APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
515 N.E.2d 213, 161 Ill. App. 3d 586, 113 Ill. Dec. 404
Appeal from the Circuit Court of Cook County; the Hon. John N. Hourihane, Judge, presiding.
Rehearing denied October 20, 1987 1987.IL.1383
PRESIDING JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN
The petitioner, who claims his name is Orlando Cambas and not Felix Sanchez, was charged by information in the circuit court of Cook County with the offenses of possessing with intent to deliver more than 30 grams of a substance containing cocaine and more than 30 grams of a substance containing methaqualone (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 1401(a)(2), (a)(9)). After a bench trial, the petitioner was acquitted on the methaqualone charge but found guilty on the cocaine charge. The trial Judge denied the petitioner's post-trial motion and sentenced him to six years' imprisonment. While his direct appeal was pending in this court, the petitioner filed the instant petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1). In his post-conviction petition, the petitioner alleged that he had been denied his constitutionally guaranteed rights to effective assistance of counsel and due process since his trial attorney had operated under a conflict of interest. The decision of the trial court was affirmed on his direct appeal, and following an evidentiary hearing, the circuit court denied his post-conviction petition. The petitioner has appealed the denial of his post-conviction petition, and we affirm.
The facts leading up to petitioner's conviction follow. Based upon information received from a reliable informant, Chicago police officers obtained and executed a warrant on January 28, 1983, to search apartment 401-E at 1016 West Balmoral, Chicago, Illinois, allegedly occupied by a male Latin known as Felix. One of the police officers executing the warrant, Fernando Correa, testified that he knocked on the apartment door and announced his office but that no one answered. According to Correa, the building security guard subsequently admitted the officers to the apartment. Correa stated that no one was inside the apartment at the time the police officers entered the apartment. However, soon after they had gained entry to the apartment, Correa testified, he heard a key in the front door and then saw the petitioner enter. Correa stated that he explained to the petitioner in Spanish the reason for their presence in the apartment, that he asked the petitioner if he was Felix Sanchez and that the petitioner said he was. Correa also said that the petitioner had stated that his name was Felix Sanchez later that evening when he was being processed at the police station. According to Correa, the petitioner told him that he had some cocaine in the kitchen and that he also had some pills at another apartment. Upon searching the apartment, the police officers found a bag containing a quantity of white powder. The officers also recovered a telephone bill and a rent receipt for the apartment, both in the name of Felix Sanchez. Correa testified that he then took the petitioner to the other apartment, located on Sheridan Road in Chicago, where the petitioner had told him he had additional pills. Correa further testified that a Guillermo Cueto was at that apartment at the time they arrived. Correa stated that Cueto told him that he knew Felix Sanchez and that Sanchez had left a package with him. Cueto then produced, Correa said, a sealed box which Correa discovered, upon opening it, contained a plastic bag filled with thousands of pills. Correa admitted that Cueto was not placed under arrest. The parties stipulated that the white powder recovered at the Balmoral apartment was cocaine and that the pills recovered at the apartment on Sheridan Road were methaqualone.
The petitioner testified through an interpreter at both his trial and at the hearing on his post-conviction petition. According to the petitioner, his name is Orlando Cambas and not Felix Sanchez. He also claimed that he only produced pieces of identification with the name Orlando Cambas, and he denied ever telling the police at any time that his name was Felix Sanchez. Petitioner denied renting or residing in the apartment on Balmoral. He stated that he was only going to visit his friend Felix Sanchez at the time the police were conducting the raid at the apartment and denied that he had used a key to enter the apartment. The petitioner also denied saying anything to the police about cocaine or methaqualone tablets. He further denied that he was taken to Cueto's apartment on Sheridan Road by the police officer on the evening of his arrest. The petitioner testified that he had met Cueto on a prior occasion through his friend Felix Sanchez and that, according to him, Cueto would have testified that the petitioner was not Felix Sanchez, that he did not reside in the apartment on Balmoral, and that he was not present when Cueto gave the box of methaqualone tablets to Officer Correa at the Sheridan Road apartment.
