SUPREME COURT OF ILLINOIS
525 N.E.2d 30, 123 Ill. 2d 1, 121 Ill. Dec. 224 1988.IL.399
Appeal from the Circuit Court for the Du Page County, the Hon. Edward W. Kowal, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
Together with co-defendants Andrew and Thomas Kokoraleis, the defendant, Edward Spreitzer, was indicted in the circuit court of Du Page County for the knowing murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(2)) and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10-2(a)(3)) of Linda Sutton. The circuit court granted the defendant's motion for a severance and accepted his waiver of a jury trial. After a bench trial, the defendant was found guilty of both charges. The State then requested a death penalty hearing and the defendant elected to be sentenced by a jury. Upon proof that the defendant was 18 years of age or older at the time of the offenses and that he had committed multiple murders, a statutory aggravating factor (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(3)), the jury found the defendant eligible for the death penalty. After hearing evidence in mitigation, the jury found that there were no mitigating factors sufficient to preclude a sentence of death. The circuit court imposed a sentence of death and 60 years in prison for aggravated kidnapping. The death sentence has been stayed (107 Ill. 2d R. 609(a)) pending direct review by this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603).
At the defendant's bench trial, the State presented the following evidence. The victim, Linda Sutton, was last seen alive at 11 p.m. on May 23, 1981, in Chicago. Her partially decomposed body was found seven days later in a field east of the Brer Rabbit Motel in Villa Park, Illinois. Her breasts had apparently been amputated, and her hands were cuffed behind her back. A coroner's autopsy established that her death was probably caused by several stab wounds in her chest.
In November of 1982, after an investigation by Chicago law enforcement authorities into a series of similar homicides, the defendant confessed to participating in the killing of Linda Sutton.
On November 5, 1982, the defendant spoke with Chicago Detective Thomas Flynn and Cook County Assistant State's Attorney Richard Beuke. He gave them a statement which contained the following facts.
In May 1981, the defendant was living in the Brer Rabbit Motel and working at Winchell's Donut Shop. While working there he met a man named Robin Gecht, who occasionally visited the shop, usually after midnight. On one particular night, when the defendant's car would not start, the defendant left work after his supervisor, who had promised to give him a ride into Chicago, failed to show up. Seeing Gecht in the area, the defendant asked him for a ride into Chicago, and Gecht agreed.
After they had been riding together in Gecht's van for some time, they decided to "pick up some whores." When they reached the corner of Broadway and Addison streets in Chicago, Gecht "took him to the back of the van and told him that when they found a whore they wanted to get . . . (the defendant) would get into the back of the van and stay there until he heard two taps to the side of the van, and when he heard the two taps, he was to get out of the van and come and help Gecht." Gecht said that they would "take care of the whore." He assured the defendant that the defendant would not "get into any trouble."
After the defendant had entered the rear of the van he heard Gecht speaking with someone whom the defendant described as having a black female voice. She entered the front part of the van. After a brief Discussion, overheard by the defendant, Gecht gave her "a couple of pills." The three then drove west for approximately 30 minutes. When the van stopped, the defendant heard two taps and he left from the rear of the van, meeting Gecht outside the front passenger door. Gecht was holding a pair of handcuffs and a knife. A black woman, whom the defendant later identified from a photograph as Linda Sutton, was sitting in the front passenger seat. Gecht pulled her out of the van, handcuffed her wrists, and then pushed her into a wooded or "bushy" area a short distance from the van.
After Gecht and Sutton had been in the bushes for five minutes, the defendant heard Sutton moaning and saying: "What are you doing to me? Why are you doing this?" Hearing Gecht whistle, the defendant went over to the bushes, where he saw that Gecht had severed one of Sutton's breasts and was "having sex" with the area where the breast had been severed. Sutton's severed breast was lying next to her on the grass.
Gecht told the defendant to get some wire from the van. The defendant returned from the van with the wire, which Gecht then used to sever Sutton's other breast. The defendant then "had sex" with the area where the other breast had been severed. After the defendant had finished, Gecht picked up the wire and the two severed breasts. Sutton was still in the bushes with her hands cuffed behind her back. The two men left the scene, and Gecht drove the defendant to the defendant's mother's home.
In a second statement, the defendant gave a differing version of these events. This second statement was given to Assistant State's Attorney Beuke on November 8, 1982. In this statement the defendant maintained that Andrew Kokoraleis was also present when Sutton was picked up. When Sutton began to scream, Kokoraleis punched her, knocking her into the rear of the van. As she continued to scream, Kokoraleis and the defendant "punched her several times in the face until she shut up." They then drove to the Brer Rabbit Motel and took her to the defendant's room. After she was gagged and handcuffed to the bedposts, Gecht, Kokoraleis, and the defendant each sexually assaulted her. At several points Kokoraleis stuck a "Coke" bottle into her vagina. Later they took her from the motel and killed her as the defendant had described in his earlier statement.
