Appeal from the Circuit Court of Cook County; the Hon. Michael
C. Close, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Defendant, Paul Baker, was charged in a six-count information with armed violence, aggravated battery and attempted murder of Cornelio Cruz and Angie Stoklasa. After a jury trial he was found guilty on all counts and sentenced to a term of 40 years for attempted murder and a term of 25 years for armed violence, the sentences to be served consecutively. Defendant filed petitions seeking a new trial under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et al.) and under former section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). The trial court granted both petitions and ordered a new trial. From this order the State has appealed; defendant has appealed his conviction. We consolidated the appeals.
• 1 The principal issue in the direct appeal is whether the trial court erred in permitting two Federal Bureau of Investigation (FBI) informants to testify as to post-indictment admissions made by the defendant in conversations with them and in admitting into evidence a taped recording of one of those conversations. All of the conversations were had after defendant had retained counsel and outside his attorney's presence. Defendant contends that this evidence was illegally obtained and was admitted into evidence in violation of his right to counsel under the sixth amendment, citing Massiah v. United States (1964), 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199.
Paul Baker was indicted on April 29, 1981. The next day attorney Dean Wolfson filed his appearance. Wolfson was later replaced by other lawyers, and throughout the proceedings, Baker had counsel of record. Beginning in late September 1981, two FBI informants, James Galvin and Sherry Galvin, had conversations with Baker outside the presence of his attorneys and without his attorneys' knowledge. Andrew Caster, a special agent with the FBI, testified that he had known the Galvins since 1980 and that they had provided him with information over that period. During the month of November 1981, he visited or talked with them by telephone two or three times a day, and on the 17th of November he obtained a court order authorizing him to make a "body recording" of conversations between the Galvins and Baker. That day he placed a recording device on James Galvin and recorded the conversation the Galvins had with Baker. A taped recording of that conversation was admitted into evidence.
Both Galvins testified to a series of conversations had with Baker during the months of September, October and November 1981, in which he admitted the unsuccessful attempt to kill Angie Stoklasa and Cornelio Cruz, of which he is charged in the instant case. In addition, Baker admitted the later fatal shooting of Cruz, and he shared with James Galvin his plan to kill a witness. All of this was told to the FBI. In Massiah, the United States Supreme Court held that incriminating post-indictment statements obtained by Federal agents from a defendant in the absence of his attorney deprived him of his right to counsel under the sixth amendment, and therefore such statements could not constitutionally be used as evidence against him at trial.
The State, in an unsuccessful effort to remove this case from the ambit of Massiah, makes several contentions. The reply brief states: "The People maintain that the court properly allowed the conversation which took place between defendant and Sherry and Jim Galvin into evidence as they were voluntary admissions of guilt." This fails to distinguish the instant case from Massiah, because this was also true of the admissions in Massiah. Indeed, the dissenters in Massiah observed that the rule announced by the majority "would exclude all admissions made to the police, [in absence of counsel] no matter how voluntary and reliable * * *." Massiah v. United States (1964), 377 U.S. 201, 209, 12 L.Ed.2d 246, 252, 84 S.Ct. 1199, 1204.
The State points out that neither of the Galvins received any money for the information concerning the defendant, but cite no case in which that was a critically relevant factor. In Massiah, the informant, Colson, was a co-defendant who decided to cooperate with the government. The court did not discuss his motivation or whether or not he was paid. Here, James Galvin testified that he had been supplying information to the FBI for two years, and had been paid about $600. He and his wife had received no money for the information supplied against Baker, but they were promised that they would be relocated. We fail to see how these facts provide an answer to the charge in defendant's petitions that he was deprived of his sixth amendment right to counsel.
The State contends that "[d]efendant's voluntary statements to the Galvins can hardly have been said to have been part of a `deliberate and designed' attempt to elicit incriminatory information from defendant. Indeed, most of the information was volunteered by defendant without any questioning or coercion by the Galvins." This argument was rejected by the Illinois Supreme Court in People v. Lagardo (1968), 39 Ill.2d 614, 616, 237 N.E.2d 484:
"There has been some difference of opinion by the courts of this country as to whether the Massiah doctrine operates to exclude only incriminating post-indictment statements which are induced or deliberately elicited by police officers in the absence of counsel. However, we have interpreted Massiah to exclude all post-indictment incriminating statements obtained in the absence of counsel, even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception. (People v. Milani, 39 Ill.2d 22, 27; see Mathis v. United States, 36 L.W. 4379.)"
In our opinion, the issue of the admissibility of defendant's post-indictment conversations is controlled by Massiah, and it was error to admit that evidence. The State contends that the admission, if error, was harmless error.
Aside from the testimony regarding defendant's post-indictment conversations, the State's evidence included the following: testimony which placed defendant shortly after the shooting standing coatless in an alley near the scene of the crime; two guns found in a trash can wrapped in a jacket a few feet from where defendant was standing; and the courtroom identification by Angie Stoklasa. We are aware that the positive identification of one eyewitness is sufficient to sustain a conviction. (People v. Manion (1977), 67 Ill.2d 564, 578, 367 N.E.2d 1313.) However, the test to be applied to these post-conviction petitions is whether we can say beyond a reasonable doubt that the testimony which we find was improperly admitted did not influence the jury's verdict. United States v. Henry (4th Cir. 1978), 590 F.2d 544, affirmed (1980), 447 U.S. 264, 65 L.Ed.2d 115, 100 S.Ct. 2183.) Under the facts of this case we cannot.
• 2 The prejudice caused by the admission of the informant testimony was compounded by the fact, as defendant charges in his post-conviction petitions, that both of his trial counsel had a per se conflict of interest which deprived him of his right to the effective assistance of counsel. We agree. The cases cited by the prosecution in reference to this point involve conflict between defense counsel's loyalty to third parties and the duty to represent defendant. The instant case is worse. It involves conflicts between attorneys' duties to their client on trial and their own personal interests, indeed, perhaps their penal interests. The conflict became evident when Baker's attorney, Charles Schwartz, testified at a post-conviction hearing that he did not call police officer J. Hanrahan to testify at Baker's trial, although he knew that the officer's testimony would impeach the State's only identification witness. Schwartz testified that he believed that if he did not call Hanrahan, he himself would escape investigation and possible prosecution on the State or Federal level. Defendant's section 72 petition points out the significance of the failure to call Officer Hanrahan to testify in the instant case, making this allegation:
"Petitioner was recently tried for the murder of Cornelio Cruz at a jury trial before the Honorable James M. Bailey in Case No. 81 C 9446. The jury acquitted Petitioner of all charges. During the trial Officer J. Hanrahan of the Chicago Police, Star No. 11799, testified that he interviewed Angela Stoklasa on the morning of April 19, 1981, at St. Mary's Hospital. At that time she told him that she would be unable to identify her assailant. Angela Stoklasa would later testify at the trial in this case that Paul Baker was the assailant. Officer Hanrahan did not testify at the trial."
Officer Hanrahan at the post-conviction hearing testified that he asked Angela Stoklasa at the hospital if she could say whether the assailant was male or female and she said that she could not. Officer Hanrahan said he was subpoenaed to the attempted murder trial as a witness but was not called to testify. That day he told Baker's attorney, Charles Schwartz, ...