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01/27/89 the People of the State of v. Emmaline Williams Et Al.

January 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EMMALINE WILLIAMS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

538 N.E.2d 564, 182 Ill. App. 3d 598, 131 Ill. Dec. 189

Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.

Rehearing Denied June 13, 1989. 1989.IL.85

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. COCCIA, J., concurs. PINCHAM, J., Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Following a joint bench trial, at which defendants were represented by the same attorney, Roy Williams (defendant) was convicted of rape and sentenced to a 19-year term, and his wife Emmaline Williams (codefendant) was convicted of indecent liberties with a child and sentenced to a 12-year term. In these consolidated appeals defendant and codefendant contend that their joint representation was improper due to their counsel's conflict of interest; that counsel was incompetent; and that improper hearsay evidence was presented at trial. Codefendant raises an additional argument concerning the sufficiency of the evidence to sustain her conviction.

The complainant was 13 years old in 1982 when she was adopted by defendant and codefendant. In 1984 she was living with them and several other children in a Chicago house. Complainant slept in an upstairs bedroom while defendant and co-defendant had a bedroom on the first floor of the residence.

Complainant testified that about 9 p.m. on a date in April 1984 complainant was in her bedroom when co-defendant called her and asked her to come downstairs. When complainant did, co-defendant asked complainant to do her a favor as they both went into the first-floor bedroom. There complainant saw defendant lying naked on the bed. Co-defendant then obstructed complainant's exit from the bedroom, removed complainant's clothes and forced complainant onto the bed, where defendant began to sexually molest complainant as co-defendant disrobed. At one point complainant was lying on the bed between defendant and codefendant. Defendant eventually got on top of complainant and raped her as codefendant held one of complainant's hands telling complainant that she loved her. Co-defendant then sexually molested complainant both in the bedroom and when complainant went into the bathroom shortly thereafter.

Complainant told the accused's 19-year-old daughter of the occurrence but the latter did not believe her. Two weeks after the incident she addressed a letter, which was presented at trial, to her former foster mother explaining the occurrence, but she did not mail it. In June 1985 complainant left her adoptive parents' home after codefendant beat and tried to sexually molest her, and she returned to the home of her former foster mother, who notified police. She then gave police the letter.

Chicago police officer Joseph Lux investigated the matter and on the evening of June 17, 1985, he arrested co-defendant at her home upon serving her with a search warrant. After he advised co-defendant of her Miranda rights, she waived those rights and told Officer Lux that she was present when defendant had consensual intercourse with complainant. Officer Lux then arrested defendant, and he too waived his Miranda rights. Defendant told Officer Lux that co-defendant had brought complainant to their bedroom while he was lying naked on the bed. Codefendant instructed complainant to remove her clothes, then both held complainant down on the bed by her arms so defendant could have sexual intercourse with her. Thereafter both forcibly fondled complainant. The substance of this statement was reduced to writing and defendant signed it.

The police then confronted co-defendant with defendant's statement. Co-defendant told the officer that those events must have occurred if defendant said that they did.

Co-defendant testified. She denied that the events recounted by complainant occurred. She also denied making any oral incriminating admissions to police.

Defendant testified. He denied having sexual relations with complainant, and he denied that he knew the contents of the written statement he signed. First, he claimed that Officer Lux told him that codefendant made a written statement, that no one would believe him because he was a black man and that he would receive a substantial sentence. However, if he confessed, Lux told him that he could receive probation. Then an assistant State's Attorney presented him with a written account, which defendant did not read or know its content before he signed, although he told the latter that nothing had occurred with complainant.

Both defendant and co-defendant contend that representation by the same counsel during their joint bench trial was improper because a conflict of interest existed. Co-defendant claims that this conflict was manifested by the introduction of defendant's statement without restriction, which implicated her even though repudiated by defendant. She also maintains that because of their joint representation she was not able to fully cross-examine defendant without using information acquired in counsel's professional responsibility to defendant. Defendant claims that prior to trial the court could not have known that a conflict existed with codefendant. Defendant asserts, however, that when codefendant's statement implicating him in the offense was introduced, a conflict was evident, yet the trial court did not inquire into the conflict or admonish both accused that they had a right to be represented by counsel with undivided loyalties.

In People v. Jones (1988), 121 Ill. 2d 21, 250 N.E.2d 325, the Illinois Supreme Court considered in consolidated appeals "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." (121 Ill. 2d at 24.) In neither consolidated case in Jones, as here, did defense counsel indicate to the trial court that any potential conflict might exist. One of the consolidated cases involved the appeal of defendant Harris who along with a co-defendant Jones was jointly tried for armed robbery. Both defendant and co-defendant made pretrial statements; Jones' statement implicated Harris and exculpated himself while Harris' statement exculpated both. At trial Jones denied making his pretrial statement and adopted Harris' version of events. The supreme court noted that Jones had repudiated his earlier inculpatory statement and asserted a claim consistent with Harris' position stating, "Counsel for Harris had no reason to cross-examine Jones when he testified favorably to Harris." (121 Ill. 2d at 31.) Harris' conviction was thus affirmed. In the second consolidated case, defendants Mosley and Ross were jointly represented at trial and both had made pretrial statements inculpating both in murder and armed robbery. Mosley repudiated his statement at trial as coerced, but Ross did not testify. The supreme court found that no hostility existed between defendants because Mosley repudiated his confession and Ross did not have to impeach Mosley because no amount of impeachment could have produced a more favorable result. (121 Ill. 2d at 33.) However, since Ross did not testify and his pretrial confession implicated Mosley, the supreme court concluded that his confession went to the jury unrepudiated and unimpeached, thereby violating Mosley's right to confrontation. "[When] Ross declined to testify, there was no way that Mosley's attorney [who also represented Ross] could effectively deal with the implicating statement." (121 Ill. 2d at 34.) The supreme court then affirmed Ross' conviction but granted Mosley a new trial.

We believe that Jones negates the claims in the present consolidated appeals that their counsel operated under a conflict of interest. Co-defendant testified and denied making any incriminating statement, and defendant claimed that his written admission was not intelligently made or true. Consequently, we do not believe that defendant or co-defendant can establish a meritorious claim that their joint representation was improper because each could not cross-examine the other as to the respective pretrial statements. There was no conflict of interest in the joint representation of which the trial court was required to sua sponte advise defendant and codefendant.