The defendant also testified in his own behalf. He admitted the truth of the statement of November 5, but retracted the statement of November 8. He admitted that he had, supposedly on Gecht's orders, removed Sutton's remaining breast with the wire he had taken from the van. He also admitted placing his erect penis in the wound on Sutton's chest where her breast had been, and leaving it there for some period of time shorter than five minutes.
The circuit court Judge found the defendant guilty of the murder and aggravated kidnapping of Linda Sutton.
The defendant raises only one challenge to his conviction. He claims that the prior involvement of Du Page County Public Defender Peter Dockery as a prosecutor in his case disqualified Dockery and all assistant defenders in his office from representing the defendant. The facts pertinent to this claim follow.
At the time of the defendant's indictment, the Du Page County public defender, Frank Wesolowski, was appointed to represent the defendant. Wesolowski assigned the defendant's case to Assistant Public Defender Edward Ward. On June 4, 1985, Ward advised the court that he had resigned his position as an assistant public defender but that he would continue to represent the defendant until a replacement had been hired. Two weeks later, on June 18, 1985, Wesolowski himself appeared on behalf of the defendant and informed the court that he would be assigning the defendant's case to Assistant Public Defender Carol Anfinson. Wesolowski also informed the court that he had hired Peter Dockery, formerly an assistant State's Attorney in the office of the State's Attorney of Du Page County, to replace Ward. According to Wesolowski, Dockery was "very much involved" in the decision to charge Spreitzer for the murder of Linda Sutton. Wesolowski then stated, and the assistant State's Attorney present agreed, that Dockery could not be assigned to the case because of a conflict of interest stemming from his former involvement in the case's prosecution.
Ward continued to represent the defendant by special appointment until September 23, 1985. On that date, Ward was allowed to withdraw and the public defender's office was reappointed to represent the defendant. Assistant Public Defender Anfinson then filed her appearance on the defendant's behalf. By early February 1986, prior to the start of the defendant's trial, Dockery had become the Du Page County public defender and his name began to appear as the defendant's attorney on pleadings filed by the defense. His name first appeared on such a pleading on February 12, 1986.
While the defendant claims he was deprived of the effective assistance of counsel by a conflict of interest, he has not made entirely clear the nature of the conflict being alleged. It is clear that the conflict is premised upon Dockery's personal involvement in the decision to charge the defendant, and not merely upon his employment as an assistant State's Attorney at the time the defendant was charged. However, the defendant has not made clear when Dockery's association with the public defender's office triggered the alleged conflict. At times, the defendant seems to be arguing that the conflict was created when Dockery was appointed to be an assistant public defender; more often he appears to be arguing that the conflict was created when Dockery became the public defender and the head of the public defender's office. He explicitly divides his argument into the claim that Dockery's status as the public defender disqualified "Dockery," i.e., the office of the public defender, from appearing on his behalf, and into the separate argument that Anfinson's status as Dockery's employee disqualified her from representing the defendant. The defendant also claims that the conflict was " per se " and requires no showing of "prejudice"; in the alternative he claims that weaknesses in Anfinson's performance as his attorney demonstrates that he was in fact "prejudiced" by her subliminal reluctance to attack her employer. Both sides agree that Dockery was disqualified from personally representing the defendant.
The prohibition against conflicts of interest is based upon the principle that "no man can serve two masters." Such service by a criminal defense attorney may implicate his client's constitutional rights. Persons accused of crime enjoy a sixth amendment right to the effective assistance of counsel. (Cuyler v. Sullivan (1980), 446 U.S. 335, 343, 64 L. Ed. 2d 333, 343, 100 S. Ct. 1708, 1715; Glasser v. United States (1942), 315 U.S. 60, 70, 86 L. Ed. 680, 699, 62 S. Ct. 457, 464-65.) Effective assistance means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations. (People v. Washington (1984), 101 Ill. 2d 104, 110; see also People v. Franklin (1979), 75 Ill. 2d 173, People v. Kester (1977), 66 Ill. 2d 162; People v. Stoval (1968), 40 Ill. 2d 109.) So much is clear. What has been perhaps less clear, both for ourselves and for the United States Supreme Court, is when and under what circumstances conflicting interests will mandate the reversal of a conviction.
