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People v. Wilkerson

OPINION FILED APRIL 17, 1984.

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

v.

JOHNNIE B. WILKERSON JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:

The defendant was tried by a jury, convicted of several counts each of attempted murder, armed violence, and aggravated battery, and sentenced on the two more serious groups of convictions, those for attempted murder and armed violence, to concurrent terms of 25 years' imprisonment. On appeal the defendant raises a number of questions concerning the course and conduct of his trial and the sentences that were imposed. We conclude that no error occurred and therefore affirm the defendant's convictions and sentences for attempted murder. The convictions for armed violence and aggravated battery and the sentences for armed violence are redundant, however, and must be vacated.

The convictions arose from a dispute that occurred between the defendant's family and some neighbors on September 23, 1978, at an apartment complex in Champaign. That day Vivian Turner, the defendant's sister, learned that her son had been bitten by a neighbor's son and complained about this to the neighbor, Katie Bolden. Turner and Bolden got into a fight, which a police officer ended temporarily. Later, Turner and Bolden resumed fighting. The defendant and his brother, Johnnie "Little Johnnie" Wilkerson, then appeared; the defendant was armed, and he shot and wounded two members and a friend of the Bolden family. The defendant also was wounded. Whether anyone in the Bolden group was armed was disputed at trial.

This was the defendant's second trial on these charges; his earlier convictions were vitiated by trial error and reversed on appeal (People v. Wilkerson (1981), 87 Ill.2d 151, 429 N.E.2d 526).

I

The defendant argues first that he was denied a fair trial because of per se conflicts of interest inhering in the persons appointed here as special prosecutor and special defense counsel.

At arraignment after the cause was remanded for a new trial, the defendant objected to the appointment of the public defender as his counsel because he feared that a conflict of interest could arise from the public defender's simultaneous representation of his brother on charges arising from this same incident. The defendant requested the appointment of Marian Kurata, who had successfully argued his earlier appeal. The trial court granted the defendant's request and appointed Kurata as defense counsel. Robert Frederick had been appointed to serve as special prosecutor.

Later, Kurata moved to vacate the appointment of Frederick as special prosecutor and her own appointment as defense counsel. The basis for the motion was Frederick's and Kurata's former employment together in the Champaign County public defender's office during the defendant's first trial on these charges. At that time, Frederick was head of the office, Kurata was an assistant, and another assistant was representing Vivian Turner, the defendant's sister, on charges arising from this same incident; the defendant was represented by privately retained counsel. The motion alleged that trial strategy might have been discussed by or made available to these various lawyers.

At a hearing on this motion, Frederick said that he could remember no conversations with Turner's lawyer regarding this case and that he had no knowledge of that representation. The trial court denied the motion to vacate Frederick's appointment as special prosecutor. The trial court then asked the defendant whether he wanted Kurata to continue as his lawyer, and the defendant replied that he did. The court denied the motion to vacate Kurata's appointment as defense counsel.

• 1 Frederick's service here as special prosecutor did not violate the rule forbidding criminal prosecution by a person who has acquired from the accused confidential information concerning the particular offense. (People v. Gerold (1914), 265 Ill. 448, 107 N.E. 165; People v. Rhymer (1975), 32 Ill. App.3d 431, 336 N.E.2d 203; People v. Curry (1971), 1 Ill. App.3d 87, 272 N.E.2d 669.) In Gerold the court said:

"An attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closely interwoven therewith." (People v. Gerold (1914), 265 Ill. 448, 478, 107 N.E. 165, 177.)

Because Frederick never had a professional relationship with the defendant, the only way in which he could have obtained the disqualifying information would have been through conversations with the defendant's privately retained lawyer or, less directly, with the assistant in his own office who was handling Vivian Turner's case. Both those routes are too attenuated to compel the conclusion that Frederick occupied a position that gave him access to disqualifying information. Further, we note that at the hearing on the pretrial motion, Frederick stated that he had no knowledge of defendant's case from any prior representation.

We note also that a public defender's office is not regarded per se as a law firm or single entity in considering conflicts of interest arising from multiple representation. (People v. Nelson (1980), 82 Ill.2d 67, 411 N.E.2d 261.) Therefore, Frederick's former position as head of the office cannot by itself mean that he should be deemed to have acquired whatever information his assistant defenders acquired.

• 2 The defendant also objected to Kurata's appointment as special defense counsel. Kurata served as an assistant public defender during Frederick's tenure as head of that office and while Vivian Turner was being represented on charges arising from this same incident. This by itself does not compel Kurata's disqualification. (Nelson.) More important, Kurata's earlier employment as an assistant public defender under Frederick's authority was placed on the record in the defendant's presence. The defendant persisted in his desire to have Kurata serve as his lawyer, however. Therefore, the defendant has knowingly waived any conflict of interest that might have derived from Kurata's previous employment.

The defendant also argues that Kurata's agreement to evidentiary stipulations proposed by the State is evidence of a less than vigorous defense. Before trial the special prosecutor asked the court to admit stipulations concerning the chain of custody of five bullets that either had been found at the scene or had been removed from the victims' bodies. Kurata told the court that she signed the stipulations over the defendant's objection; she believed that the defendant could secure a similar stipulation in exchange for agreement here. The defendant told the court that he did not want to help the State prove its case against him. The stipulations were admitted into evidence, and the defendant repeated his objection when they were read to the jury. The defendant believed that the State and defense counsel were conspiring against him.

The relationship between a lawyer and her client is that of agent and principal; a lawyer is bound to follow the lawful instructions of her client, and her actions are restricted to the scope of the authority conferred. (Chiappetti v. Knapp (1974), 20 Ill. App.3d 538, 314 N.E.2d 489; Fleener v. Fleener (1970), 133 Ill. App.2d 118, 263 N.E.2d 879.) At the same time, though, the lawyer is the manager of the lawsuit, and therefore decisions on ...


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