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People v. Powell

OPINION FILED DECEMBER 30, 1985.

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

v.

JEREMIAH POWELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, Jeremiah Powell was convicted of aggravated battery to a child (Ill. Rev. Stat. 1983, ch. 38, par. 12-4.3) and sentenced to an extended term of 14 years' imprisonment. He appeals, contending that the trial court erred: (1) in refusing to appoint counsel other than the public defender; (2) in ruling that his 11-year-old conviction for deviate sexual assault was admissible for impeachment purposes; (3) in excluding hearsay statements falling within the exception for declarations against penal interest; and (4) in imposing an extended term based upon the victim's age and the disparity between the victim's and defendant's sizes.

At defendant's trial, Betty Sue Hersman testified that on May 29, 1984, she was living in an apartment in North Chicago with her four-year-old daughter Ruth Ann, infant son Tyrone and the defendant, who had lived there for approximately two months. She telephoned defendant at work about 9 p.m. that evening to tell him that she had to leave for work and asked him what she should do with the children. Defendant told her to leave them at home because he would be home shortly. Hersman left for work at 10:40 p.m. after telling the landlord, who lived on the first floor, that the children would be alone until defendant came home.

Willie Bacon, the landlord, testified that when he returned from work about 12:45 a.m. he heard water running in the Hersman apartment, and so he let himself into the apartment and turned off the water. He saw no one in the apartment because no lights were on. Between 2 and 3 a.m., Bacon heard a noise as if someone was throwing a ball or something else against the wall. He also heard a female child crying loudly and a man, whose voice he identified as defendant's, yelling. The child screamed for approximately 30 minutes.

Four-year-old Ruth Ann Hersman testified that defendant cut her left cheek with a six-inch-long kitchen knife, and also hit her in the head, eyes and back with his fist and a belt. She eventually went to sleep and was taken to the hospital the next day. Ruth Ann testified that she was not afraid of the defendant the following morning or at the time of trial.

Betty Hersman further testified that when she returned home from work about 7:30 a.m., defendant and the children were asleep. She first noticed that Ruth Ann had been "beat up" when she checked the children about 12:20 p.m. Hersman observed bruises on Ruth Ann's face, chest, abdomen and back, two black eyes, and a cut on her upper jaw. Hersman questioned the defendant, who said that he did not know what had happened to Ruth Ann. When she was questioned, Ruth Ann named her baby brother Tyrone, the family dog, and the defendant as being responsible. Hersman also asked the landlord if he knew anything, and he told her he heard a noise and a voice that sounded like defendant's.

Hersman stated that she took Ruth Ann to the home of Ollie Love, defendant's sister, where Ruth Ann blamed about a dozen people for her injuries; according to Hersman, Ruth Ann told "stories" at times. Hersman further testified that she was primarily responsible for disciplining her children and that she never knew defendant to strike or discipline them.

Ollie Love testified that when she saw Ruth Ann she noticed bruises on Ruth Ann's face and a band-aid on her cheek. Hersman and defendant told Love they did not know what happened to Ruth Ann. Love asked Ruth Ann who had done it, to which Ruth Ann responded Junior (Love's nephew), Junior's mother Marie, the floor, Maurice and defendant.

Dr. William Helvey examined and treated Ruth Ann in the emergency room. He testified that the cut on Ruth Ann's cheek was about 2 1/2, inches long, down to the bone and required 20 stitches to close. In his opinion, Ruth Ann's injuries were the result of a beating.

Defendant first contends that he was denied effective assistance of counsel in that the court refused to appoint counsel other than the public defender. In a hearing for appointment of counsel, defendant told the judge that he had experienced problems with the public defender's office in the past, having taken them to court once, and that the court had always appointed private counsel for him. The court refused defendant's request for private counsel, indicating that defendant had not given any reason for the appointment of counsel other than the public defender.