This lack of clarity has partially stemmed from a confusing, and sometimes inconsistent, use of such terms as " per se conflict," "potential conflict," "possible conflict," "actual conflict," "prejudice," and "actual prejudice." To clarify these terms, and to set the stage for our analysis, we review the relevant law.
The term " per se " conflict does not appear in the United States Supreme Court case law, or for that matter, in cases from our sister jurisdictions. Instead, it was a term invented by our court in People v. Coslet (1977), 67 Ill. 2d 127, 133, to describe the holding in Coslet and our prior holdings in People v. Kester (1977), 66 Ill. 2d 162, and People v. Stoval (1968), 40 Ill. 2d 109. Subsequently, People v. Fife (1979), 76 Ill. 2d 418, and People v. Washington (1984), 101 Ill. 2d 104, have also applied a per se conflict of interests rule.
In each of these cases certain facts about a defense attorney's status were held to engender, by themselves, a disabling conflict. In every case the conflict was created by the defense attorney's prior or contemporaneous association with either the prosecution or the victim. (See People v. Washington (1984), 101 Ill. 2d 104 (defense attorney simultaneously served as a part-time attorney for the municipality where the defendant was being prosecuted); People v. Fife (1979), 76 Ill. 2d 418 (defense attorney simultaneously served as a special assistant Attorney General handling unemployment compensation cases for the State on a part-time basis); People v. Coslet (1977), 67 Ill. 2d 127 (defense attorney simultaneously served as the attorney for the administrator of the victim's estate); People v. Kester (1977), 66 Ill. 2d 162 (defense attorney had previously served as the assistant State's Attorney in the State's prosecution of the defendant and had made three court appearances on the State's behalf); People v. Stoval 91968), 40 Ill. 2d 109 (defense attorney and his firm simultaneously represented the defendant, the corporation whose store had been burglarized and the store's owner).) In each of these cases we have said that there is no need to show that the attorney's actual performance was in any way affected by the existence of the conflict. (See People v. Washington (1984), 101 Ill. 2d 104, 109, 113 (conflict found where defense attorney was obliged to cross-examine police officers employed by the municipality he represented, even in absence of allegation that cross-examination was in any way defective); People v. Fife (1979), 76 Ill. 2d 418, 422 (conflict found even though "[t]he defendant does not believe that counsel here was anything less than diligent"); People v. Coslet (1977), 67 Ill. 2d 127, 135-36 (conflict found even though question of attorney's performance is "not before us"); People v. Kester (1977), 66 Ill. 2d 162, 168 (conflict found despite absence of showing that "counsel did not represent the defendant in a competent and dedicated manner with complete loyalty to him"); People v. Stoval (1968), 40 Ill. 2d 109, 113 (conflict found despite absence of showing that "the attorney did not conduct the defense of the accused with diligence and resoluteness").) Another way of expressing the same result has been to say that, as to per se conflicts, the defendant need not show "prejudice" or "actual prejudice" in order to secure a reversal of his conviction. See People v. Stoval (1968), 40 Ill. 2d 109, 113.
The justification for treating these conflicts as per se has been that the defense counsel in each case had a tie to a person or entity -- either counsel's client, employer, or own previous commitments -- which would benefit from an unfavorable verdict for the defendant. The existence of such a tie created, in each instance, several problems. First, the knowledge that a favorable result for the defendant would inevitably conflict with the interest of his client, employer or self might "subliminally" affect counsel's performance in ways difficult to detect and demonstrate. (See People v. Washington (1984), 101 Ill. 2d 104, 113 (noting "possibility . . . that the attorney's duty of undivided loyalty to the accused was affected by contradicting obligations" to the municipality he served as a prosecutor, and "the subtle and subconscious pressure the suggested conflict may have had on counsel"); People v. Fife (1979), 76 Ill. 2d 418, 424 (noting "the possible, perhaps subliminal pressure a defense counsel who is also a special assistant for workmen's compensation cases might receive from the Attorney General's office"); People v. Kester (1977), 66 Ill. 2d 162, 167 (noting possibility that attorney "might be subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner," and that "[i]t might be contended, for example, that the advice and performance of court-appointed counsel in such a situation was affected by a subliminal reluctance to attack pleadings or other actions and decisions by the prosecution which he may have been personally involved with or responsible for"); People v. Stoval (1968), 40 Ill. 2d 109, 113 (noting that representation by an attorney who labors under a possible conflict of interests is "unfair to the accused, for who can determine whether his representation was affected, at least, subliminally, by the conflict").) A second consideration in per se conflict of interest cases has been the possibility that the conflict will unnecessarily subject the attorney to "later charges that his representation was not completely faithful." (Stoval, 40 Ill. 2d at 113; see also Kester, 66 Ill. 2d at 168 ("a lawyer who may have provided an able and vigorous defense with complete loyalty to the defendant is placed in the difficult and unfortunate position of being subject to unfounded charges of unfaithful representation").) In these situations, we have reversed convictions unless the record reflects that the defendant has been made aware of the conflict and has knowingly waived his right to conflict-free counsel. E.g., People v. Fife (1979), 76 Ill. 2d 418, 424.
