Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
PRESIDING JUSTICE MEJDA*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 THIS OPINION WAS AUTHORED AND CONCURRED IN PRIOR TO THE RETIREMENT OF PRESIDING JUSTICE MEJDA FROM THE COURT.
Defendants Kenneth Ross and Mark Mosley appeal from the judgments entered on jury verdicts convicting each of them of three counts of murder and one count of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (2), (3), and par. 18-2.) Ross was sentenced to 40 years for murder and 30 years for armed robbery. Mosley received 35 years for murder and 30 years for armed robbery. On appeal, both defendants contend that their representation by the same attorney in a joint trial created a conflict of interest which denied them their sixth amendment right to effective legal representation. Mosley additionally contends that he was denied his sixth amendment right of confrontation because he was unable to challenge pertinent portions of his co-defendant's pretrial statement. We reverse both convictions and remand with directions.
On December 8, 1982, Ralph Kline was robbed and murdered after delivering a pizza at 2026 West 68th Place in Chicago. The investigating officer found Kline dead in the front seat of his car at approximately 8:30 p.m. on December 8. Kline's car was smashed into a parked vehicle at 2026 West 68th Place with the keys in the ignition. The State pathologist later testified that shotgun pellets were found in both the left side of Kline's neck and his right hand. The pathologist stated that death was caused by a shotgun wound and that there had been no evidence of other trauma.
The next day a Chicago police officer arrested Ross and questioned him concerning the events of the previous evening. Ross initially claimed that he had been asked to participate in the robbery of a pizza man but had declined. Later the same day, Ross admitted his participation in the robbery-murder, but claimed he had acted solely as a lookout. Ross thereupon gave police a statement describing the events of December 8, 1982. In his statement, Ross indicated that on December 8, he, Mosley, Antoine Brewer, and Tyrone Livingston were together and decided to rob a pizza man. (It was later demonstrated that Livingston had an ironclad alibi for the time in question and no charges were brought against him.) Ross stated that Brewer called a local restaurant and ordered the delivery of a pizza to the 2000 block of West 68th Street. The four then proceeded to West 68th Place and Hoyne Avenue to await the deliveryman. When no deliveryman appeared, Brewer again called the restaurant. Shortly thereafter, they observed Kline complete delivering a pizza to 2026 West 68th Place. At this point, Ross stated that he acted as a lookout while Mosley, Brewer, and Livingston approached Kline as he moved toward his car. Kline managed to get into his car while Mosley attempted to grab him from the passenger side. At the same time, Brewer and Livingston, armed with a shotgun and pistol respectively, were on either side of the car. When Kline started his motor in an attempted escape, Brewer shot Kline in the back. After taking $27 from Kline, all four fled the scene of the crime.
After taking Ross' statement, the police arrested Mosley later the same day. Mosley gave police a statement wherein he admitted participating in the events of the preceding evening. However, Mosley claimed that he rather than Ross acted as lookout during the robbery-murder. In addition, Mosley stated that only Ross, Livingston, and he were involved; that Ross and Livingston were armed, and that a struggle had ensued between Ross, Livingston, and Kline. In all other respects, Mosley's statement was similar to that given by Ross.
Both defendants were represented at trial by the same privately retained counsel. Defendants' attorney filed no pretrial motions to quash the arrests, to suppress evidence, or to sever defendants' trial. In his opening statement to the jury, defense counsel stated that the defendants' statements were inconsistent with each other, and therefore, if one were true the other could not be true. The State's witnesses at trial included the woman to whom Kline had delivered the pizza, the owner of the restaurant at which Kline had worked, three police officers, and an assistant State's Attorney. The police officers and the assistant State's Attorney had participated in the investigation and pretrial interrogation of both defendants. In cross-examining one of the officers, defense counsel asked if Ross had lied in naming Tyrone Livingston as a participant in the robbery-murder. Livingston's name had not previously been mentioned by either the prosecution or the defense. Defense counsel also asked the assistant State's Attorney if he believed both defendants and whether he had attempted to reconcile their statements. At the close of the State's case in chief, the pretrial statements of both defendants were admitted into evidence.
Mosley testified at trial in his own behalf and denied his participation in the robbery-murder. He stated that on December 8, 1982, he was 17 years old and living with his father, mother, and seven sisters at 2119 West Marquette Road in Chicago. He added on the evening in question he was leaving the gameroom on his way home when he heard a shot which he ascribed at that time to gang activity. Mosley further testified that he was arrested at approximately 6 p.m. on December 9, 1982, at West 69th Street and Damen Avenue, and taken to a nearby police station, that he had made two requests to call his mother after arriving at the police station and that both requests were denied, and that he gave police a false statement at that time. Mosley explained that he gave the statement because he was frightened since he had never been arrested and could not call his mother.
Alphonso T. Smith, Director of the Citizens Council of the Southwest Englewood Community, testified as a character witness on Mosley's behalf. Smith testified that he had known Mosley for three years, and that he was familiar with Mosley's reputation in the community as an upright, honest, and truthful young man. Ross did not take the stand nor did any witnesses appear on his behalf.
The jury retired to deliberate at 2:38 p.m. At 7:09 p.m., the jury submitted a note to the court, stating that they were indefinitely deadlocked. The court chose to lock the jury up for the evening. The jury resumed deliberations at 9:30 a.m. the next day. At approximately 3 p.m, the jury submitted another note stating that they had reached a verdict on one defendant, but could not reach a verdict on the second defendant. The jury was then brought out and, over defense counsel's objection, given an instruction in accordance with People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731. At approximately 5 p.m., the jury returned a verdict of guilty as to both defendants.
On appeal, both defendants contend that their joint representation by the same attorney in a single trial created a conflict of interest denying each of them the right to effective assistance of counsel. Mosley also contends that he was denied his right of confrontation because of his inability to challenge Ross' pretrial confession received in evidence. The State maintains that defendants waived the issues by failing to raise them either at trial or in a post-trial motion.
• 1 Generally, an issue not raised at trial or in a post-trial motion cannot be raised for the first time on appeal. (People v. Caballero (1984), 102 Ill.2d 23, 31, 464 N.E.2d 223, cert. denied (1984), 469 U.S. 963, 83 L.Ed.2d 298, 105 S.Ct. 362; People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227.) An exception to the general rule of waiver applies where a defendant alleges a conflict of interest resulting in ineffective assistance of counsel, although the right of appeal may be lost if there has been a post-trial review of defendant's case by independent counsel. (People v. Bainter (1981), 102 Ill. App.3d 1029, 1031, 430 N.E.2d 721; People v. Sally (1980), 84 Ill. App.3d 167, 169, 405 N.E.2d 407.) Here there is no indication of any post-trial review by independent counsel for either defendant prior to this appeal to preclude our review. In addition, plain errors or defects affecting substantial rights may be noticed, although not brought to the attention of the trial court. (87 Ill.2d R. 615(a).) Under the plain error rule, an issue can be raised for the first time on appeal if it involves error so substantial that defendant was denied a fair and impartial trial. (People v. Beasley (1982), 109 Ill. App.3d 446, 440 N.E.2d 961; People v. Winston (1982), 106 Ill. App.3d 673, 435 N.E.2d 1327; People v. Andino (1981), 99 Ill. App.3d 952, 425 N.E.2d 1333; People v. Carlyle (1979), 69 Ill. App.3d 14, 387 N.E.2d 1.) A conflict of ...