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10/25/89 the People of the State of v. Ronald Barrow

October 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

RONALD BARROW, APPELLANT



SUPREME COURT OF ILLINOIS

549 N.E.2d 240, 133 Ill. 2d 226, 139 Ill. Dec. 728 1989.IL.1668

Appeal from the Circuit Court of La Salle County, the Hon. Alexander T. Bower, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. RYAN and CALVO, JJ., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

Following a jury trial in the circuit court of La Salle County, the defendant, Ronald Barrow, was found guilty of the murder of Joseph O'Berto (Ill. Rev. Stat. 1983, ch. 38, par. 9-1), armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2(a)), residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3), and burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1). A hearing was held on the State's motion to determine if the death penalty could and should be imposed. The jury found that there existed one of the aggravating factors set out in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)) and that there were no mitigating factors sufficient to preclude a sentence of death. The trial court sentenced the defendant to death and to a consecutive 30-year prison term on the armed robbery conviction and a 15-year term on the residential burglary conviction. No sentence was entered on the burglary conviction. The defendant's sentence of death was stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603).

Evidence at trial showed that on February 19, 1984, the body of the victim, Joseph O'Berto, was discovered in the basement of his residence, located in Cedar Point, Illinois. He had been shot in the head, which an autopsy showed to be the cause of death. In a pool of blood beside the body, investigating officers found a spent projectile. Robert Hunton, a forensic scientist with the Illinois Department of Law Enforcement, testified that he examined the projectile and determined that it could have been fired from a gun of any one of four calibers, including a 9 millimeter. Hayden Baldwin, a crime scene technician with the La Salle County police department, testified that several of the stairs leading to the victim's basement had been "torn up" and in the basement he observed an empty safe and three slot machines. Baldwin also stated that he examined the front and rear doors of the residence and found no signs of forced entry.

Darlene Brown, the victim's daughter, testified that on the previous evening she was with her father at his residence from approximately 7 p.m. to 9 p.m. When she returned home, at close to 9 p.m., Brown telephoned her father to inform him that she had arrived safely. The following morning, Brown and her husband Howard were beckoned to the victim's residence by her father-in-law, Floyd Brown, who was there and had been trying, without success, to reach O'Berto. They found the front door to the residence unlocked, several rooms in the house in disarray and the body of the victim lying in the basement in a pool of blood. Brown determined that a number of her father's possessions were missing, including his wallet, which she said typically contained about $500 in denominations of $100; a bankbook with $20,000 on deposit; and a gold money clip.

Leroy Blum, the victim's next-door neighbor, testified that on the evening of February 18, 1984, at approximately 9 p.m., he observed the outside light of the victim's residence go off and then go on again around 10:30 p.m. At close to 1:15 a.m., Blum noticed that the light was still on. At 3 a.m., he awoke and saw that the light had gone off.

Harry Hockings, an Illinois State trooper, testified that on March 15, 1984, Judy Herron informed him that her boyfriend, Harold "Smokey" Wrona, who was incarcerated in a Maryland State prison, had information concerning the victim's death and that he wished to meet with Hockings. Thereafter, Hockings and La Salle County Sheriff Pete Wahl met with Wrona in the prison. Hockings testified that based on information Wrona provided them, they made arrangements with Maryland law enforcement officials to have Wrona released from prison so that he could meet with the defendant and provide the opportunity for him to make incriminating statements concerning the victim's death that could be recorded with eavesdropping equipment. On April 6, 1984, Wrona and the defendant met in a hotel room in Maryland which was set up with hidden audio and video equipment operated by Maryland law enforcement officials. After the defendant made a number of incriminating statements to Wrona, he was arrested and charged with the offenses stated above.

At trial, Wrona testified that he met the defendant in July of 1983, while they were incarcerated in the same cellblock at a Maryland prison. According to Wrona, he told the defendant that in 1966, two of his friends, Joe Doll and George Lakita, had committed a burglary in Cedar Point and stole $64,000 that they had found under one of the basement stairs. Wrona stated that Doll and Lakita told him that they also found three "barrels of change" in the basement but took only the cash. Wrona also told the defendant that Doll and Lakita had later discovered that an additional $175,000 was hidden in one of the lower basement stairs where they had not searched.