Both defendant and co-defendant advance claims that they were denied effective assistance of trial counsel. Defendant contends that his counsel was ineffective because counsel (1) failed to question the voluntariness of his confession; (2) failed to prepare adequately for trial by not reviewing the discovery materials tendered by the State, specifically, the letter written by complainant to her foster mother; (3) failed to object to the letter as hearsay; (4) failed to move for a severance when co-defendant made a statement implicating him; and (5) failed to prepare adequately for trial by failing to interview witnesses who could describe complainant as an inveterate liar. Co-defendant makes similar claims of ineffectiveness based on their counsel's failure to file pretrial motions to suppress statements, to seek a severance, to object to introduction of complainant's letter, to object to certain testimony elicited from the witnesses by the State, or to make any investigations of complainant's medical and school records or call into question her veracity.

To establish ineffectiveness of trial counsel defendant must show that counsel's conduct fell below an objective standard of reasonableness under prevailing professional norms and that defendant was so prejudiced by counsel's deficient performance that he was denied a fair trial. (People v. Harris (1988), 123 Ill. 2d 113, 155, 526 N.E.2d 335.) In the present case we believe that many of the claimed deficiencies were merely questions of trial strategy. First, a severance could be granted upon a showing of antagonistic defenses. (People v. Harris (1988), 123 Ill. 2d 113, 155, 526 N.E.2d 335.) As we have previously noted, the defenses in this case were not antagonistic; both accused denied that the sexual incident ever occurred. Moreover, the questions of pretrial motions to suppress each accused's statements may well have been a question of trial strategy. See authorities set forth in People v. Fernandez (1987), 162 Ill. App. 3d 981, 987-88, 516 N.E.2d 366.

There is nothing in Officer Lux' trial testimony to suggest any basis to suppress the statements of defendant or codefendant, and the only question which could have been raised was the credibility of the witnesses. Counsel may well have thought such motions would have been futile. (People v. Hall (1986), 114 Ill. 2d 376, 408, 499 N.E.2d 1335; People v. Hancock (1983), 113 Ill. App. 3d 564, 574, 447 N.E.2d 994.) Moreover, there was the possibility that had defendant and codefendant testified in a pretrial setting something might have occurred that would have been used to impeach them at trial (see People v. Sturgis (1974), 58 Ill. 2d 211, 317 N.E.2d 545) particularly in the case of codefendant who denied making any such statement.

Moreover, we fail to discern any lack of trial preparation by defense counsel that prejudiced defendant and codefendant. The case was quite simple and direct. The case involved complainant's testimony and Officer Lux' testimony about codefendant's oral statements and defendant's oral and written statements as opposed to the denials of defendant and co-defendant at trial of these matters. We do not believe that any conduct by defense counsel which is not called into question on appeal affected the outcome of their trial. Consequently, we do not believe that ineffective assistance of counsel has been established.

Defendant and co-defendant argue that reversible error occurred when complainant's undelivered letter was allowed into evidence detailing the crimes with which they were charged. This letter was merely cumulative in nature to complainant's testimony. That testimony was corroborated as to defendant by his oral and written admissions and corroborated in significant part as to co-defendant by the latter's oral admissions to police. Thus, even if the admission of the letter can be questioned, defendant and co-defendant cannot claim prejudice. See People v. Silvertri (1986), 148 Ill. App. 3d 980, 987, 500 N.E.2d 456.

Co-defendant urges that she was not proved guilty beyond a reasonable doubt. Viewed in the light most favorable to the prosecution, the evidence does not compel a contrary result. People v. Bedony (1988), 173 Ill. App. 3d 613, 618, 527 N.E.2d 916.

In a footnote contained in her brief co-defendant makes an abridged reference to the length of her sentence and notes that this court can modify an inappropriate sentence. However, we do not believe that an adequate ground exists for this type of action. People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 334.

Accordingly, the judgments of the circuit court are affirmed.

Judgments affirmed.

APPENDIX

THE VICTIM, A.W.'S STATEMENT PEOPLE'S EXHIBIT NO. 1

"April of 1984 -- that night -- blue pants, with a light green top -- exactly 12:15 -- when I left the room 3:15.

Wednesday -- The day before I was suspended from school. It was on Thursday when I was suspended for fighting.

She was on the toilet when she called me in there. It was the same night she bought me my Easter clothes and a coat. That night she called me down she was drunk too. She said A.W. I want you to do something I never asked anybody to do before. Please A.W. she said. Then said, 'Moma love you.' I was at the age of 13 in the 8th grade. She said will you do it. But she didn't tell me what. I said o.k. I'll do it. Then she got up flushed the toilet, and she said now come with me. She opened her bedroom door and daddy was just lying there naked with his clothes off. I looked. She said don't be scared we won't hurt you. I said 'What.' She said take off your clothes. I was holding my shirt greenish like, real light. I was in shock. I couldn't believe what had happened. I really thought I was going crazy. Then she said that's alright. I even tried to lie and said I am on my menstruation. She said that's o.k. I tried to open the door and get out of there but she held the door and down went my clothes. Before she told me to have sex with her husband she told me to roll up my I had. Then she said now come over here. I didn't know what the hell I was doing. I wish it hadn't happened. Then I laid down and he told me to open my legs wide open and he rubbed some vaseline in my vagina. I hated it. I even hated him. And then it happened. I wouldn't open my legs open wide enough. That's all she kept saying try to bust her cherry. Then about 12:40 she said I have to go to the washroom. I'll be back. When she came back she bought some Pepsi back with her. She asked me did I want any I said no. Then she said, 'A.W. try and get something on the radio.' She said anything you like. I turned the radio to WJPC. Lou Rawls was on singing You Going to Miss My Loving. Then she instructed me to lay back down. That time she was holding my arm while he was sucking on my breast. Then she said don't be so hard on her. Just play with her. And I still wouldn't act right. Then he asked me didn't it feel good. I said no. He said we're going to be nice to you. Then she said over the weekend I will let you sleep longer. I didn't say anything. Then he said me and your moma we love you. We're still going to buy a typewriter for you. Then she said when we move to Martin, Arkansas we're going to have our own barbeque place and we'll pay you for working there. I didn't say nothing. A.W. if I die would you take care of daddy for me. I said yes. But I knew I won't. I was just scared. Then she said A.W. you not doing it right. Then she made me move over. While him and her did it. Then they stop and he said some of those boys out on the street are not going to be nice as I am. Then she said daddy can't get you pregnant. He had an operation. I still didn't say anything. Then they said again A.W. we love you. Then she said are you ready to go to bed. I said yes I am. Then she told me to put on my clothes and I went to the bathroom. She came with me. Then she said A.W. thank you. She hugged me. Me and her were both naked. She said A.W. you have a beautiful shape for your age. She started to feel on me and I moved from her. She said you don't think I am a freak do you. I said no. Then she said I am so thankful you did that for me. Then she kissed me and said I am going to bedroom. Goodnight.

