SUPREME COURT OF ILLINOIS
520 N.E.2d 325, 121 Ill. 2d 21, 117 Ill. Dec. 164 1988.IL.188
No. 62862. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Romie J. Palmer, Judge, presiding. No. 62936. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Robert J. Collins, Judge, presiding.
JUSTICE RYAN delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN
In an information filed in the circuit court of Cook County, defendants in cause No. 62862, Clifton Harris and Marvin Jones, were charged with armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2). Following a bench trial at which Harris and Jones were jointly represented, they were convicted and sentenced to nine years' imprisonment. The appellate court affirmed in a Rule 23 order (87 Ill. 2d R. 23; 136 Ill. App. 3d 1157 (unpublished Rule 23 order)), and we allowed Harris' petition for leave to appeal (103 Ill. 2d R. 315(a)). In cause No. 62936, defendants Kenneth Ross and Mark Mosley were charged by indictment in the circuit court of Cook County with three counts of murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) and one count of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2). Following a joint jury trial, defendants were convicted and sentenced to 40 years' and 35 years' imprisonment, respectively. The appellate court reversed (138 Ill. App. 3d 1089), and we allowed the People's petition for leave to appeal (103 Ill. 2d R. 315(a)).
These consolidated causes present the question whether joint representation of defendants establishes a sixth amendment claim of denial of the effective assistance of counsel when it is alleged that the admission of inculpatory and inconsistent pretrial statements from each defendant created a conflict of interest.
At trial in No. 62862, Harris and Jones were represented by Marijane Placek and Thomas Verdun, both attorneys from the Cook County public defender's office. The two attorneys worked as a team on Harris and Jones' defense. It is not disclosed why each attorney did not represent an individual defendant. It should be noted that such joint representation has been severely criticized. (See United States ex rel. Cole v. Lane (7th Cir. 1985), 752 F.2d 1210, 1217 n.9.) At trial, the prosecutor presented testimony from the victim, the arresting officers, and the assistant State's Attorney who took defendants' statements shortly after their arrest. Assistant State's Attorney Brandwein testified to the contents of Jones' statement as follows:
"At that time he told me he was in a bar with the victim, Susan Taylor. That they left the bar and they went to a park where he knew his friend Mr. Harris would be going. He stated at that time while he was in the park Mr. Harris came up with a gun and took and had Miss Taylor take off her jewelry and her money.
He stated after she took off her jewelry and her money, that he picked up the jewelry and the money and he ran and left the defendant Harris with Miss Taylor."
Brandwein then testified as to defendant Harris' comments:
"He stated he was in a bar with Mr. Jones and that they met the victim, Susan Taylor, in the bar. He stated that they then left to buy some drugs and that they went to a park. He stated at that time he paid for some drugs and then wanted his money back and he demanded his money back and Miss Taylor refused to give him his money and she went for her waistband. He stated at that time he grabbed her and pulled out a gun from Miss Taylor's waistband. He took back his money and he ran, leaving Defendant Jones with Miss Taylor."
At that point in the testimony, the court, noting the factual inconsistencies between the two statements, called them to defense counsel's attention. Mr. Verdun then commented, "I can see the Court's point, and I think at this point I don't think the gravity of the conflicts in the statements were clear to me before that." The prosecutor then requested defense counsel to explain the precise nature of the conflict. Mr. Verdun responded, "Well, Judge, I think the conflict, if both defendants were to testify, is inherent in their statements . . .." After noting that "[u]nder this circumstance, that statement by this police officer [ sic ] could be construed so that as to Harris it could be exculpatory and as to the other defendant it could be inculpatory," the court concluded that "[m]aybe there is no problem but I think it is close enough that we should examine it only for the purpose of trying to save a little time."
The appellate court held that defendants had failed to establish that an actual conflict of interest was present as to either Jones or Harris, citing People v. Washington (1984), 101 Ill. 2d 104, 112. The court noted that Jones, in his testimony at trial, had denied making the statement testified to by the assistant State's Attorney and had adopted Harris' version of events. The court found that assertions by Harris that Mr. Verdun and Ms. Placek "had a problem" with the joint representation ...