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05/08/87 the People of the State of v. Marion Holmes

May 8, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MARION HOLMES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

508 N.E.2d 405, 155 Ill. App. 3d 562, 108 Ill. Dec. 244 1987.IL.604

Appeal from the Circuit Court of Cook County; the Hon. Frank W. Meekins, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and LORENZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Following a jury trial, defendant Marion Holmes was found guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2(a)) and sentenced to 15 years' imprisonment. On appeal, defendant contends: (1) he was denied his constitutional right to counsel of his choice; (2) he was not proved guilty beyond a reasonable doubt; (3) the trial court erred in refusing to release discovery material to him in violation of his constitutional right to due process; (4) his attorney was incompetent at trial and laboring under a conflict of interest during a post-trial hearing; and (5) his sentence was excessive. For the reasons set forth below, we affirm.

The record discloses that on March 23, 1980, a McDonald's office in Chicago Heights, operated as a clearinghouse for the receipts of eight McDonald's restaurants, was robbed of $13,000 by two men. Defendant was arrested for the crime in January 1982 after his alleged accomplice, Ulrich Williams, implicated him in the robbery.

Prior to trial, the State filed a motion to remove Leo Holt, defendant's privately retained counsel, from representing defendant based on an alleged conflict of interest; Holt had represented Ulrich Williams, the State's key witness, in various criminal proceedings within 12 years of defendant's trial. Defendant filed a memorandum, alleging that no conflict existed and, if one did, he waived his right to conflict-free counsel.

At a hearing on the motion, Holt admitted that he had represented Williams in 1972 on an armed robbery charge, winning a dismissal at the preliminary hearing; in 1977-78 he represented Williams on a possession of stolen motor vehicle charge, wherein a guilty plea was entered; he possibly represented Williams on two misdemeanor deceptive practices cases in 1969; that five years prior to defendant's trial in 1984 he had had communications with Williams which would be covered by the attorney-client privilege; and that in the early 1970s he had represented Williams' brother. Following extensive argument on the motion, the court ruled that a per se conflict existed and, notwithstanding defendant's waiver of any conflict, it removed Holt from the case.

Defendant subsequently retained Isaiah Gant, who was recommended by Holt. Gant filed a motion to allow discovery of a statement made by Ulrich Williams in proceedings in the circuit court of Will County, which allegedly pertained to matters relevant to the armed robbery of the McDonald's office. The State objected to releasing the entire statement to defendant, contending that the material was irrelevant and would jeopardize on-going, unrelated investigations, as well as endanger the safety of certain police informants. Over defendant's objection, the presiding Judge, after asking the State to indicate which sections of the statement it felt should be excised, retired into his chambers with the assistant State's Attorney and conducted an in camera proceeding to examine the sections in question and to obtain an explanation of the State's objections to the discovery of those sections. Upon his return to open court, the Judge stated that the excised material involved investigations which had no facial relationship to the case at bar and granted the State's request to tender the statement to defendant with 12 sections deleted. The excised and unexcised copies of the statement were placed under seal with the court reporter's notes of the in camera proceeding to be made available for inspection by this court, if necessary.

At trial, Patricia Skalski, McDonald's bookkeeper, testified that between 10 and 10:30 a.m. on the day of the robbery a short, thin man entered the office and asked her if a car dealer next door was open. She replied she did not know and the man left. Shortly thereafter the same man returned and told her to sit down and be quiet or she would get hurt. Another man, taller and heavier than the first man, then entered, pulling a ski mask over his face as he did so. He asked Skalski if "Tony," another employee, had arrived yet, and she replied that he had not. After taking $10 from her purse, the men told Skalski to continue with her work, and the first man that had entered the office sat down next to her holding a gun.

At approximately 10:30 a.m., Sherry Van Kampen arrived. She entered the office carrying the nightly receipts from four of the eight McDonald's restaurants. The second man took her aside, tied her up, and put her into a doorless closet facing the wall. Two more persons subsequently entered the office and were tied up and put in the closet. Shortly thereafter the men also tied up Skalski, put her in the closet, and then left. Skalski estimated that the incident lasted 15 to 30 minutes.

Skalski later gave the police detailed descriptions of the robbers. At trial, during direct and cross-examination, the descriptions varied somewhat. She told the police that the first man who entered the office, allegedly defendant Holmes, was black, 40 to 45 years old, 5 feet 5 inches to 5 feet 6 inches, 190 to 220 (160 to 180) pounds and wore a black fur coat. She described the second man, allegedly Williams, as being a heavy-set individual, weighing 225 (180 to 200 pounds, 5 feet 4 inches to 5 feet 5 inches (5 feet 6 inches to 5 feet 7 inches), 35 to 40 (30 to 40) years old, and wearing tennis shoes and a tan or brown jacket. Skalski further testified that the second "heavyset" man did not have a gun, and, although she initially stated the first man did not "do anything with his face," she later stated that that individual wore a blue or a green mask. Skalski was unable to identify anyone from photographs shown to her after the robbery at the police station and, 1 1/2 years later, she could not identify defendant or Williams from two photographic lineups containing their pictures.