I went to bed crying. I started to run away. Then I said no I can't. I have no where to go. The next morning I got up ready for school. She came upstairs. She said A.W. if you want to I'll keep you home and let you sleep. I said I'll go to school. She said A.W. you promise you'll never tell nobody what happened last night. I said I promise. She said thank you. I still love you. She said I am going to try to get that typewriter for you. Then me and the other kids at breakfast. I went to school and got into a fight with this girl and got suspended for 2 days. The assistant call home he said I'll be suspended for 2 days -- Thursday and Friday. I came home. She said o.k. A.W. can go over Mrs. Gross he's mother house with Karen. Because both of them had to go somewhere. I don't know where we rode over there he came in and left us there. Then about 1 1/2 hour later they came back. We went to a bread place. Picked up some bread. It was about 2:30 he came in the house. He said o.k. I have to go somewhere else. He said she can let Karen watch T.V. in the frontroom and the other kids when they come home and fix them a peanutbutter and jelly when they come home. Then he said give daddy a kiss for me please. I said no. He said o.k. then left. About 15 min she called and said did you all pick up the bread. I said yes. She said how do you feel I said I feel sore. She said rub a little vaseline between your legs. She said he didn't mess with you did he. I said yes he asked me for a kiss. I said no. She said o.k. I'll get at him. I told him to leave you alone.

Every since that day I had a hateful feeling toward them that I hated. She even tried to make me do it a couple of times in May. I said no. The last time she said she would pay me $10 to do it I said no. Then she brought him upstairs to my room. I had on an abundance of clothes. I knew I would get them that time. I had on a short set connected with a top, pajamas bottom, my night gown and a robe. She tried to get them off and make me do it again. But found she couldn't so she left.

Every since that day we never got along with each other."

APPENDIX NO. 2

COMPLAINT FOR SEARCH WARRANT

"I, Youth Officer J. Lux No. 8027 a Police Officer of the City of Chicago had an occasion to have a conversation with one, A.W. F/B/ 14 yrs regarding evidence of the commission of Aggravated Criminal Assault, Aggravated Battery of a Child and Aggravated Assault by her adoptive mother, Emmaline WILLIAMS Fì apprx 43rs of [age] and at 6544 S. Damen, Chicago, Cook County, Illinois which is a single family dwelling and the only such dwelling at that location. A.W. related that on 15 JUNE 1985 at apprx 1:00AM she was in the family home at 6544 S. Damen mopping the kitchen floor. Her adoptive mother Emmaline WILLIAMS entered the kitchen and stated, 'You took all the shine off the floor -- I'm gonna beat the shit out of you.' At this time the adoptive mother Emmaline WILLIAMS repeatedly struck the girl about the face and shoulders causing visible marks on the girl's face, neck and shoulders. Shortly thereafter the adoptive mother took the girl A.W. by the arm and pulled her into the bathroom. The adoptive mother told the girl that I'M gonna check you out and put petroleum jelly on her (Emmaline WILLIAMS) middle finger and told the girl to pull down her pants. The girl began to protest and the father (adoptive) Roy WILLIAMS walked into the bathroom. The adoptive mother, Emmaline WILLIAMS then pulled the girl into the bedroom and ordered the girl to lay down on the bed. At this time the girl, A.W. protested. . . .. Then the adoptive mother, Emmaline WILLIAMS took a brown wooden cane and struck the girl with same until the girl layed down on the bed which is in the adoptive mother's bedroom. The adoptive mother then ordered the girl to pull down her pants and then attempted to insert her (Emmaline WILLIAMS') hand into the girl vagina. The girl struggled and was again struck with the cane by the adoptive mother. The girl then spread apart her legs upon the adoptive mother's command and the mother inserted her finger into the girl's vagina for several seconds. The girl related that she cried and that the adoptive mother stated 'Don't be afraid, I can't hurt you, I'm not a man.' According to the girl the adoptive mother then told the girl to get up and go finish mopping the kitchen floor, this time using clear water so as not to ruin the shine.

The girl related that she then returned to the kitchen and that shorty thereafter the adoptive mother also returned to the kitchen. The girl then related that she could see a bulge in the adoptive mother's pocket which the girl similarly seen numerous times in the past and that she A.W. identified that bulge as the mother's gun. According to the girl the mother then pulled the gun which she described as a blue steel revolver and pointed the weapon at the girl for several moments as if to shoot the girl with the weapon. The girl then related that the mother then stated, 'I don't need this gun for you,' and them put the gun back into her pocket. The mother then picked up a kitchen knife and held same over her shoulder in a manner as if to throw same at the girl. Tanna BURGIN F/B/apprx 20yrs of age who is a daughter to the adoptive mother, Emmaline WILLIAMS, then yelled from her bedroom which is adjacent to the kitchen, 'Don't cut that girl.' The adoptive mother put down the knife and returned to her bedroom and the girl resumed cleaning the kitchen floor.

The girl through her old foster-mother reported the incident to the Dept. of Children & Family Services. Child Abuse hotline and undersigned Officer was notified. Upon hearing the girl's story undersigned Officer took the girl to Wyler Children's Hospital and the girl was examined by a Dr. Udervu. The Doctor verified injuries of old loop marks on the girl's shoulder, lacerations and bruising on the girl's face and neck and bruising the girl's legs and breast.