Attorney James Stamos, who represented the petitioner at his trial, testified at the post-conviction petition hearing. According to Stamos, he was originally retained by Cueto in late January 1983. His representation of Cueto, Stamos said, concerned the events that occurred at Cueto's apartment on January 28, 1983. Stamos said he was retained by the petitioner, whom Stamos knew as Orlando Cambas, approximately four weeks later. Stamos stated that he had informed the petitioner that he also represented Cueto but that he had failed to mention or explain any real or potential conflict which could arise because of the dual representation. Stamos admitted that Cueto faced criminal prosecution for possession of the methaqualone tablets, that Cueto had been cooperating with the authorities, and that, if required, he would have advised Cueto not to testify in favor of the petitioner because of Cueto's penal interest. However, when asked specifically what Cueto had told him about the case or what relationship, if any, existed between the petitioner and Cueto, Stamos invoked the attorney/client privilege.
The petitioner then offered the expert testimony of Juan Cayado, but the court rejected Cayado's testimony as irrelevant. The petitioner made an offer of proof which disclosed that Cayado, a private investigator and former police officer, would testify that he had read the record in this case and that, in his opinion, Cueto was the confidential informant in this case. Thereafter, as previously stated, the Judge presiding at the post-conviction proceeding denied the petition. The Judge found that the petitioner had failed to demonstrate that his attorney had labored under a conflict of interest which would have denied him effective assistance of counsel.
The petitioner contends in his appeal that attorney James Stamos, who represented him at trial, was operating under a conflict of interest which was not disclosed or explained to him. He claims that Mr. Stamos had received information favorable to his defense from Cueto and that, therefore, Mr. Stamos was ethically obligated to call Cueto as a defense witness, since Cueto's testimony would not only have impeached Officer Correa about the events of Cueto's Sheridan Road apartment, but would have completely exonerated the petitioner on the cocaine charge, since Cueto's testimony would also have shown that the petitioner was not Felix Sanchez. However, inasmuch as his attorney was simultaneously obligated not to call Cueto to protect Cueto's confidential disclosures, the petitioner claims that his attorney was, therefore, operating under conflicting obligations. The petitioner also claims that because of this conflict his attorney failed to cross-examine Officer Correa about Cueto's mysterious involvement in this case or why Cueto had not been arrested after delivering over 5,400 grams of methaqualone tablets to the police. He further contends that his attorney's failure to move for disclosure of the identity of the reliable informant whose information enabled the police to obtain the search warrant unmistakably demonstrates that Cueto was, in fact, the confidential informant in this case.
Summarizing from the above contentions, the petitioner argues that the existence of these conflicting obligations, his attorney's limited cross-examination of Officer Correa, and the failure of his attorney to move for disclosure of the confidential informant's identity demonstrate that his attorney failed to vigorously and effectively defend him. Accordingly, he asserts that the circuit court improperly denied his petition for post-conviction relief, and under the per se conflict-of-interest rule established in People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, this court must reverse his conviction. Alternatively, he argues that if this court does find that the per se conflict-of-interest rule applies to this case, this court should reverse his conviction, in any event, since the record clearly demonstrates that he was in fact prejudiced by his attorney's conflicting professional obligations.
The State, on the other hand, contends that the trial court properly dismissed the post-conviction petition since the record demonstrates that no conflict of interest actually existed here. The State argues that attorney Stamos' commitment to Cueto ended long before the petitioner's trial began, that the petitioner was aware that his attorney also represented Cueto at the time he retained him, and that the attorney's professional relationship with Cueto had no actual effect on his representation of the petitioner at trial and did not prejudice him. The State asserts that the petitioner's claim that Cueto was the confidential informant is mere speculation, and there is no evidence in ...