Wrona further testified that on February 2, 1984, after the defendant was released from prison on bond pending an appeal of a Maryland conviction for armed robbery, he visited Wrona in prison. At that time he told Wrona that he was going to Davenport, Iowa, because he had a "score there" and wanted to visit Wrona's son on the way. The defendant also inquired about the robbery of the man in Cedar Point that Wrona had earlier told him about. He sought directions to Cedar Point and asked Wrona whether he knew what the house looked like that had been burglarized.

On February 24, 1984, the defendant again visited Wrona in prison and stated that he had made "a pretty good score" in Cedar Point. The defendant said he and his brother Bruce had watched the victim's home for about a week. Late one night, he knocked on the front door and told O'Berto that he was having trouble with his car and asked to use the telephone. The defendant stated that he then stuck his foot in the door, pushed the victim back into the house with the gun and handcuffed him.

The defendant said he found a wallet in the victim's pocket which contained five $100 bills and that he searched the house and found a bankbook showing $18,000 on deposit. In the basement, he found an empty safe and three slot machines covered with plastic. The defendant also stated that he and his brother "tore a couple stairs up" but did not find anything. In addition, the defendant said he asked the victim where the money was but the man could not hear so he "whipped him." While pointing a finger to his head, the defendant told Wrona that he "had to take him [the victim] out of it." Wrona testified that the defendant said that he and his brother wore gloves the entire time they were in the house and that he disposed of the gun in a river in Indiana just prior to being stopped by an Indiana State trooper for speeding.

The defendant's conversation with Wrona, which was recorded by eavesdropping equipment while they were in a Maryland hotel room, was played for the jury and a transcript of the recording was received in evidence. The transcript shows that the defendant told Wrona that "everything went just like . . . we had planned it." The defendant said he watched the victim's home for a week and that late one evening, after midnight, he forced his way in the victim's house. The defendant stated that although he hit the victim "all over," he would not tell him anything except "where he kept change." The defendant said he searched everywhere and found only a safe in the basement and that was empty. He said also that he "pulled up" the first two stairs leading to the basement but did not find any money. Wrona asked the defendant what kind of gun he used and the defendant replied that it was a "hot, nine mil[limeter]" which he had obtained in Delaware. The defendant added that he had tossed the gun off a bridge on his way back from Cedar Point.

The State also presented evidence showing that the defendant was in the vicinity of Cedar Point on or about February 18, 1984. Judy Herron testified that in February of 1984, the defendant and his brother Bruce Barrow visited her home in Seatonville, Illinois, which is approximately 20 miles from Cedar Point. She testified that the defendant was driving a white car and told her that he was staying at a Holiday Inn motel in Peru, Illinois, registered under the name Lee Deibert. Several days later, Herron said, the defendant and his brother returned. At that time, according to Herron, the defendant stated that the previous evening Bruce had been stopped by a La Salle County police officer for a traffic offense and that he had to call the police station in an effort to obtain Bruce's release. The defendant added that they had been fortunate because the officers had not discovered a gun that was in the car at the time.

Patricia Hurley, an employee of Budget Rent-A-Car in Newark, Delaware, testified that on February 11, 1984, the defendant rented a white Ford Thunderbird bearing license plate number 744741. A clerk of the Holiday Inn motel in Peru testified that on February 13, 1984, the defendant checked into room 123 with a second man and checked out on February 19.

Kathleen Noll, a La Salle County police officer, testified that on February 16, 1984, at approximately 4:45 a.m., she observed Bruce Barrow driving a white Ford Thunderbird with Delaware license plate number 744741. She said the car was heading the wrong way down a one-way street in downtown La Salle. Noll stopped the car and asked Barrow for a driver's license. Barrow responded that his name was William Payne and that he had a Delaware driver's license, but did not have it in his possession. Noll then transported Barrow to the police station, where he telephoned the Holiday Inn in Peru and, according to Noll, asked for room 123. Tom Sickley, also a La Salle County police officer, testified that while he was on duty that same night at the La Salle County police station, Bruce Barrow asked him to talk to an individual on the telephone who identified himself as Ronald Barrow. He stated that a short time later an individual who identified himself as Ronald Barrow called the station and asked to speak to William Payne. La Salle County police officer Jack Moriarity testified that he too was on duty at the station that night and received a call from a man calling himself Ronald Barrow who asked to speak with William Payne. A tape recording of all three of the telephone calls was played for the jury.