The girl related that she has seen her adoptive mother's gun on her (Emmaline WILLIAMS) person and in the house on numerous occasions and that the mother normally keeps the aforementioned cane in her (Emmaline WILLIAMS) bedroom. The girl left the home on 16 JUNE 1985 and the weapon was still there with the adoptive mother. In view of the above circumstances Reporting Officer feels that at 6544 S. Damen, Chicago, Cook County, Illinois there exists evidence of the aforementioned series of events and criminal offenses under the control of Emmaline WILLIAMS F/B/apprx 43yrs of age.

/S/ J. Lux 8927

COMPLAINANT

Subscribed and sworn to before me on this 17th day of JUNE at 5:10 P.M., 1985."

CASE RESOLUTION

Judgments affirmed.

MINORITY OPINION

PINCHAM, J., Dissenting:

I Dissent. However insatiable the urge may be to distort or ignore fundamental constitutional rights and legal principles in order to convict one who is accused of committing a despicable crime, this urge, whenever present, must be completely suppressed and the rules of law must always prevail. A mere cursory examination of the record in the case at bar clearly reveals that the defendants, Emmaline Williams and Roy Williams, were each denied their Federal and State constitutional rights to the effective assistance of counsel by their attorney's simultaneous disloyal representation of the two defendants, who had adverse, antagonistic, inconsistent, discordant and conflicting rights, interests and concerns, and also by their attorney's grossly incompetent and blatantly inadequate performance, before and during the defendants' joint trial.

A

THE DEFENDANTS' RIGHT TO COUNSEL

The sixth amendment to the Constitution of the United States, made binding upon the States by the due process clause of the fourteenth amendment (Gideon v. Wainwright (1961), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792), provides that, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." (U.S. Const., amend. VI.) Article I, section 8, of the Constitution of the State of Illinois similarly provides that, "In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel . . .." Ill. Const. 1970, art. I, § 8.

The Supreme Court held in Kimmelman v. Morrison (1986), 477 U.S. 365, 374, 91 L. Ed. 2d 305, 318, 106 S. Ct. 2574, 2583:

"The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process."

The Kimmelman court further held:

"The right of an accused to counsel is beyond question a fundamental right. [Citations.] ('The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours'). Without counsel the right to a fair trial itself would be of little consequence [citations], for it is through counsel that the accused secures his other rights. [Citations] ('Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have'). The constitutional guarantee of counsel, however, 'cannot be satisfied by mere formal appointment,' [citation]. 'An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.' [Citation.] In other words, the right to counsel is the right to effective assistance of counsel." 477 U.S. at 377, 91 L. Ed. 2d at 320-21, 106 S. Ct. at 2584.

The precious constitutional right to the effective assistance of counsel is not governed or influenced by the gravamen of the offense with which the accused stands charged. Nor is this invaluable constitutional guarantee in any way dependent upon the innocence or guilt of the accused, the quantity or quality of the State's evidence against the accused, the evidence of the accused's innocence, or the potential success or failure of the accused's defense. In Kimmelman, the Supreme Court additionally held:

"While we have recognized that the 'premise of our adversary system of criminal Justice . . . that partisan advocacy . . . will best promote the ultimate objective that the guilty be convicted and the innocent go free' [citations] underlies and gives meaning to the right to effective assistance [citation], we have never intimated that the right to counsel is conditioned upon actual innocence. The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt." 477 U.S. at 379-80, 91 L. Ed. 2d at 322, 106 S. Ct. at 2585-86.

Moreover, under the criminally accused's constitutional guarantee to the effective assistance of counsel, no distinction is permitted between an accused's court-appointed counsel and an accused's privately retained counsel. Mr. Justice Stevens recently stated for the Supreme Court in McCoy v. Court of Appeals (1988), 486 U.S. 429, 444, 100 L. Ed. 2d 440, 457, 108 S. Ct. 1895, 1905;

"Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or as appointment from a court. . . . In preparing and evaluating the case, and in advising the client as to the prospects for success, counsel must consistently serve the client's intent to the best of his or her ability.

The attorney must still provide his or her client precisely the services that an affluent defendant could obtain from paid counsel -- a thorough review of the record and a Discussion of the strongest arguments revealed by that review. In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client."

Under their Federal and State constitutional guarantee to the effective assistance of counsel, defendants Roy Williams and Emmaline Williams were each entitled to dedicated counsel who was not hobbled and who was unfettered in his representation of each of them by his divided loyalties between them. Civilization's most sacred, learned, dedicated and staunchest advocate of all times, centuries ago, admonished:

"No one can serve two masters; for either he will hate the one and love the other, or he will hold to the one and despise the other." (Matthew 6:24.)

The advocate was the Christ Jesus; the admonition was to his disciples and the multitude during His Sermon on the Mount; the admonition is cited in the most dynamic, accurate and prestigious of all law books, The Holy Bible, at Matthew, the 6th chapter and the 24th verse.

Canon 5 of The Model Code of Professional Responsibility of the American Bar Association demands:

"5 -- 1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.

5 -- 14 Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have different interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.

5 -- 15 If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially.

5 -- 17 Typically recurring situations involving potentially differing interests are those in which a lawyer is asked to represent co-defendants in a criminal case . . .. Whether a lawyer can fairly and adequately protect the interests of multiple clients in these and similar situations depends upon an analysis of each case. . . . [The] chance of adverse effect upon his judgment is not unlikely." (Emphasis added.) Model Code of Professional Responsibility Canon 5 (1979).

In Strickland v. Washington (1984), 466 U.S. 668, 692, 80 L. Ed. 2d 674, 696, 104 S. Ct. 2052, 2067, the Supreme Court stated that its holding in Cuyler v. Sullivan (1980), 446 U.S. 335, 340-50, 64 L. Ed. 2d 333, 341-48, 100 S. Ct. 1708, 1713-19, was that prejudice is presumed when counsel is burdened by an actual conflict of interest from his joint representation of multiple defendants, that in those circumstances counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, the Strickland court concluded that it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests, and that given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal Justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interests.

