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01/13/87 the People of the State of v. Poliszczuk

January 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

VINCENT POLISZCZUK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

503 N.E.2d 799, 151 Ill. App. 3d 578, 104 Ill. Dec. 937 1987.IL.17

Appeal from the Circuit Court of Cook County; the Hon. Stephen Schiller, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. BILANDIC and STAMOS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Appellant, Vincent Poliszczuk, his co-defendant Bryan Magnus, and Jorge Carrion were arrested and charged with the offense of residential burglary. Prior to trial, Carrion's case was severed from that of the other two accused. Poliszczuk and Magnus proceeded to trial, in which they were represented as co-defendants by the same attorney. A jury verdict was returned finding Poliszczuk guilty on the basis of accountability, and he was subsequently sentenced to a four-year term of imprisonment.

On appeal, Poliszczuk presents four issues for review. Initially, he argues that he was denied effective assistance of counsel due to a conflict of interest which arose between himself and his codefendant, Bryan Magnus. He next contends that the initial police stop of his automobile for alleged minor traffic violations (failure to obey two stop signs) was improper as a subterfuge to a search based on mere suspicion and that all evidence obtained as a result of the stop should have been suppressed. Poliszczuk also questions whether he was proved guilty beyond a reasonable doubt. Finally, he maintains that his conviction was improper because suppressed evidence was admitted into evidence without objection by his counsel. We affirm the decision of the trial court.

The testimony at trial was that William McGarry and James Hennelly were Chicago police department burglary detectives, each with approximately 17 years of experience. At approximately 2 p.m. on July 11, 1984, they were driving northbound on Orchard Street in an unmarked car patrolling a residential area which had recently experienced an increase in burglaries. Poliszczuk was driving a car and Magnus was his passenger when Detective McGarry observed them coming out of a side street into Orchard Street without stopping at a clearly visible stop sign. As the car was pulling onto Orchard, Detective Hennelly noticed that there were speaker boxes labeled "Technics" partially covered with a drop cloth in the backseat of the car, and he became suspicious when he observed that the occupants appeared to be excited. The detectives further testified that Poliszczuk then failed to stop at a second stop sign at Orchard and Wrightwood. Poliszczuk denied violating any traffic regulations.

The detectives followed Poliszczuk until he turned onto Halsted Street where they stopped the car. Poliszczuk and Magnus got out of the vehicle and were immediately separated and questioned by the detectives about their failure to stop at the stop signs and also about the speakers in the backseat. Poliszczuk and Magnus both stated that the speakers did not belong to them but that they were moving them out of an apartment they were painting. The detectives then ordered Poliszczuk to open the trunk of his car where the officers observed more stereo components. The detectives testified that at this time the defendants offered to take the officers back to the apartment where they were working, located at 630 West Arlington. Poliszczuk disputed this; he maintained that the officers insisted that they return to the apartment.

Upon returning to the apartment building, Poliszczuk took Detective McGarry to apartment number 9, where McGarry observed that the doorjamb was splintered and appeared to be forced open; he also noticed that there were no personal effects in the apartment and that it was in the process of being redone. Poliszczuk and Magnus were both arrested at this time and taken to the police station.

The detectives related that at the police station they questioned Magnus and Poliszczuk and that both defendants made statements concerning the burglary. According to Detective Hennelly, Magnus admitted that he and Carrion burglarized apartment number 3 at the West Arlington address and carried the stolen property to the back porch of apartment number 9, where Poliszczuk agreed to help them take it down to his car and transport it to another location. Magnus further stated that the reason that the door to apartment number 9 was kicked in was to give the impression that apartment number 3 had been burglarized as well. Detective McGarry testified that Poliszczuk admitted that he was initially against participating in the burglary but agreed later to help carry the property to his car and transfer it to another place. Poliszczuk and Magnus both denied making any statements to the detectives.