Walter Hamlin testified that on February 18, 1984, at approximately 10 p.m., he saw Bruce Barrow enter his parent's restaurant located in Cedar Point and purchase cigarettes and candy. Curtis Barmes, an Illinois State trooper, testified that on February 18, 1984, at approximately 1:55 a.m., he observed a white Ford Thunderbird with Delaware license plates number 744741 heading north on Route 51 at a point south of the Illinois River bridge to near Cedar Point. Barmes stated that he observed two white males in the car. Barmes also testified that the only way the car could have reached Route 51 at that point near the Illinois River bridge would have been by turning off a road which led from Cedar Point.

Dave Doll, an Indiana State trooper, testified that on February 19, 1984, at approximately 5:07 a.m. Eastern Standard Time, he observed the defendant driving a white Ford Thunderbird heading east on the Indiana Toll Road. Doll stated that from the Michigan City toll plaza he followed the car for 20 to 30 miles before stopping it and issuing the defendant a traffic citation for speeding. Doll stated that another man was in the car asleep in the passenger seat. Evidence showed that the distance from the Illinois River bridge outside Cedar Point to the location where Doll stopped the defendant and issued a traffic citation was approximately 160 miles.

The prosecution also presented evidence to link a pair of the defendant's shoes, found in a search of his home in Maryland, to the impression of a shoe recovered from a piece of plywood found in the victim's basement. Robert Hunton, a forensic scientist with the Illinois Department of Law Enforcement, stated that the shoes found in the defendant's apartment "could have made the footwear impressions" considering that the size and the pattern of the sole of the shoes matched those exhibited on the impression. On the heel of the left shoe was found a small bloodstain which contained human blood type O. Both the defendant and the victim were blood type O as well as 45% of the white, male population of the United States.

Upon the jury's finding the defendant guilty and the entering of a judgment of convictions, the State asked for the death penalty. After the first stage of the sentencing hearing, the jury found that the defendant was subject to the death penalty, being 18 years of age or older at the time of the murder and having "actually killed" the victim in the course of a felony, to wit, armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)).

At the second stage of the sentencing hearing, the State presented evidence that in 1983 the defendant was convicted in the State of Maryland for armed robbery and use of a handgun in the commission of a felony and was sentenced to 12 years in prison. Mike Evert testified that prior to the defendant's initial appearance in court on the charges, the defendant asked him to testify that he was with Evert at the time of the robbery. Evert stated that he had not been with the defendant at that time and refused the request. In 1976, the defendant was convicted of larceny and was sentenced to a term of probation.

The State also presented the testimony of Fran Poore who had worked with the defendant at a 7-Eleven convenience store in Delaware in 1982. Poore stated that on several occasions she observed the defendant with a handgun while he was working at the store and, on one occasion, she observed the defendant put five or six packets of "white powder" on a scale located at the front of the store. John Puican, the defendant's supervisor at the store, testified that the defendant's employment was terminated on December 13, 1982, when a .32-caliber handgun was discovered in his possession at the store.

Frederick Hill testified that on May 11, 1976, the defendant drove by his residence while Hill was playing in the front yard with his son and fired a pellet gun at them. Hill chased the defendant, and when Hill confronted him, the defendant said he was "going to do something" to Hill. The defendant was 16 years old at the time.

In mitigation, the defendant offered the testimony of his brother, mother and a friend, who testified to his being a warm and caring person. They also testified that the defendant often helped the sick and the elderly in his neighborhood and that he once donated blood.

At the Conclusion of the hearing, the jury found that there were no mitigating factors sufficient to preclude the imposition of the death penalty and the court sentenced the defendant to death. The cause comes before this court for direct review as our constitution (Ill. Const. 1970, art. VI, § 4(b)) and Supreme Court Rule 603 (107 Ill. 2d R. 603) provide.

The defendant argues that his convictions should be reversed and a new trial ordered on several grounds. First, he contends that he was denied the effective assistance of counsel in violation of the sixth amendment to the Constitution of the United States. Specifically, the defendant claims that his trial counsel erroneously advised him to forgo presenting evidence in defense solely to preserve for review a frivolous argument that a motion for directed verdict had been improperly denied.

The record shows that defense counsel made a motion for a directed verdict and, following its denial, stated: "The law in Illinois, I believe, says that if we proceed to present evidence at this time, we may . . . waive our right to raise as error on appeal, if in fact, a conviction is entered, any error which may have been committed in the denial of the motion for directed verdict. I would ask that I be allowed to speak with Mr. Barrow for I'd like to have a few minutes in private to determine whether, in fact, he wants to proceed or not." After the requested recess, defense counsel informed the court that the defendant did not wish to present evidence in his behalf.