Sherry Van Kampen testified that on the morning of the robbery she delivered $15,000 in money receipts bundled in small sacks to the Chicago Heights office. When she entered the office, she laid the money on a desk. Subsequently, she was confronted by "a short [heavyset] man in a ski mask with a gun," whom she later identified as Williams. She also saw another man with a ski mask near Skalski, whom she later identified as defendant; she described him as "tall, black and armed with a gun." Defendant told Williams to bring the money receipts and Van Kampen's purse to him. Both men then stuffed the sacks of money inside their clothes. At defendant's direction, Williams took $100 from Van Kampen's purse, tied her up with some wire, and put her into a doorless closet which was approximately four feet away from Skalski's desk. Defendant then asked Van Kampen if her husband, Tony, was picking up more money and whether he was driving his blue car. Van Kampen responded affirmatively to both questions.

Van Kampen further stated that shortly thereafter, another employee entered the office, was tied up, and was placed in the closet facing the wall. The employee's brother appeared a little later and was also tied up and placed in the closet. While the two men waited for Van Kampen's husband to arrive, defendant paced back and forth and Williams stood near Skalski. Subsequently, defendant told Williams to tie up Skalski and to put her in the closet. Both men then went from the office to the hallway near the outside door, where they took their ski masks off. Van Kampen stated she had turned away from the closet wall, that both men were about 20 feet away from her, and that she could see them clearly as they stood by the door. She further testified that the tall man, defendant, turned to look back into the building, she saw his face clearly, and that the men remained by the doorway for about another minute while they waited for some dirt bike riders to leave the area outside the office. Van Kampen also observed defendant after he and Williams left the office while they casually walked by the office window, which "looked into the reception area," on their way to the parking lot. Thereafter, Van Kampen, who had loosened her bonds by this time, ran to the window with the intention of seeing the robbers' car. Failing to see the offenders drive off, Van Kampen then called the police. She later determined that the two men had taken $13,000.

When shown two photographic lineups 1 1/2 years after the robbery, which contained defendant's and Williams' pictures, Van Kampen identified both men as the robbers. Each lineup consisted of seven black and white pictures of men photographed from the "shoulders up," and one group contained a picture of defendant and the other a picture of Williams. Van Kampen picked out defendant from the first group and Williams from the second. At trial, she reiterated that defendant was not only the taller of the two robbers but that he was "substantially" taller; she stated that he was about three inches taller than herself or about six feet tall. During cross-examination, however, defense counsel, who was 5 feet 9 inches, asked defendant to stand next to him, and Van Kampen then estimated that defendant was 5 feet 6 inches. On cross-examination, Van Kampen also stated that she had not told the police investigators that the two robbers looked like brothers.

Ulrich Williams, appearing as a State witness, testified that he and defendant robbed the McDonald's office; Williams confessed to the crime 1 1/2 years after the robbery while in the custody of the Lake County, Indiana, police. He identified himself and defendant from the same two groups of photographs later shown to other witnesses. He stated that on the day of the robbery defendant met him at his home. They drove to a McDonald's restaurant located on Western Avenue in Chicago Heights to await the arrival of a third man. When the third man failed to appear 45 minutes later, defendant and Williams decided to go on without him. They proceeded to park their car behind the restaurant and defendant entered the office, which was approximately three doors away. Williams followed defendant into the office 8 to 10 seconds later; both men wore ski masks and were armed. Once inside the office, they waited for the cars bringing the restaurant receipts. Williams waited hidden on the floor behind a desk. When Sherry Van Kampen arrived, defendant confronted her and ordered her over to where Williams was positioned. Williams tied her up and put her in a closet. The men then took some money from Van Kampen's purse and four pouches of currency which she had brought with her. Two young men came in after Van Kampen; both were tied up by Williams and placed in the closet. After a police car drove into and out of the parking lot, both men decided to flee the scene. Skalski was then tied up and placed in the closet. As Williams and defendant prepared to leave the office, they removed their ski masks. Before they could leave, however, some men on trail bikes came into the parking lot, forcing them to remain inside the office a while longer.

Williams further stated that he was 37 years old at the time of the robbery, that he had known defendant since 1968 or 1969, and that he knew defendant's ex-wife and children. He also testified that he had been convicted of the misdemeanor offense of deceptive practices for which he received a $50 fine; a motor vehicle offense for which he received two years' probation; possession of a controlled substance, resulting in 1 1/2 years' imprisonment; and mail fraud, resulting in a one-year work release sentence, five years' probation, and a $25,000 fine, which he never paid. In exchange for his agreement to testify against defendant, the State told Williams it would recommend a six-year sentence for his participation in the armed robbery of the McDonald's office, which Williams ultimately received. Williams further stated that his family had been relocated and had received $2,325 from the State for the payment of one month's rent, security deposit, and plane fare.

