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05/08/89 the People of the State of v. Frank F. Volkmar

May 8, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FRANK F. VOLKMAR, DEFENDANT-APPELLANT

DEFENDANT, FRANK VOLKMAR, WAS CONVICTED OF MURDER IN VIOLATION OF SECTION 9-1(A)(2) OF THE CRIMINAL CODE OF 1961 (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 9-1(A)(2)). HE DID NOT PULL THE TRIGGER, BUT HE OBTAINED THE GUN AND ACTIVELY PARTICIPATED IN PLANNING THE MURDER. THE VICTIM, SUSPECTED OF BEING AN INFORMANT BY DEFENDANT AND HIS FELLOW THUGS, WAS SHOT IN THE HEAD TWO OR THREE TIMES WHILE FACEDOWN ON THE GROUND.



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

538 N.E.2d 1255, 183 Ill. App. 3d 149, 131 Ill. Dec. 699 1989.IL.691

Appeal from the Circuit Court of Marion County; the Hon. Mark M. Joy, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. RARICK and CHAPMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

Several days after the murder, defendant and the others went back to the body and burned it to a crisp., Defendant was sentenced to 60 years.

We affirm.

Defendant first argues that the trial court erred in denying his lawyer's motion to withdraw. Scott Wilzbach, defendant's lawyer, had claimed he had a lawyer-client relationship with State's witness Keith Kirgan and a social relationship with Kirgan's parents, and argued that these relationships would make difficult cross-examination of Kirgan.

The circuit court of Marion County denied Wilzbach's motion and found that: (1) the motion was not timely; (2) Wilzbach was not representing Kirgan in any matter at the time; (3) Wilzbach did not claim that Kirgan's cross-examination would involve information obtained from him in confidence; and (4) no actual conflict was shown.

The circuit court's comments were pregnant with implications about timeliness:

"I'm not saying that you're trying to delay any trial, but I don't think one week prior to the trial date is the time to make a Motion to Withdraw, particularly based on at least two witnesses who were known from the day you entered the case were going to be called by the State."

The record supports the trial court.

Wilzbach argued that he had represented Kirgan in the past, but conceded that he did not represent him during this trial. Being a former lawyer of a State's witness creates no conflict of interest, notwithstanding the possibility of representation in the future. (People v. Miller (1977), 46 Ill. App. 3d 882, 886, 361 N.E.2d 373, 376.) But even more noteworthy, defendant took the witness stand and admitted the truth of Kirgan's testimony. Therefore, there was no need to attack Kirgan's believability in cross-examination. In fact, it seems that Wilzbach, himself, did not believe that his cross-examination of Kirgan had been hampered by these relationships because he omitted this issue from his ...


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