The defendants' counsel filed motions asking the court to quash the arrest and suppress the evidence. At a pretrial hearing considering these motions, the trial court found that at the time of the stop, the detectives had no knowledge of the commission of any crime, but that the interdiction was nevertheless proper because of the traffic violations. Focusing on the plain-view doctrine, the court held that the officers had the right to question the defendants about the speakers and that the evasive answers they gave raised a reasonable suspicion in the minds of the detectives that a crime might recently have been committed; hence it was reasonable for the officers to return to 630 West Arlington to inspect the scene. Therefore, the motion to suppress the evidence was denied with respect to the speakers found in the backseat of the automobile. However, the trial court sustained the defendants' motion to suppress the evidence discovered in the trunk of the car.

As previously noted, Carrion's case was severed from that of Poliszczuk and Magnus; the latter two, however, were represented as codefendants by the same attorney. Their defense consisted of attempting to prove that neither of them had the requisite intent to commit the offense, as exemplified by Magnus' testimony that he entered apartment number 3 with John Smith, a building contractor who hired them to work on apartment number 9, only after Smith told him that the tenant owed back rent and that Smith needed assistance in removing some property. According to Magnus, Smith used his keys to enter the apartment, after which Magnus and Carrion carried the property to apartment number 9 where Magnus asked Poliszczuk to help him and Carrion transfer the property to Poliszczuk's car. Poliszczuk testified that he agreed to help Magnus and Carrion move the goods to another location. Both Magnus and Poliszczuk stoutly maintained that they did not know that the property they were conveying was stolen and that while doing so they were stopped by the two burglary detectives.

Both defendants concurred in their testimony that Poliszczuk never entered apartment number 3. Defense counsel, however, stated in his opening and closing remarks to the jury that both defendants entered apartment number 3. Poliszczuk argues that this failure to distinguish his actions from Magnus' constitutes a denial of effective assistance of counsel due to a conflict of interest. The State maintains, however, that even if a conflict of interest did exist, Poliszczuk waived any claims of prejudice in his being represented as a co-defendant with Magnus by the same attorney by proceeding to trial after being fully admonished of the potential problems inherent in such a situation.

The right to effective assistance of counsel assured by the sixth amendment is indeed subject to waiver. (Glasser v. United States (1942), 315 U.S. 60, 71, 86 L. Ed. 680, 699-700, 62 S. Ct. 457, 465; People v. Washington (1984), 101 Ill. 2d 104, 114, 461 N.E.2d 393.) A court will, however, indulge every reasonable presumption against waiver of a constitutional right. (Brewer v. Williams (1977), 430 U.S. 387, 404, 51 L. Ed. 2d 424, 439, 97 S. Ct. 1232, 1242; People v. Washington (1984), 101 Ill. 2d 104, 114, 461 N.E.2d 393; People v. Fife (1979), 76 Ill. 2d 418, 423, 392 N.E.2d 1345.) In order to ascertain whether there has been an intelligent waiver of the right to the assistance of counsel, the court should look to the circumstances surrounding the claimed waiver and consider the background, experience, and conduct of the accused. (Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019; People v. Washington (1984), 101 Ill. 2d 104, 114, 461 N.E.2d 393.) Moreover, whether there is a proper waiver should be determined by the trial court, and it is fitting and appropriate for that determination to be on the record. Glasser v. United States (1942), 315 U.S. 60, 71, 86 L. Ed. 680, 699, 62 S. Ct. 457, 465.

The record in this instance clearly illustrates that Poliszczuk waived any claims of prejudice as to joint representation. We recognize that "it is difficult, if not impossible, to satisfactorily advise a defendant of the subtle effect which a conflict of interests may have upon . . . counsel's representation." (People v. Meyers (1970), 46 Ill. 2d 149, 152, 263 N.E.2d 81.) Nevertheless, the trial court anticipated the potential for such a conflict and clearly admonished Poliszczuk of the ...


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