From the totality of the circumstances in the case at bar, application of these foregoing legal and constitutional principles and directives to the defendants' attorney's dual, simultaneous representation of them, with their adverse, hostile, inconsistent conflicting interests and concerns, and his patently incompetent performance before and during the defendants' joint trial, clearly establishes not only a presumption of prejudice, but indeed, positively and affirmatively establishes that the defendants were flagrantly denied their Federal and State constitutional rights to the effective assistance of counsel. The defendants are therefore entitled to a new trial, at which they are entitled to be represented by competent counsel.

B

THE DEFENDANTS' CONFLICTING INTERESTS AND

THE DEFENDANTS' ATTORNEY'S INCOMPETENT PERFORMANCE I

BECAUSE OF THE NATURE OF THE CHARGES, THE RELATIONSHIP OF THE DEFENDANTS TO EACH OTHER AND TO THE ALLEGED VICTIM, THE STATE'S INTRICATELY INTERWOVEN EVIDENCE AGAINST THE DEFENDANTS AND THE DEFENDANTS'

The defendants, Roy Williams and Emmaline Williams, were husband and wife. They were jointly charged with the commission of sex offenses upon their adopted minor daughter. Thus, an inherent ingredient of the instant case was the unique husband-wife relationship and confidentiality, and also at least the possibility of husband and wife privileged communications. An additional distinctive characteristic of the case was the parent-child relationship, all the attendant ramifications thereof, and, likewise, the possibility of parent-child privileged communications. In re Ryan (1984), 123 Misc. 2d 854, 474 N.Y.S.2d 931; In re Agosto (D. Nev. 1983), 553 F. Supp. 1298; People v. Harrell (1982), 87 A.D.2d 21, 450 N.Y.S.2d 501; People v. Fitzgerald (1979), 101 Misc. 2d 712, 422 N.Y.S.2d 309; In re Application of A&M (1978), 61 A.D.2d 426, 428, 403 N.Y.S.2d 375, 377; Annotation, Testimonial Privilege For Confidential Communications Between Relatives Other Than Husband & Wife -- State Cases, 6 A.L.R.4th 544 (1981); Note, Questioning the Recognition of a Parent-Child Testimonial Privilege, 45 Alb. L. Rev. 142 (1980); People v. Kirkman (1988), 170 Ill. App. 3d 106, 112-25 (Pincham, J., Dissenting).

The very nature of the alleged sex offenses by the defendants upon their adopted daughter should have indicated to counsel the conflict and the risks of his disloyalty and ineffectiveness in representing both defendants at their joint trial. Count I of the indictment alleged that the defendants, Roy Williams and Emmaline Williams, on or about April 1, 1984, in Cook County, Illinois, committed the offense of rape, in that they, of the age of 17 years and upwards, "had sexual intercourse with A. W., a child under the age of sixteen years." Count II alleged that said defendants on said date and at said place committed the offense of indecent liberties with a child, in that they, of the age of 17 years and upwards, "performed an act of sexual intercourse with A. W., a child under the age of 16 years." Count III charged that the defendants committed the offense of indecent liberties with a child, in that they, of the age of 17 years and upwards, "with the intent to arouse and satisfy their sexual desires, lewdly fondled and touched A. W., a child under the age of 16 years." Finally, count IV accused the defendants with committing the offense of unlawful restraint, in that they detained A. W. by holding her in a bedroom.

Thus, the defendants, Roy Williams and Emmaline Williams, were jointly charged in all four counts. They were husband and wife and obviously were known to be such by their attorney. The alleged victim in all four counts was A. W., the defendants' adopted daughter, and likewise was obviously known to be such by the defendants' attorney. Counts I, II and III jointly charged the defendants with the commission of sex offenses

These sex accusations, in conjunction with the defendants' relationship to each other and to the alleged victim, should have forewarned counsel of the hazards of his joint representation of the husband and wife defendants, particularly where the alleged victim was their adopted minor daughter. Of course each defendant under the law was presumed innocent. That presumption does not control, however, in determining the proper alignment of defense counsel or the propriety of joint representation by a defense counsel in a multiple-defendant, multiple-count indictment. One defendant may in fact have committed the alleged offense, and the quantity and quality of the State's evidence against such defendant may vary from weak and meager to strong and overwhelming. Whereas, the other defendant may be in fact totally innocent and have absolutely no knowledge of the commission of the offenses. The glaringly apparent unique feature, on the facts, in the case at bar is that the defendants did not have but one defense available to them and that was that they did not commit the offenses. The defenses of mistaken identification, alibi and consent were realistically unavailable to them. Because of their restricted defense, the single attorney's dual representation of both defendants confronted him with the loyalty and conflict dilemmas in the confidential attorney-client communications and husband-wife confidential communication, as well as in his joint courtroom representation of them. Moreover, the relationship of the defendants to each other effectively inhibited possible plea negotiations by the single attorney on behalf of only one of the defendants. It would likewise appear that his joint representation of the husband-wife defendants could possibly warp their acceptance of his conflicting or synonymous advice to each of them on exercising their personal constitutional right to be tried by a jury. Defense counsel's cross-examination was curtailed and his fervor in the presentation of each defendant's defense was compromised by his dual representation of these defendants at their joint trial. In this unusual case, because of the charges, the only available defense thereto, the relationship of the defendants to each other and to the alleged victim and the unique facts upon which the State relied to prove the charges, the joint representation of the husband and wife defendants by the same attorney created counsel disloyalty and client conflicts. It was impossible for one attorney to competently represent both defendants at their joint trial, and the attorney's attempt to do so in the case at bar is indicative of his incompetency and selfishness. "Privately retained lawyers are subject to economic pressures and consequently cannot be relied on to alert clients to conflicts of interest." Lowenthal, Joint Representation In Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 985 (1978). II PRETRIAL

THE DEFENDANTS' COUNSEL SOUGHT NO PRETRIAL DISCOVERY.

