not the kind of "basic, primary or historical" fact due a presumption of correctness in this context. Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1714. Accordingly, pursuant to our earlier opinion on Tonaldi's petition, this Court conducted an evidentiary hearing*fn5 to determine whether petitioner's response to the trial court's admonishment constituted a knowing and intelligent waiver of his right to separate counsel.

Tonaldi testified at the hearing that, despite the trial court's warning, he acquiesced in the joint representation in reliance on his attorney's advice.*fn6 Tonaldi also testified that, at the time he was admonished by the trial court, he "couldn't imagine" any harmful testimony coming from his co-defendants and that he did not understand how any conflicting testimony from those defendants would impair his lawyer's effectiveness.

As discussed more fully in our prior opinion, the sixth amendment right to effective assistance of counsel necessarily encompasses the right to representation by an attorney who does not owe conflicting duties to other defendants. Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978). To be effective, the waiver of that right must be knowing and intelligent. Id. at 483 n. 5, 98 S.Ct. at 1178 n. 5; Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942). The fundamental importance of a defendant's sixth amendment rights dictates that the Court indulge in all reasonable presumptions against a waiver of those rights. United States v. Davis, 604 F.2d 474, 482 (7th Cir. 1979); Day v. United States, 357 F.2d 907, 909 (7th Cir. 1966). Accordingly, Tonaldi's inability to appreciate the consequences of his attorney's joint representation, if true, vitiates the constitutional effectiveness of his purported waiver of the right to separate counsel. Tonaldi, supra, 537 F. Supp. at 1232. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970).

Respondents attempt to demonstrate on two levels that Tonaldi understood the nature and significance of the right to separate counsel he purportedly waived before the trial judge. First, they point out that Tonaldi was present at the preliminary hearing during which his co-defendant Masorlian testified to the same effect as she testified at trial.*fn7 Respondents argue, therefore, that Tonaldi had notice of the existence of a conflict between co-defendants before he was asked to waive his right to separate counsel. According to this theory, Tonaldi should have had an independent basis from which to evaluate the worth of his counsel's advice and the significance of the trial court's admonishment.

Respondents' thesis does not establish the knowing and intelligent nature of Tonaldi's purported waiver. That Masorlian testified at the preliminary hearing to the same effect as she testified at trial did not put Tonaldi on notice of the incriminating implication attributed to that testimony by the trial judge. On its face, Masorlian's former testimony does not appear to incriminate Tonaldi. Even Tonaldi's counsel, who participated in the preliminary hearing, failed to perceive the existence of a conflict of interest between co-defendants as the result of Masorlian's testimony.*fn8 We can hardly hold that Tonaldi understood the legal implications of Masorlian's former testimony when the record makes clear that his own attorney failed to appreciate those implications. Moreover, even if petitioner recognized a conflict between Masorlian's former testimony and his own defense, there is no evidence to rebut Tonaldi's testimony that, at the time of trial, he failed to understand how such conflicting testimony would impair his lawyer's effectiveness.*fn9

Respondents also attempt to establish the knowing and intelligent nature of Tonaldi's purported waiver by offering general evidence of his level of competence in business affairs and his experience in the criminal justice system. Tonaldi owns two commercial properties in the Chicago area and a private residence in Wainesville, Illinois. He has obtained loans totalling over $150,000 for the acquisition, maintenance and rehabilitation of these properties. Tonaldi's criminal record reflects that he pleaded guilty to a charge of criminal trespass to a vehicle in 1963 and was sentenced to one year probation*fn10

Taken together, these facts do not establish that Tonaldi knowingly and intelligently waived his right to separate counsel. As indicated in our prior opinion, the rights endangered by an attorney's joint representation of criminal defendants are subtle, yet fundamental. A defendant's relative success in business affairs or his non-trial exposure to the criminal justice system almost two decades ago does not evidence his ability to appreciate the special problems raised by joint representation.

Tonaldi's general level of competence and exposure to some of the harsh realities of life might well have been sufficient to establish a knowing and intelligent waiver if the petitioner had been warned, either by his own attorney or the trial court, of the specific nature of the conflict and the implications of that conflict on his attorney's effectiveness. This record, however, does not reflect such a warning. Although the trial court attempted to explain to Tonaldi the danger of joint representation, this explanation was constitutionally defective because the court itself was not in a position to know the specific dangers and could not reasonably predict them so as to intelligently advise the petitioner.*fn11 Cf. United States v. Agosto, 528 F. Supp. 1300, 1306-10 (D.Minn. 1981). United States v. Garafola, 428 F. Supp. 620, 623-24 (D.N.J. 1977), aff'd sub nom, United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978). The abstract and hypothetical admonishment delivered to Tonaldi in this case was simply insufficient to inform him of the fundamental nature of the right he was purporting to waive.

The problem raised by the circumstances of this case would be obviated if courts actively discouraged the joint representation of criminal defendants in all but the most exceptional cases. The ethical and constitutional implications of joint representation dictate that trial courts strictly scrutinize any case where multiple defendants express a willingness to be defended by the same attorney.*fn12 As discussed in our prior opinion, it may very well be the better procedure for a court to err on the side of precluding joint representation rather than be vulnerable on review to the kind of contentions raised by petitioner in this case. This is particularly true in a case such as this where the judge, prior to trial, is not in a position to independently evaluate the likelihood or significance of a conflict of interest arising between co-defendants during trial.

As the Supreme Court made clear in Glasser, supra, "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." 315 U.S. at 76, 62 S.Ct. at 467. "[U]nconstitutional multiple representation is never harmless error." Cuyler, supra, 446 U.S. at 349-50, 100 S.Ct. at 1719. For purposes of this petition, therefore, our inquiry ends upon finding that Tonaldi was denied his right to effective ...

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