The defendant claims that counsel's advice to forgo putting on evidence in defense was erroneous. He says that there was no validity to counsel's contention that the directed verdict motion was improperly denied, and therefore, nothing would be waived by presenting evidence. In any event, the defendant argues, even if argument on the motion for a directed verdict was waived by presenting evidence, counsel still could have argued on review that the evidence was insufficient to prove guilt beyond a reasonable doubt. The defendant also maintains that had he presented evidence in defense, there is a reasonable probability that the outcome might have been different. The defendant says he intended to testify that he had obtained the information he furnished Wrona concerning the murder of the victim from the actual perpetrator and that he was simply bragging to Wrona. The defendant, too, claims that he planned on calling two witnesses who would discredit the testimony of one of the prosecution's witnesses, Walter Hamlin, who placed the defendant's brother in a Cedar Point restaurant on the night of the murder. He also intended to call a witness to testify that the impression of a shoe found at the scene of the murder could not have been made by the pair of shoes found in a search of his Maryland residence.

In People v. Albanese (1984), 104 Ill. 2d 504, this court adopted the two-part test set out by the Supreme Court of the United States in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, to determine whether a defendant has received the effective assistance of counsel guaranteed by the sixth amendment to the Constitution of the United States. Under Strickland, a defendant claiming ineffective assistance of counsel must show that the advice of counsel fell outside the "'range of competence demanded of attorneys in criminal cases'" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.

As to the first element of the standard, there is a strong presumption that the challenged action of counsel was the product of sound trial strategy and not of incompetence. (Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065.) We cannot say that the defendant has overcome this presumption.

The record does not support the defendant's assertion that defense counsel advised him not to present evidence in defense simply to preserve for review argument on the court's denial of the motion for a directed verdict. At a hearing on the defendant's post-trial motion, the defendant's trial counsel testified that although that was the "predominant consideration" in his decision not to present evidence in defense, he also stated that he believed the evidence the defendant could present would not "sway even one juror's mind."

McFarland testified that prior to trial, he had extended Discussions with the defendant concerning the evidence or possible witnesses he could present. McFarland stated that the defendant had suggested that his brother Bruce testify and provide him an alibi, but because he appeared "burnt out" on drugs and because his testimony was not believable, McFarland decided not to call him as a witness. Although McFarland did not specify his reasons for advising the defendant not to testify or why he did not call the other witnesses the defendant suggests, the record shows that after the motion for a directed verdict was denied, McFarland moved to exclude any reference to the defendant's previous convictions, which was denied.

It is clear that counsel did not advise the defendant to forgo presenting evidence or testimony solely to preserve for review argument on the denial of the motion for a directed verdict. Rather, the record reflects a strategic decision on the part of defense counsel not to put on evidence that might have had little or no effect on the jury or that may have been harmful. In general, the decision to call particular witnesses is a matter of trial strategy, and we have stated that an ineffective assistance of counsel claim which arises from a matter of defense strategy will not support a claim of ineffective representation unless that strategy is unsound. (People v. Madej (1985), 106 Ill. 2d 201, 214; People v. Haywood (1980), 82 Ill. 2d 540, 543-44.) Therefore, even assuming counsel was incorrect in his belief that presenting evidence in defense would waive on review argument on the denial of the motion for a directed verdict, under the circumstances, we cannot say that defense counsel's decision to advise the defendant to forgo putting on evidence in defense fell below an objective standard of reasonableness.

We note parenthetically that an election by the defendant to present evidence after a motion for directed verdict has been overruled waives any error in the trial court's ruling on the motion (People v. Curtis (1967), 90 Ill. App. 2d 231), except when the defendant renews the motion at the close of all the evidence (People v. Turner (1984), 127 Ill. App. 3d 784, 789).

In any event, assuming counsel's advice was not warranted as a matter of sound trial strategy, we do not consider that there is a reasonable probability that had the defendant presented the evidence or testimony he now suggests the outcome of the proceeding would have been different. The evidence of the defendant's guilt, including his confession, was overwhelming. Although he claims that he intended to testify and call several witnesses in his behalf, he has not submitted affidavits setting out with any degree of specificity what he would testify to or what the other witnesses he intended to call would have stated at trial. The defendant relies principally on the speculative assertion that had he testified, he may have been able to contradict Wrona's testimony by telling the jury that the actual perpetrator had told him of the events surrounding the victim's murder and that he, out of braggadocio, had said he had committed the crime. He does not, however, state who told him that he had committed the murder, and given the evidence presented by the State, it cannot be seriously contended that his testimony would have been persuasive. On the contrary, the evidence might have been considered insulting by the jury and been harmful to the defendant. Too, as stated, the defendant has previous convictions and testifying would have brought them to the attention of the jury.