The trial record shows that the defendants' counsel sought no pretrial discovery, to which he was entitled, under the provisions of Illinois Supreme Court Rule 412 (107 Ill. 2d R. 412). He was incompetent in not so doing. The record also clearly shows that he did not familiarize himself with and he did not properly utilize the pretrial discovery material which the State voluntarily furnished him. He was likewise incompetent in failing to do so. He did not file a pretrial motion for discovery. No such motion is contained in the record on appeal. The trial clerk's memorandum of orders in the appeal record, commonly referred to as the halfsheet, does not reflect that the defendants' counsel filed a pretrial discovery motion or that an order was entered directing the State to furnish defendants' counsel with pretrial discovery. III A

THE DEFENDANTS' ATTORNEY DID NOT MAKE A MERITORIOUS MOTION TO SUPPRESS DEFENDANT ROY WILLIAMS' STATEMENT.

The State contended that defendant, Roy Williams, gave a pretrial written, signed statement to Chicago police officer Lux and Assistant State's Attorney Jerry Walsh, in which he admitted and related his and co-defendant Emmaline Williams' participation in the commission of the alleged offenses. Before trial, the State furnished defendants' attorney with a copy of defendant Roy Williams' statement, as pretrial discovery material. The defendants' attorney made no attempt to suppress this statement, although the trial testimony clearly established that there was a valid basis for making such a suppression motion. More importantly, on the basis of the record before us, the trial testimony also established that Roy Williams' statement should and would have been suppressed had a suppression motion been made. The defendants' attorney was incompetent in failing to make a motion to suppress defendant Roy Williams' statement.

The majority's assertion that "the questions of pretrial motions to suppress each accused's statements may well have been a question of trial strategy" (182 Ill. App. 3d at 602-03) is completely baseless. There is no valid trial strategy in not pursuing a meritorious motion to suppress a defendant's incriminating statement, and, if it was defendant's counsel's trial strategy not to do so, he was manifestly incompetent.

Additionally, the majority's following conjectures:

(1) "[there] is nothing in Officer Lux' trial testimony to suggest any basis to suppress the statements of defendant [Roy Williams]";

(2) "the only question which could have been raised was the credibility of the witnesses";

(3) "[counsel] may well have thought such motions would have been futile";

(4) "there was the possibility that had defendant [Roy Williams] . . . testified in a pretrial setting something might have occurred that would have been used to impeach [him] at trial" (182 Ill. App. 3d at 603)

are not valid justifications for defendants' counsel's failure to have sought suppression of defendant Roy Williams' statement.

First, as the majority correctly speculates, there is always the possibility that something might occur during a defendant's pretrial testimony that could be used to impeach him at trial. Trial impeachment is always a possibility from a defendant's pretrial testimony. But, certainly, such a speculative possibility is not an acceptable reason for defendants' counsel's failure to have made a meritorious motion to suppress Roy Williams' statement.

Second, every defense counsel recognizes that a motion to suppress a defendant's inculpatory statement may be "futile." But the possible futility of the effort is no justification for not making the effort.

Third, frequently, again as the majority correctly speculates, on the hearing of a motion to suppress a defendant's statement "the only question which could have been raised was the credibility of the witnesses." (182 Ill. App. 3d at 603.) A determination of the credibility of the witnesses is nothing unique. Most assuredly, this can be no vindication for defendants' counsel's failure to have made the suppression motion.

Fourth, the majority's aforestated and accepted supposition for the defendants' attorney's failure to have attempted to suppress Roy Williams' statement is obviously premised on the majority's assumption that on the question of the credibility of the witnesses on an evidentiary hearing of the defendant's suppression motion, the trial court would automatically believe the officer and disbelieve the defendant. But, again, such an assumption, warranted or unwarranted, is not an acceptable reason for the defendants' attorney not to have sought suppression of Roy Williams' statement.

Fifth, the majority's assertion that "[there] is nothing in Officer Lux' trial testimony to suggest any basis to suppress the statements of defendant [Roy Williams]" (182 Ill. App. 3d at 603) is no valid excuse for the defendants' attorney's neglect to have attempted to have the statement suppressed. Defense lawyers, prosecutors, and trial and appellate Judges well realize that rarely, if ever, is there anything in a police officer's motion to suppress pretrial or trial testimony which "[suggests] any basis to suppress the statements of [a] defendant." 182 Ill. App. 3d at 603.

Sixth, there is a significant absence in Officer Lux' trial testimony which clearly establishes the basis, indeed the absolute necessity, for suppressing Roy Williams' statement. The majority accurately states that defendant Roy Williams testified "that Officer Lux told him that co-defendant [Emmaline Williams] made a written statement." (182 Ill. App. 3d at 600.) Although called as a rebuttal witness at trial, Officer Lux did not contradict or deny defendant Roy Williams' repeated trial testimony that Lux told him that his wife and codefendant, Emmaline Williams, had signed a written statement.

At trial, defendant Roy Williams testified on his own behalf, on direct examination:

"Q. Well, did they ask you to make a statement?

A. Yes. Officer Lux did.

Q. Before you made a statement what, if anything, did he say to you regarding the statement?

A. He said you got one strike on you. You a black man and when you go before the rich white Judge from the suburbs you going up the road.

He said I got a signed statement from your wife . . . and your daughter. You might as well sign this because if you don't you going up the road and he says if you sign this you'll probably get a year's probation. Then after I signed this he says you understand I am not for you. I'm for A." (Emphasis added.), Defendant Roy Williams again testified on direct examination:

"Q. Well when he [Officer Lux] first talked to you what did he say?

A. He told me, he says you better sign this. I got a signed statement from your wife, your daughter A.W. and if you don't sign it you going up the road. He said now if you sign this you will get probation. He said because you got a strike on you being a black man the Judge is not going to believe you. He's going to believe that child.

Q. Now what was said the second meeting between you and Officer Lux?

A. He repeated the same thing and then he had a paper." (Emphasis added.)

On cross-examination, the defendant, Roy Williams, for the third time testified:

" He [Officer Lux] says I have a written statement. Signed statement from your wife, your daughter and if you sign this you probably will get probation because he says the rich white Judge from the suburbs is not going to believe you.

Being a black man you got a strike on you if you go before a rich white Judge from the suburbs. He wrote this up and told me to sign it." (Emphasis added.)

