APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
520 N.E.2d 907, 165 Ill. App. 3d 1016, 117 Ill. Dec. 556 1988.IL.64
Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
The petitioners, Dorothy Taylor (Dorothy) and her nephew, Andre Taylor (Andre), filed separate petitions in the circuit court of Cook County under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) and requested an evidentiary hearing on the following contentions: (1) trial counsel acted under a conflict of interest in jointly representing petitioners at trial; and (2) trial counsel's representation was ineffective. The court held a hearing, after which it denied both petitions.
On appeal, Dorothy contends that: (1) she was denied effective assistance of counsel at trial due to her attorney's conflict of interest which resulted from his representing both Andre and her at trial; (2) she was denied effective assistance of counsel at trial due to her attorney's failure to introduce certain evidence; (3) she was denied a fair evidentiary hearing on her post-conviction petition; (4) she did not knowingly and voluntarily waive her right to a jury trial; and (5) she was denied effective assistance of counsel at the post-conviction hearing.
Andre contends that: (1) he was denied effective assistance of counsel at trial due to his attorney's conflict of interest which resulted from his representing both Dorothy and him at trial; (2) he was denied effective assistance of counsel when his attorney (a) waived his right to be tried as a juvenile, and (b) failed to introduce certain evidence; and (3) he was denied a fair evidentiary hearing on his post-conviction petition. We reverse both Dorothy and Andre's convictions and remand this cause to the trial court for further proceedings.
On January 12, 1981, Derrick Montgomery (Montgomery), Cedrick Maltbia (Maltbia), Enicha Washington (Enicha) and Michael Simmons (Simmons) were at Patti Washington's apartment at 826 North Sedgwick in Chicago. At approximately 5:55 p.m., Dorothy and her sister Virgie Taylor (Virgie) entered the apartment. Virgie and Montgomery went into a bedroom to discuss Montgomery's returning her jewelry, which allegedly he had stolen from her the previous day. Montgomery refused to return the jewelry, and as they were leaving the bedroom, he struck Virgie. Dorothy gave Virgie a gun and told her to shoot Montgomery. Virgie complied and shot twice at Montgomery. Dorothy then opened the front door and admitted Virgie's 16-year-old son, Andre, who was armed with a sawed-off shotgun. A few minutes later, as Dorothy and Virgie were leaving the apartment, Dorothy ordered Andre to "kill everybody in the apartment, don't leave nobody." At trial Dorothy testified that Andre said those words; however, the trial court found that Dorothy said them. Dorothy also testified that when Andre entered the apartment, "he just went off."
Upon entering the apartment, Andre shot Maltbia twice, although Maltbia was unarmed. Andre next turned toward Simmons, who grabbed Enicha for protection, and pumped the shotgun in their direction. Dorothy then told Andre to spare Simmons and Enicha, so Andre turned to Montgomery and shot him once, although Montgomery was unarmed, was already shot once and was lying on the floor, wounded.
Dorothy and Andre were charged by indictment with murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), (a)(2)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). At trial, they were jointly represented by retained counsel, David R. Jordan (Jordan). Following a bench trial, both Dorothy and Andre were found guilty of all charges and sentenced to natural life imprisonment without the possibility of parole pursuant to section 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c)).
An assistant public defender jointly represented Dorothy and Andre on direct appeal to this court, contending that: (1) section 5-8-1(a)(1)(c) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c)), imposing mandatory natural life imprisonment, was unconstitutional, and (2) they were convicted improperly of both murder and armed violence. This court affirmed the convictions, but vacated the sentences, interpreting the word "shall" in section 5-8-1(a)(1)(c) of the Unified Code of Corrections as permissive rather than mandatory, thus giving the sentencing Judge discretion in imposing sentences. (People v. Taylor (1983), 115 Ill. App. 3d 621, 630, 450 N.E.2d 1256.) The Illinois Supreme Court reversed that finding and reinstated the natural life sentences. People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059.
Thereafter, two assistant public defenders, each separately representing each petitioner, filed a joint petition for post-conviction relief on behalf of Dorothy and Andre. Subsequently, Dorothy was represented by a private attorney appointed by the court. At an evidentiary hearing, trial counsel Jordan testified that he was surprised by Dorothy's testimony accusing Andre of giving the command to kill. The prosecution witnesses had testified that Dorothy gave the command to kill everyone, not Andre. In addition, as far as Jordan knew, it was the first time Dorothy had ever accused Andre of stating those words. Jordan further testified that at that point he thought the case was lost for both Dorothy and Andre and that he might have leaned over to Andre and indicated that Dorothy's testimony was extremely damaging to Andre. After the hearing, the court denied the petitions. Petitioners each appeal from that ruling. Dorothy is represented by an assistant appellate defender and Andre is represented by the assistant public defender who represented him at the post-conviction hearing.
Initially, we note that "[the] purpose of the post-conviction proceeding is to inquire into the constitutional issues stemming from the original conviction which have not already been adjudicated -- including those issues which have been directly appealed or could have been directly appealed." (People v. Perez (1983), 115 Ill. App. 3d 446, 450, 450 N.E.2d 870, appeal denied (1983), 96 Ill. 2d 547.) When a defendant directly appeals his conviction on a complete record, the judgment of the reviewing court is res judicata as to all issues which were or could have been raised. (People v. Adams (1972), 52 Ill. 2d 224, 225, 287 N.E.2d 695.) This waiver doctrine does not apply to issues raised in a post-conviction petition which stem from matters outside the record and thus could not have been brought on direct appeal or where fundamental fairness requires relaxation of strict application of the doctrine. (People v. Cobb (1986), 150 Ill. App. 3d 267, 270, 501 N.E.2d 699, appeal denied (1987), 113 Ill. 2d 578, 505 N.E.2d 356; People v. Goins (1981), 103 Ill. App. 3d 596, 598, 431 N.E.2d 1069, appeal denied (1982), 91 Ill. 2d 562.) In addition, when ...