APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
513 N.E.2d 34, 159 Ill. App. 3d 870, 111 Ill. Dec. 788 1987.IL.1141
Appeal from the Circuit Court of Cook County; the Hon. Robert Sulski, Judge, presiding.
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
This is an appeal by petitioner, William Cameron, from a trial court order granting the State's motion to dismiss his pro se petition for post-conviction relief. Petitioner and his codefendant, Darvin Meadows, were convicted of murder, armed robbery, and attempted murder after a jury trial. In December 1978, both men were sentenced to concurrent terms of 100 to 300 years for murder, 10 to 30 years for armed robbery, and 5 to 15 years for attempted armed robbery.
Both defendants were initially represented by separate private counsel who withdrew before trial. We note that Cameron's attorney had moved for severance before withdrawing. Thereafter Public Defenders Stuart Nudelman and John Friedman of the Cook County public defender's office were appointed to represent the defendants. Prior to trial, during trial, and after trial Nudelman made repeated objections to the joint trial and requested severance and/or appointment of separate counsel for the two defendants. Before trial, Nudelman requested permission to withdraw as counsel for either Cameron or Meadows and asked that the cases be severed on the basis that Meadows had made statements incriminating Cameron. In response, the State argued that the witnesses' testimony would be limited to Meadows' own statements about his own conduct. After hearing arguments, the trial court stated that even if references to Cameron were excised, it was not possible for the defendants to be tried together and granted the motion to sever.
Assistant public defender Nudelman again asserted that he could not effectively represent both defendants. The next day, the State asked the court to reconsider the severance motion and assured the court that it would not present any statement by Meadows that would incriminate petitioner Cameron. Based on this representation, the court denied the motion to sever. On subsequent court dates, Nudelman renewed his motions for severance and appointment of separate counsel, which were denied.
The convictions arose out of the armed robbery of a tavern on Chicago's near north side in November 1976. Two men, one carrying a sawed-off shotgun, entered the tavern and robbed the patrons and emptied the cash register. During the robbery, several patrons were physically abused. One Mexican customer, who appeared not to understand English, struggled with the robbers and was deliberately killed. Three customers followed the robbers as they fled outside and saw them get into a car. Three customers and the tavern owner identified Meadows as one of the robbers, and petitioner was identified by the owner and two customers and also was identified as the man with the gun.
Based on the witnesses' descriptions of the robbers and getaway car, Meadows was subsequently arrested while driving the car. After his arrest, Meadows was questioned by Investigator Daniel Darcy. Darcy testified that immediately after speaking with Meadows, he (Darcy) told Investigator William Bogue that the second suspect they were looking for was petitioner Cameron. During his testimony, Darcy did not state that he had received this information from Meadows. At this point, defense counsel Nudelman objected and moved for a mistrial because the State's sequence of questions to Darcy indicated that Meadows implicated Cameron, which the State had promised not to do. Nudelman also moved to withdraw from representation of both defendants, stating that he could not cross-examine Darcy on this matter because it would involve his other client's (Meadows') statements. The trial court denied the motions and said, "I don't know what inference the jury is going to be drawing from that, . . . but I think it was handled very poorly." Continuing his testimony, Darcy stated that he and another police officer drove with Meadows to a house pointed out by Meadows. A search warrant was obtained and a sawed-off shotgun and ammunition rounds were recovered therein. At the end of Darcy's testimony, Nudelman again moved for a mistrial, which motion was denied.
Investigator Bogue then testified that he arrested petitioner later that same day and, in searching Cameron's car with his permission, found documents with Meadows' name on them and a brown wallet, which was identified at trial as one taken from a tavern customer during the robbery. Nudelman again renewed his motion for a mistrial because of his inability to cross-examine witnesses. Another witness testified regarding petitioner's alibi. She stated that both men spent the evening at her residence until Meadows left at 10:15 p.m. followed by petitioner's departure at 10:35 p.m. The robbery occurred at 10:45 p.m. at a location approximately 5 1/2 miles away from the residence. After the jury found both defendants guilty, the court denied a defense motion for a new trial on the basis of, among other matters, the severance and conflict of interest issues.
Petitioner and Meadows on direct appeal to this court were represented by the Cook County public defender's office. In 1980, pursuant to Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, the public defender moved to withdraw, on the basis that there were no appealable issues, and requested that the Office of the State Appellate Defender be appointed counsel for defendants at their request. This court, after an independent review of the record as mandated by Anders, permitted the Cook County public defender to withdraw, denied appointment of new counsel, and affirmed the convictions of both defendants in a Rule 23 order.
Petitioner Cameron filed his pro se post-conviction petition in 1982. The petition alleged several constitutional defects: (1) he was denied effective assistance of counsel at trial because the same attorney represented both him and Meadows when their defenses were inconsistent and antagonistic; (2) his trial attorney had a conflict of interest; (3) he was denied his due process rights by denial of severance and use of codefendant's statement at the joint trial; and (4) he was denied effective assistance of appellate counsel because of the Anders motion and the failure of counsel to raise his trial counsel's ineffectiveness. The Office of the Cook County Public Defender was appointed to represent petitioner at the post-conviction hearing, which was not held until 1985. Petitioner's counsel did not supplement the pro se petition and did not argue the ineffectiveness of appellate counsel on direct appeal at the post-conviction hearing. After the hearing, the court granted the State's motion to dismiss the petition.
Petitioner, represented by a State Assistant Appellate Defender, is now appealing that dismissal on the grounds that: (1) he was denied effective assistance of counsel during the post-conviction proceedings where the petition alleged the incompetence of the public defender on his direct appeal, and the public defender's office represented him on the post-conviction hearing; (2) he was denied effective assistance of counsel on post-conviction because his attorney failed to raise the constitutional issue that his appellate counsel on direct appeal was ineffective by moving to withdraw pursuant to Anders where the trial record established that petitioner was denied effective ...