Twice on direct examination and a third time on cross-examination, defendant Roy Williams testified that Officer Lux told him that he had a written, signed statement from his wife. Significantly, when Officer Lux was called by the prosecutor as a rebuttal witness, he did not deny this statement the defendant attributed to him. Officer Lux was asked by the prosecutor and he testified on rebuttal:

"Q. Officer Lux . . . when you spoke with Roy Williams did you tell him that if he signed a paper he would get probation?

A. No.

Q. Did you ever tell him that a white Judge from the suburbs would not believe his story?

A. No."

It is apparent from the trial testimony of Officer Lux and the codefendant, Emmaline Williams, that Officer Lux did not have a written, signed statement from her, and that Officer Lux' contrary statements to the defendant Roy Williams were false. No such statement was established by the testimony of Officer Lux or the codefendant, Emmaline Williams, or from any other source. If such a written, signed statement by codefendant Emmaline Williams existed, it would be, but it is not, apparent from the record before us. It is clear, however, that based upon the foregoing segment of the record before us of Officer Lux' undenied representations to defendant Roy Williams that he had a written, signed statement from his wife, Emmaline Williams, the codefendant, there was a valid and meritorious basis for suppressing defendant Roy Williams' statement; certainly there was a basis for at least attempting to do so. People v. Lee (1984), 128 Ill. App. 3d 774, 780-81, 471 N.E.2d 567.

In People v. Payton (1984), 122 Ill. App. 3d 1030, 462 N.E.2d 543, the detective falsely told the defendant that he had been identified by the victim of a burglary and that his fingerprints had been found at the scene of the crime and the defendant admitted to the detective that he had committed the burglary. The defendant was convicted of the burglary. The appellate court reversed, holding:

On Appeal, defendant initially argues that the tactics used by Detective Strom were such as to render defendant's confession involuntary, and that the confession should have been suppressed. We agree. In determining whether a confession was voluntarily made, it must be ascertained whether the defendant's will was overborne at the time he confessed or whether the confession was made freely, voluntarily and without compulsion or inducement of any sort. . . .

. . . It is undisputed that, prior to the time defendant made his confession, Detective Strom falsely told him that he had been identified by the victim of the crime, and that his fingerprints had been found at the scene. The United States Supreme Court has unequivocally stated that 'any evidence that the accused was threatened, tricked, or cajoled into a waiver [of the fifth amendment privilege against self-incrimination] will, of course, show that the defendant did not voluntarily waive his privilege.' (Miranda v. Arizona (1966), 384 U.S. 436, 476, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.) Moreover, the Illinois Supreme Court has long recognized that confessions or admissions acquired by trick are inadmissible. (People v. Stevens (1957), 11 Ill. 2d 21, 27, 141 N.E.2d 33.) . . . It seems apparent that a suspect grossly and intentionally misled as to the amount and strength of the evidence against him may well be induced to confess as a direct result of those misrepresentations. Defendant here testified that he was trying to 'cut himself a deal' by admitting his involvement in the crime, and we think it ignores reality to presume that neither the reliability nor the voluntariness of a confession is tainted by police conduct calculated to falsely persuade the defendant that his prospects for avoiding conviction are nearly hopeless. . . . Finally, it matters not that defendant's confession here may have been true, for the truth or falsity of the confession is irrelevant insofar as the inquiry into its voluntariness is concerned. (Jackson v. Denno (1964), 378 U.S. 368, 377, 12 L. Ed. 2d 908, 915-16, 84 S. Ct. 1774, 1781.) Given the nature and extent of the trickery employed by Detective Strom, we conclude that the trial court's finding that defendant's confession was voluntary was contrary to the manifest weight of the evidence presented at the hearing on the motion to suppress." 122 Ill. App. 3d at 1033-34.

It is clear that defendant Roy Williams' counsel was incompetent in failing to make a motion to suppress his statement. People v. Odom (1966), 71 Ill. App. 2d 480, 218 N.E.2d 116.

On the state of the record in the case at bar as it appears before us, the statement of Roy Williams was obtained from him in violation of his fifth amendment right, which provides, "No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law . . ." (U.S. Const. amend V) (made binding upon the States by the due process clause of the fourteenth amendment), and his similar rights under article I, sections 2 and 10, of the Illinois Constitution, which provide, respectively, "No person shall be deprived of life, liberty or property without due process of law . . ." and "No person shall be compelled in a criminal case to give evidence against himself . . .." (Ill. Const. 1970, art. I, §§ 2, 10.) The defendant Roy Williams' attorney's failure to invoke said constitutional rights by a motion to suppress his statement denied defendant Roy Williams his right to the effective assistance of counsel and to loyal counsel guaranteed him under the sixth amendment to the Constitution of the United States and article I, section 8, of the Constitution of the State of Illinois.

Defendant Roy Williams testified that the statement he signed was preprepared and predrafted by Officer Lux and Assistant State's Attorney Walsh, that Officer Lux, and not he, supplied the contents of the statement, and that he did not read the statement when Assistant State's Attorney Walsh presented it to him or before he signed it. Although this was denied by Officer Lux, it is significant that the State did not call Assistant State's Attorney Jerry Walsh, who Officer Lux stated took defendant Roy Williams' statement, as a witness during the trial, and the State did not offer any explanation for its failure to have done so. Even more significant, the defendants' counsel did not raise or rely on the State's failure to have called Walsh as a witness.

Officer Lux and the defendant Roy Williams both testified that the defendant did not write his statement, that the statement was written by Assistant State's Attorney Walsh and that the defendant thereafter signed it. Neither Officer Lux nor Assistant State's Attorney Walsh called a shorthand reporter to take the defendant's statement, and no explanation appears in the record for them not having done so.