In a second class of alleged conflicts, neither our court nor the United States Supreme Court has used the term per se, and have sometimes refused to reverse a conviction without a showing that the conflict actually affected the attorney's performance. These conflicts have generally, although not exclusively (see People v. Banks (1987), 121 Ill. 2d 36), involved joint or multiple representation of codefendants. (See, e.g., Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; People v. Jones (1988), 121 Ill. 2d 21; cf. People v. Robinson (1979), 79 Ill. 2d 147; People v. Spicer (1979), 79 Ill. 2d 173.) Treating multiple representation as creating a per se conflict would put an end to multiple representation altogether, since a "possible conflict inheres in almost every instance of multiple representation," and a per se rule would "preclude multiple representation even in cases where '[a] common defense . . . gives strength against a common attack.'" (Cuyler, 446 U.S. at 348, 64 L. Ed. 2d at 346, 100 S. Ct. at 1718, quoting Glasser v. United States (1942), 315 U.S. 60, 92, 86 L. Ed. 680, 710-11, 62 S. Ct. 457, 475 (Frankfurter, J., Dissenting).) In these situations, two distinct lines of analysis have been employed, depending upon whether the trial court was ever apprised of the possible or potential conflict.
If counsel brings the potential conflict to the attention of the trial court at an early stage, a duty devolves upon the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178.) If such steps are not taken, the fact of a " potential or possible conflict may deprive the defendant of the guaranteed assistance of counsel." (Emphasis in original.) (People v. Jones (1988), 121 Ill. 2d 21, 28.) While this rule is not per se (since it is the attorney's contemporaneous allegations of a conflict and not the mere presence of multiple representation which gives rise to the trial court's duty), reversal of a conviction under this rule does not require a showing that the attorney's actual performance was in any way affected by the purported conflict. In this sense, reversal for the trial court's failure to alleviate possible or potential conflicts does not require a showing of "specific prejudice." Holloway, 435 U.S. at 487, 55 L. Ed. 2d at 436, 98 S. Ct. at 1180.
However, if the trial court is not apprised of the potential conflict, then reversal of the conviction will only be had upon a showing that "an actual conflict of interest adversely affected" counsel's performance. (Cuyler, 446 U.S. at 350, 64 L. Ed. 2d at 348, 100 S. Ct. at 1719.) What this means is that the defendant must point to some specific defect in his counsel's strategy, tactics, or decision making attributable to the conflict. In this sense, proof of an actual conflict of interest requires proof of what we have sometimes referred to in our per se cases as "prejudice" or "actual prejudice." On the other hand, it is also clear that the defendant is never required to prove that his attorney's deficiencies did not constitute harmless error. He is not required, in other words, to prove that the conflict contributed to his conviction. This is what is meant by the statements that can be found in our cases and in United States Supreme Court cases to the effect that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." (Cuyler, 446 U.S. at 349-50, 64 L. Ed. 2d at 347, 100 S. Ct. at 1719; see also People v. Washington (1984), 101 Ill. 2d at 110, 112 ("the defendant need not show prejudice in order to justify a reversal of his conviction if the attorney representing him has an actual or possible conflict of professional interests" and "[w]hen an actual conflict has been shown, it is unnecessary to demonstrate prejudice in order to sustain a claim of violation of the right to the assistance of counsel").) Having hopefully clarified the meaning of key terms in our analysis, we proceed to the merits of the defendant's claim.
As we have stated above, we proceed on the assumption that the defendant is basing his claim only on Dockery's personal involvement in the decision to charge him, and not merely upon Dockery's employment as an assistant State's Attorney at the time of that decision. The latter claim would be utterly without merit. As the State cogently argues, it would be ludicrous to disqualify Dockery or the Du Page County public defender's office from handling any cases which were initiated during Dockery's employment as an assistant State's Attorney and which were still pending at the time he became an assistant public defender or at the time he became the public defender. Such a rule would have the undesirable effect of discouraging public defender's offices from hiring competent former prosecutors. Particularly in small counties where the entire criminal bar is itself not very large, a per se rule against assignment of an entire cohort of cases to a public defender who happens to employ a former prosecutor would be an administrative and financial nightmare. The defendant has not identified any interest which would justify such a rule.