Agent Thomas Pritchett, an employee of the Illinois Department of Law Enforcement, was also called as a witness for the State. He testified that he and his partner interviewed Ulrich Williams while he was in police custody in Indiana on November 23, 1981. Two days after their initial questioning of Williams concerning the McDonald's robbery, he confessed to participating in the crime and stated that defendant was his accomplice. Thereafter, Pritchett showed him two photographic lineups and Williams picked out defendant's and his own pictures. The agents showed the same photographic lineups to Sherry Van Kampen on December 8, 1981, and she also picked out defendant's and Williams' pictures. They then obtained a warrant for the arrest of defendant and, on January 23, 1982, arrested defendant. According to Pritchett, defendant was 5 feet 9 inches and weighed 178 pounds, and Williams was 5 feet 7 inches and weighed 190 to 200 pounds. (The record also discloses that defendant was 47 years old at the time of the robbery.)

Detective N. Galvan, a Chicago Heights police officer, testified on behalf of defendant. He stated that after the robbery occurrence Patricia Skalski gave a detailed description of the offenders, but Sherry Van Kampen did not, except for a statement that she observed two black males exiting the building after they pulled off their ski masks.

Finally, the parties stipulated if Detective John Schmidt, a Chicago Heights police officer, were to testify, he would state that Van Kampen had in fact given him a more detailed description of the offenders shortly after the robbery occurrence, i.e., that the taller of the two men, allegedly defendant, wore a tan coat, was between 35 to 40 years old, 5 feet 6 inches to 5 feet 9 inches tall, weighed 200 to 230 pounds, and that the two robbers "were similar in appearance, possibly brothers."

The jury subsequently found defendant guilty of armed robbery. Defense counsel, Isaiah Gant, filed a motion for a new trial to which defendant added an addendum. Both Gant and defendant alleged that defendant was deprived of counsel of his choice, Leo Holt, and that Gant rendered ineffective assistance as counsel for defendant at trial in failing to cross-examine Williams concerning the possibility that his brother, and not defendant, participated with him in the robbery. The court treated the motion and addendum as a single motion, and Gant argued both, stating that not only had defendant been deprived of counsel of his choice, but that the situation was aggravated by his own incompetence. The trial court denied the motion.

Thereafter, the court conducted a sentencing hearing. In aggravation, the court considered evidence of a murder charge pending in Illinois against defendant, an attempted armed robbery and conspiracy charge pending in Indiana, and defendant's conviction in 1979 for unlawful use of weapons for which he received supervision and was fined $180. In mitigation, defense counsel stated that defendant was married and had two children; he had been drafted into the United States Army and had been honorably discharged; he had been a police officer for the Chicago Heights police department; and he had worked for General Mills for the last 20 years.

After consideration of the foregoing, the court sentenced defendant to 15 years' imprisonment, especially noting the seriousness of the crime and that defendant was armed during its commission. I

On appeal, defendant first contends he was denied his constitutional right to counsel of his choice. Specifically, he argues that the trial court erroneously determined that his original counsel, Leo Holt, had a conflict of interest based upon Holt's previous representation of the State's principal witness in various criminal matters, which defendant could not waive. Defendant further argues that, in fact, no conflict existed "as there had been no concurrent representation of the defendant and the State's witness [Williams]," Holt had no "existing" relationship with Williams, and any confidences Holt may have received from Williams were not related to the armed robbery charge against defendant. Alternatively, defendant contends that if a conflict of interest existed, defendant had an absolute right to knowingly and intelligently waive his right to conflict-free counsel. Conversely, the State argues that the trial court properly disqualified Holt because his representation of defendant would have been prejudicial to both defendant and the State and that an acceptance or rejection of defendant's waiver was within the trial court's discretion.

Where defense counsel is shown to have conflicting professional commitments, prejudice is presumed and reversal of a conviction is mandated. If a reviewing court determines that such a per se conflict existed, a defendant need not prove any actual prejudice to obtain reversal of his conviction. (People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441.) As this court stated in People v. Owens (1979), 69 Ill. App. 3d 599, 603, 388 N.E.2d 170:

"Factors which indicate the existence of a commitment amounting to a per se conflict include the following: an inability to cross-examine the witness-client effectively due to the possibility of embarrassment to the client or pecuniary detriment to the attorney . . .; the inability to impeach the witness-client due to the attorney's possession of confidential information given him by the witness-client which is subject to a continuing attorney-client privilege . . .; whether an attorney-client relationship continues to exist between the attorney and the witness-client . . .; and, finally, whether the facts indicate the attorney is subject to 'subtle influences' which may have adversely affected his ability to defend his client . . .. Evidence of such a commitment becomes critical 'only if there exists some nexus between it and the representation of the defendant from which a possibility of restraint in that representation may be inferred.' Ehrmann, The Per Se Conflict of Interest Rule in Illinois, 66 Ill. Bar. J. 578, 579 (1978)." (Emphasis added.)

Even where there is no showing that an attorney did not conduct the defense of an accused with diligence and resoluteness, "sound policy disfavors the representation of an accused by an attorney with [a] possible conflict of interests. It is unfair to the accused, for who can determine whether his representation was affected, at least, subliminally, by the conflict. Too, it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later ...


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