A hearing on and a decision by the trial court on defendant Roy Williams' motion to suppress his statement would have placed the credibility of the defendant Roy Williams against the credibility of Officer Lux and Assistant State's Attorney Walsh for the trial court's determination. A ruling by the trial court favorable to the defendant Roy Williams on his motion to suppress his statement would have been an obvious indication that the trial court had concluded that the defendant was the more credible witness. Conversely, a denial of his motion to suppress his statement would have been a clear indication that the trial court had found that Assistant State's Attorney Walsh and Officer Lux were the more credible witnesses. Based upon this pretrial assessment by the trial court of the credibility of defendant Roy Williams, Officer Lux and Assistant State's Attorney Walsh as witnesses, the defendants' attorney would have had a meaningful basis and barometer for advising the defendants on whether to exercise their constitutional right to be tried by a jury, determined by the trial court's ruling on the suppression motion. Advice by a defendant's attorney to waive a jury trial when the trial court has already rejected a defendant as a credible witness on the hearing of his motion to suppress his pretrial statement would ordinarily be incompetent advice, and particularly so on the facts in the instant case. (People v. Chatman (1967), 36 Ill. 2d 305, 223 N.E.2d 110.) The defendants' attorney's failure to have pursued and acquired this appropriate pretrial credibility determination by the trial court is another manifestation of the defendants' attorney's incompetence. No pretrial motion to suppress the defendant Roy Williams' statement was made, and, thus, there was no judicial determination of the constitutional validity on the voluntariness or the authenticity of the statement.

I momentarily leave, but will later return to, defendant Roy Williams' statement.

B

It is noteworthy that co-defendant Emmaline Williams at trial denied making any oral or written incriminating admission to Officer Lux. It would appear that had she made any voluntary incriminating admissions, they would have been reduced to writing. No reason appears for such admissions not having been reduced to writing, except perhaps, as she testified, such admissions were not made by her. But, here again, defendants' counsel did not raise the issue.

I am constrained to point out that the majority's statements -- "The police then confronted co-defendant [Emmaline Williams] with defendant's [Roy Williams'] statement. Co-defendant told the officer that those events must have occurred if defendant said that they did" (182 Ill. App. 3d at 600) -- are not totally correct and are indeed misleading. More accurately, Officer Lux equivocally and vacillatingly testified on direct examination:

"Q. What did you say to her at that time?

A. . . . And then confronted her [Emmaline Williams] with what Roy had just told us.

Q. And what did she say to you at that time?

A. I believe she said that it must be so if he said it. If he said it's so. It's so. Something to that effect." (Emphasis added.)

The true evidentiary worth of this irresolute testimony of Officer Lux need not be assessed. IV

THE DEFENDANTS' COUNSEL MADE NO SEVERANCE MOTION ON BEHALF OF CODEFENDANT EMMALINE WILLIAMS AND HE THEREBY IGNORED AND DEFEATED HER BENEFICIAL INTEREST IN AND TO A SEPARATE TRIAL.

The statement of defendant Roy Williams inculpated him and his wife, co-defendant Emmaline Williams, in the commission of the alleged offenses. The pertinent portions of Roy Williams' written, signed statement follows:

"STATEMENT OF ROY WILLIAMS

Taken June 17, 1985 at 4:30 AM At Area 3VC 3900 S. California

This statement taken regarding the sexual intercourse with A. W. which occurred in April, 1984 at 6544 S. Damen at 11:30 PM.

My wife, Emma, asked me if I wanted to have sex with A. W. and I said I did -- A. W. is my adopted daughter and she was 13 years old when this happened -- Emma brought A. W. to our bedroom and told her to take her clothes off. I was already in bed without any clothes on. A. W. took her clothes off and got into bed with me -- Emma took her clothes off and got into bed with us. When A. W. got in bed I touched her vagina and breasts. She was jumpy -- Emma and I told her to relax. After she relaxed I got on top of her and put my penis in her vagina about a half inch. I was inside of her about ten minutes. She said her stomach hurt her so I stopped. I didn't reach a climax. After that we layed [ sic ] there awhile and Emma said she could go back to her bedroom. She left and went to her bedroom.

/S/ Roy Williams

ASA Jerry Walsh

Y.O. Frank McCall 6428

Y.O. J. Lux 8027"

Predicated on the State's intention to introduce defendant Roy Williams' statement as evidence against him on his trial, codefendant Emmaline Williams was clearly entitled to a trial separate from his. (People v. Schmitt (1988), 173 Ill. App. 3d 66; People v. McVay (1981), 98 Ill. App. 3d 708, 715, 424 N.E.2d 922; People v. Hernandez (1988), 121 Ill. 2d 293; People v. Cruz (1988), 121 Ill. 2d 321.) Yet, the defendants' counsel did not familiarize himself with or utilize defendant Roy Williams' statement as a basis for a severance motion on behalf of co-defendant Emmaline Williams. The defendants' counsel did not make a severance motion on behalf of co-defendant Emmaline Williams. He was manifestly incompetent in failing to do so. He neglected to faithfully and loyally pursue and protect her interest in failing to do so.

Although the majority's statements, "a severance could be granted upon a showing of antagonistic defenses," and "the defenses in this case were not antagonistic" (182 Ill. App. 3d at 602), the accuracy of which is indeed questionable, the court's statements nevertheless are unquestionably incomplete and deceptive. Antagonistic defenses are not the sole basis for a severance. We recently stated in People v. Schmitt (1988), 173 Ill. App. 3d 66, 87:

"We have repeatedly held that when a motion for a separate trial is predicated on the premise that a codefendant's confession or admission implicates the moving defendant, a severance should be granted unless the prosecution declares that the admission or confession will not be offered in evidence at the time of trial, or if offered, that there will be eliminated therefrom any and all references to the party applying for the severance."

Although Richardson v. Marsh (1987), 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702, Nelson v. O'Neil (1971), 402 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct. 1723, Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, People v. Jones (1988), 121 Ill. 2d 21, People v. Hernandez (1988), 121 Ill. 2d 293, People v. Cruz (1988), 121 Ill. 2d 321, and People v. Duncan (1988), 124 Ill. 2d 400, involved whether a defendant's sixth amendment constitutional right of confrontation at a joint trial was violated by the State's use of a nontestifying codefendant's confession, these authorities are also instructive on a codefendant's right to a severance where the State intends to rely on a defendant's confession which implicates the codefendant in the commission of the offense for which they are jointly charged. The defendant's attorney did not protect co-defendant Emmaline Williams' interest and right to a separate trial. Instead, the defendants' attorney improperly refused to utilize defendant Roy Williams' pretrial statement as a basis for making a severance motion on behalf of co-defendant Emmaline Williams, and her beneficial interest in and right to a separate trial went unenforced, unpursued and ...


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