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08/24/89 the People of the State of v. Michael J. Schaefer

August 24, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL J. SCHAEFER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

543 N.E.2d 894, 188 Ill. App. 3d 317, 135 Ill. Dec. 326 1989.IL.1295

Appeal from the Circuit Court of Whiteside County; the Hon. Robert W. Castendyck, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Following a bench trial, the defendant, Michael J. Schaefer, was convicted of unlawful possession of a controlled substance and unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56 1/2, pars. 1402(b), 1401(b)(2)). The trial court sentenced him to five years in prison. He appeals.

The record reveals that the defendant and co-defendants Peggy Dublo and Cynthia Sterenberg were charged by the same information. On February 1, 1988, the court appointed Public Defender Albert Schmidt to represent the defendant. Schmidt subsequently represented both the defendant and co-defendant Dublo at a preliminary hearing on February 4 and at arraignment on February 10. The record shows that Assistant Public Defender Michael Albert represented co-defendant Dublo at all further proceedings, while Schmidt continued representing the defendant.

The evidence at trial established that the defendant, Dublo, and Sterenberg lived at the same residence in Morrison, Illinois. Police officer Andy Widener testified that he executed a search warrant at the residence on January 30, 1988. Upon entering the living room of the house, he observed the defendant sitting on the couch and Dublo lying on the floor. Underneath the couch, Widener found 23 paper packets which contained 4.6 grams of a white powdery substance that later tested positive for the presence of cocaine. Also under the couch, Widener found two scales and a Sucrets box which contained 0.8 grams of a white substance that later tested positive for the presence of cocaine. In addition to the items found under the couch, Widener seized several items from the defendant's upstairs bedroom. On the defendant's stereo speaker, Widener found 4.1 grams of cocaine. On a shelf in the defendant's bedroom closet, Widener discovered an unspecified amount of cocaine in a white, paper packet. In all, the police seized 9.7 grams of cocaine during the search.

Douglas Fowler, who lived directly across the street from the defendant, testified that during December of 1987 and January of 1988 he had observed suspicious activity at the defendant's residence. He stated that on the weekends cars would park in front of the defendant's house. From each car, one of the occupants would go into the house for about two or three minutes, then return to the car and drive away. On January 30, 1988, this had occurred nine times before the police conducted the search. Fowler stated that it was never the same car on any of the occasions. He believed that the cars would only stop if the front drapes of the house were 12 inches apart. If they were completely opened or closed, no cars would stop.

Co-defendant Cynthia Sterenberg testified on behalf of the State that in December of 1987 she had seen a mirror on the dining room table near where the defendant and a person named Rick Westendorf were sitting. She believed the two men were "doing coke." Sterenberg further testified that she warned Westendorf and the defendant not to bring drugs into the house.

Co-defendant Peggy Dublo also testified on the State's behalf. She stated that she saw cocaine in the house only once from the time she moved into the residence until the day the search warrant was executed. The cocaine was on the dining room table closest to Westendorf, who frequently stayed at the house. Sometime after she saw the cocaine, she told Westendorf to stop bringing drugs into the house. Dublo further stated that she heard Sterenberg yelling at Westendorf about the cocaine. However, Dublo did not know if Sterenberg's comments were also directed at the defendant. Dublo testified that during the execution of the warrant the defendant stated that there was cocaine in the house and that they were going to get into trouble for it.

The defendant testified that the cocaine found in the Sucrets container was his. He further admitted that he had told Dublo during the execution of the search warrant that there was cocaine in the house. He stated that the 23 packets of cocaine found under the couch were not his and that they belonged to Westendorf. Regarding the cocaine found in his bedroom, the defendant claimed that he did not know it was there or how it had gotten there. He testified that Westendorf had used his house to package cocaine. He further stated that Westendorf did not make a habit of packaging cocaine there after Sterenberg and Dublo told Westendorf not to bring cocaine into the house.

On appeal, the defendant argues that he was denied his right to the effective assistance of counsel. He contends that his counsel labored under a conflict of interest because of his previous representation of co-defendant Dublo, who testified as a State witness at the defendant's trial. The State initially argues that the defendant has waived this issue by failing to bring it to the attention of the trial court and by failing to adequately preserve the record.

We find that the instant issue has not been waived since no post-trial review of the alleged conflict was conducted by an independent attorney. (People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870.) We further find ...


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