APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
530 N.E.2d 567, 175 Ill. App. 3d 874, 125 Ill. Dec. 409 1988.IL.1571
Appeal from the Circuit Court of Morgan County; the Hon. Richard J. Cadagin, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
Following a jury trial in the circuit court of Morgan County, defendant Bruce Armstrong was found guilty of murder, home invasion, and armed robbery. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1-(a)(1), 12-11, 18-2.) Judgment was entered on the verdict and the defendant was sentenced to concurrent terms of imprisonment of 50 years, 20 years, and 20 years, respectively.
In this appeal, defendant raises two issues. The first issue is whether defendant was denied the effective assistance of counsel because the attorney appointed as the public defender to represent defendant at the trial allegedly collected $15,000 from defendant's mother to represent defendant.
Defendant admits there is no per se conflict of interest. Defendant also admits there is no actual conflict of interest demonstrated in the record. The record does not disclose defendant's mother would have benefitted by defendant's conviction. There is also nothing in the record which indicates defendant was unaware of or disapproved of the fee arrangement. Moreover, the trial court appointed substitute counsel for post-trial motions, and post-trial counsel was unable to establish from the affidavits of defendant's mother and brother that those persons had knowledge of facts which would have been admissible as evidence to exculpate defendant. Nor does the record require a characterization of defense trial counsel's performance as either actual incompetence or as being of such low caliber as to reduce the trial to a farce or sham.
Nevertheless, defendant demands a new trial because trial counsel's conduct was "reprehensible" and "unethical." The professional ethics of defendant's trial counsel is a matter for the Attorney Registration and Disciplinary Commission (107 Ill. 2d Rules 751 through 774). Such out-of-court activity in no way requires a reversal of defendant's convictions in the absence of a showing of actual prejudice to defendant.
In support of his contention that reversal is warranted by counsel's activities in accepting the fee, defendant cites People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136, cert. denied (1984), 467 U.S. 1218, 81 L. Ed. 2d 371, 104 S. Ct. 2666. Williams, however, is distinguishable for several reasons. First, Williams alleged numerous inactions on the part of his trial counsel, including, but not limited to failure to move to suppress evidence seized from defendant's car, failure to object to testimony about a Canadian hair comparison study, failure to object to evidence defendant alleged was designed to show one of the co-defendants had accused her codefendants, failure to object to information given to the jury about the manner of reviewing the verdict, failure to object to evidence of good character of decedent, failure to demand a full evidentiary hearing to discover certain written statements allegedly made by a witness to the crime within a few days of the murder, and failure to move for a new trial. Secondly, Williams involved a capital punishment trial, with defendant's counsel defending three clients before two juries, simultaneously. Third, at the time the supreme court decided Williams, the court had disbarred defendant's trial counsel as a result of an unrelated proceeding for neglecting legal matters entrusted to him, for committing acts prejudicial to the administration of Justice, intentionally causing damage and prejudice to his clients, and commingling and converting funds. In Williams, the supreme court reasoned that although those errors alleged were not such plain error as to warrant review where no motion for new trial was filed and although the alleged failures on the part of trial counsel were perhaps errors in judgment which do not establish incompetency, in light of the disciplinary action the court could not characterize the failure of counsel to make the motion to suppress, et cetera, as professional misjudgment. Therefore, Williams is clearly distinguishable from the case at bar wherein the record discloses nothing to demonstrate defendant was actually prejudiced and prevented from receiving a fair trial as a result of trial counsel accepting the fee from defendant's mother.
The second issue raised is whether evidence defendant had previously served penitentiary time, and closing argument referring to this evidence, so unfairly emphasized defendant's prior bad acts as to necessitate a new trial. The State points out that no objection to the evidence and argument was made during the course of the trial. In addition, the post-trial motion failed to include this allegation of error. The references to which defendant objects involve testimony concerning statements made by defendant. This testimony was elicited on cross-examination by defense counsel from the State witnesses, in redirect examination of the same witnesses, or in the defendant's own testimony.
"The general rule is firmly established that evidence of prior convictions or other crimes is inadmissible and incompetent evidence, prejudicial to the defendant. (People v. Goodwin (1979), 69 Ill. App. 3d 347, 387 N.E.2d 433; People v. Hughes (1977), 51 Ill. App. 3d 985, 367 N.E.2d 485.) The obvious basis for that rule of excluding such evidence is its suggestion to the jury that the defendant has criminal tendencies, which suggestion may affect their determination of his guilt or innocence in the case before them. (People v. Gregory (1961), 22 Ill. 2d 601, 177 N.E.2d 120.) In Goodwin, we found reversible error where an arresting officer testified that the defendant asked to be let go, because he didn't want 'to go back to prison.' (See People v. Hawkins (1972), 4 Ill. App. 3d 471, 281 N.E.2d 72.) Those cases, however, did not involve exceptions to the general rule of inadmissibility. The exceptions were set forth in People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489[, 492]:
Evidence which tends to prove a fact in issue is admissible though it may be evidence showing that the accused has committed a crime other than the one for which he is being tried, and evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible though it may show the commission of a separate offense.'
Under the exceptions, references by a defendant to his prior prison time have been admitted into evidence as relevant to the defendant's intent (People v. Smith (1972), 6 Ill. App. 3d 259, 285 N.E.2d 460) and as probative of the defendant's actions in committing the crime (People v. Allen (1975), ...