Proceeding on the assumption that the defendant is only arguing for the existence of a conflict in those cases where Dockery had some personal prosecutorial involvement, we next consider the broad claim that a conflict was created at the time he was hired as an assistant public defender. We find this claim also to be without merit.
Insofar as Dockery's employment as an assistant public defender created any conflict at all, it could only have been because Anfinson might have been subliminally reluctant to attack the prior decisions or behavior of someone who was now her colleague and associate. In support of this argument, the defendant cites one of the ABA's Standards for Criminal Justice which provides that "[i]t is unprofessional conduct for a lawyer to defend a criminal case in which the lawyer's partner or other professional associate is or has been the prosecutor." (ABA Standards for Criminal Justice (The Defense Function, Standard 4 -- 3.5(d) (2d ed. 1986)).) A literal reading of Standard 4 -- 3.5(d) would preclude Anfinson from defending a case in which her associate, Dockery, had been the prosecutor.
We are reluctant to apply Standard 4 -- 3.5(d) to professional "associates" in a public defender's office, at least as a flat prohibition or per se rule. Our reluctance stems from several sources. First, we are mindful of the fact that we have declined to create a per se rule in the analogous situation of two public defenders from the same office who represent codefendants. (See People v. Robinson (1979), 79 Ill. 2d 147; People v. Spicer (1979), 79 Ill. 2d 173.) Absent a showing of special circumstances which might engender an actual conflict, we have trusted to the naturally adversarial instinct of a public defender to put his client's interests first.
The defendant counters that this case is more similar to our per se cases, since it involves a conflict between representation of interests which are irreconcilably divergent, those of the prosecution and the defense, rather than the possibly harmonious interests of codefendants. The defendant's argument misses the point. The asserted danger in the Banks-Robinson-Spicer line of cases was not so much that a single lawyer would attempt to represent the conflicting interests of two defendants as that a lawyer's loyalty to his client would be diluted by a conflicting allegiance to a fellow lawyer. Similarly, this asserted conflict also involves a choice between the interests of a client and the interests of a colleague. Unlike our per se cases, it does not involve a direct conflict between the interests of two opposing clients or between a present client and a past personal commitment. It is therefore more appropriate to apply the case-by-case analysis of the Banks-Robinson-Spicer line of cases rather than the per se approach of Stoval and its progeny.
Our Conclusion in this respect is not affected by the decisions in United States v. Kitchin (5th Cir. 1979), 592 F.2d 900, and State v. Morelli (1977), 152 N.J. Super. 67, 377 A.2d 774. In each of those cases, the prosecution, rather than the defense, invoked Standard 4 -- 3.5(d). In each case, the prosecution wished to prevent the representation of the defendant by an attorney associated in practice with a second attorney who had previously played a role in the prosecution of the defendant. Both of these cases were premised upon the prosecution's interest in preventing the revelation of confidential information to the defense. The State has not invoked such an interest here.
We therefore hold, that insofar as the defendant's claim is premised upon the mere employment of Dockery as an assistant public defender, it does not assert a per se conflict. We next consider whether a per se conflict was created by Dockery's elevation to the post of public defender.
We do not agree with the defendant that Anfinson's status as Dockery's employee created a per se conflict. Unlike the conflicts posed in our other per se cases, the asserted disjunction between Anfinson's duty to her client and her supposedly conflicting loyalty to Dockery is extremely speculative and remote. We are asked to believe that Anfinson would refrain from zealously representing her client because such representation might embarrass Dockery in some way. But Dockery's tie to the prosecution, a tie which was itself fairly tenuous, would be counterbalanced by his present status as the public defender. Presumably he was more interested in winning cases currently assigned to his office than in protecting the integrity of the decisions he had made when he was a prosecutor. Moreover, the subliminal reluctance felt by the prosecutor-turned-defense counsel in Kester towards attacking his own personal decisions would not apply to Anfinson, who would not have to attack anything she had personally done.
Since there was no per se conflict it remains to be determined whether there was a potential conflict brought to the attention of the court or an actual conflict demonstrated by the performance of counsel at trial. Clearly, the potential conflict was not brought to the attention of the court. Anfinson made no motions for appointment of separate counsel after Dockery became the public defender and never raised the issue in any other form.
The defendant's brief contains a number of conclusory allegations to the effect that Anfinson's performance at trial was hampered by an actual conflict of interest. However, the defendant fails to identify any specific deficiencies in Anfinson's performance which might have stemmed from the alleged conflict.
We therefore affirm the defendant's conviction, and move on to consider the alleged errors which relate ...