• 1 The right to effective assistance of counsel entitles the person represented to the undivided loyalty of counsel (Glasser v. United States (1942), 315 U.S. 60, 69-71, 86 L.Ed. 680, 698-700, 62 S.Ct. 457, 464-65; People v. Ash (1984), 102 Ill.2d 485, 495, 468 N.E.2d 1153), and prohibits an attorney from representing conflicting interests or undertaking the discharge of inconsistent obligations. (People v. Washington (1984), 101 Ill.2d 104, 110, 461 N.E.2d 393; People v. Owens (1979), 69 Ill. App.3d 599, 601, 388 N.E.2d 170.) A conviction will be reversed without a showing of actual prejudice where counsel's conflict of interest arose from or involved a commitment to others (People v. Lewis (1981), 88 Ill.2d 429, 436, 430 N.E.2d 994, cert. denied (1983), 460 U.S. 1053, 75 L.Ed.2d 932, 103 S.Ct. 1501; People v. Stoval (1968), 40 Ill.2d 109, 113, 239 N.E.2d 441), but not where the conflict arose in another fashion. People v. Gardner (1977), 47 Ill. App.3d 529, 533, 362 N.E.2d 14; People v. Fuller (1974), 21 Ill. App.3d 437, 442, 315 N.E.2d 687, appeal denied (1974), 57 Ill.2d 605.

• 2 Defendant urges that we apply the per se reversal rule here because defendant once sued the public defender's office; however, it is not apparent that the claimed conflict of interest in the present case is the type which mandates reversal. (People v. Gardner (1977), 47 Ill. App.3d 529, 533, 362 N.E.2d 14.) In Gardner, the court declined to reverse where the alleged conflict of interest arose from defendant's dissatisfaction with appointed counsel's representation of the defendant in an unrelated civil suit, reasoning that the alleged conflict did not arise from or involve a commitment to others. (47 Ill. App.3d 529, 533, 362 N.E.2d 14.) In the present case, defendant merely expressed a general disinclination toward appointment of a public defender and, although given an opportunity to inform the court of the factual basis for a conflict of interest, did not do so. Here, there was no indication that defendant's dispute with the public defender's office involved the representation of another party or that it related to the present charges. The judge was not compelled to appoint private counsel simply because it had been the custom to do so in defendant's case. Defendant has not shown the existence of the type of conflict which would permit reversal without a showing of prejudice.

• 3, 4 An indigent defendant is not entitled to counsel of his choice (People v. Lewis (1981), 88 Ill.2d 429, 444, 430 N.E.2d 994; People v. Cox (1961), 22 Ill.2d 534, 537, 177 N.E.2d 211, cert. denied (1963), 374 U.S. 855, 10 L.Ed.2d 1076, 83 S.Ct. 1925), and the court may, in its discretion, appoint counsel other than the public defender only after a showing of good cause. (Ill. Rev. Stat. 1983, ch. 34, par. 5604; People v. Gardner (1977), 47 Ill. App.3d 529, 535, 362 N.E.2d 14.) As we have already observed, defendant gave the court no good reason why the public defender should not be appointed to represent him. Moreover, the public defender's office is not considered as an individual unit or entity, and neither personal allegiance or loyalty to the public defender's office requires that if one attorney employed by such an officer were disqualified by reason of a conflict of interest, no other attorney employed by that office could undertake the representation. (People v. Miller (1980), 79 Ill.2d 454, 461, 404 N.E.2d 199; People v. Tiller (1984), 130 Ill. App.3d 549, 553, 474 N.E.2d 756.) Our inquiry must proceed on a case-by-case basis, focusing on the individual attorney's obligations and the interests he is called upon to represent. (See People v. Miller (1980), 79 Ill.2d 454, 462, 404 N.E.2d 199.) We will not require the judge to speculate why defendant sued the public defender, nor guess which attorney previously represented defendant. Defendant did not direct his objection to the appointment of any particular assistant public defender and did not renew his objection at any time after counsel was appointed. Under these circumstances, the trial judge did not abuse his discretion in refusing to appoint counsel other than the public defender to represent the defendant.

Next, defendant contends that the court abused its discretion in ruling that his 11-year-old conviction for deviate sexual assault was admissible for impeachment purposes. The record discloses that in June 1973, defendant was convicted of robbery and sentenced to a term of 5 to 15 years' imprisonment; then, in September 1973, he was convicted of deviate sexual assault and sentenced to a term of 30 to 90 years' imprisonment, which he served concurrently with the sentence for robbery. Defendant was paroled on August 23, 1983, and the present offense occurred May 29, 1984. The court ruled, on defendant's motion in limine, that ...


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