Too, even if the testimony of the witnesses the defendant names would have impeached the testimony of Walter Hamlin who placed the defendant's brother in Cedar Point on the night of the murder, or weakened the testimony concerning the shoe print found at the scene of the crime, we cannot say that the evidence would have had an appreciable effect on the jury. We cannot say that the criticized conduct of counsel, even if considered inadequate, was sufficient so to Judge that there was a reasonable probability that, but for counsel's fault, the result of the trial would have been different. Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065.

The defendant also argues that he was denied his sixth amendment right to effective assistance of counsel by the court's denial of his motion for substitution of counsel prior to trial. The record shows that on November 1, 1984, Wayne McFarland, the public defender of Grundy County, was appointed to represent the defendant. (The public defender of La Salle County was unable to represent the defendant due to a conflict created by his representation of the defendant's brother Bruce for the same offenses of which the defendant was convicted here.) On January 3, 1985, defense counsel filed a motion for the appointment of a special assistant defense attorney on the ground that it was unduly burdensome for him to handle the case in La Salle County as he practiced in Grundy County. The court granted the motion and appointed Daniel Bute, an assistant La Salle County public defender, as a special assistant to McFarland.

The State then filed a motion to have Bute removed on the ground that there existed a conflict of interest in his representation of the defendant. It was alleged that Bute was currently representing the sheriff of La Salle County in various civil matters; that his law partner had previously represented the victim's son (who was called as a witness for the State at trial) in a real estate transaction; and that he had previously represented prosecution witness Hockings in a divorce proceeding. The State argued that Bute would be precluded from adequately cross-examining those witnesses and therefore his representation of the defendant would be deficient. At a hearing on the State's motion, the court admonished the defendant of the possible conflict posed by Bute's representation, and the defendant stated that he was willing to waive his right to complain of any possible conflict. The court found that the defendant's waiver was voluntary, knowing, and intelligent and denied the State's motion.

On April 30, 1985, a week prior to the scheduled commencement of trial, the defendant filed a motion to permit McFarland to withdraw as counsel and substitute Bute as counsel of record. In support, McFarland stated that he had recently resigned as Grundy County public defender and that the trial would conflict with "family matters which are to take place starting on June 8th." The court denied the motion, stating that it was untimely, having been raised on the eve of trial. The court also stated that although Bute was very capable of handling the case, he had been appointed only to relieve McFarland of the trips to La Salle County for trial preparation and not to participate at trial. On May 2, the defendant filed a motion to continue Bute's representation through the trial, which was also denied.

The defendant argues that the trial court abused discretion in failing to permit Bute to become counsel of record at trial or to continue to assist McFarland at trial. He claims that the court's denial of both requests improperly interfered with his attorney-client relationship and left him with ineffective counsel in violation of the sixth amendment.

Although the sixth amendment guarantees an accused the right to assistance of counsel in a trial for certain types of crimes, it does not include the right to select counsel of choice, particularly where the exercise of that claimed right would delay or impede the effective administration of Justice. (People v. Hall (1986), 114 Ill. 2d 376, 403; People v. Taylor (1984), 101 Ill. 2d 508, 523; People v. Friedman (1980), 79 Ill. 2d 341, 349.) The record shows that Bute may not have been able to properly cross-examine several of the State's witnesses at trial due to prior and existing relationships with those witnesses. Too, Bute was appointed solely to aid McFarland in pretrial preparation, and consequently, as the defendant's motion was made on the eve of trial, it can reasonably be assumed that Bute would not be adequately prepared for trial, thus causing a delay of trial. The defendant offered no persuasive reasons for substituting counsel and we cannot say that the trial court abused discretion in denying the defendant's request to substitute Bute as counsel of record. See People v. Hall (1986), 114 Ill. 2d 376, 402.

The defendant argues that he was willing to waive his right to conflict-free counsel, and because Bute had been appointed early in the proceedings, and was familiar with the case and willing to substitute as lead counsel of record for McFarland, there was no proper reason to refuse his request.

The defendant is correct in his contention that an accused may waive his right to the sixth amendment guarantee to conflict-free representation by counsel. It does not follow, however, that the court must accede to accused's willingness to waive the conflict. This was made clear by the Supreme Court in Wheat v. United States (1988), 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692.

In Wheat, the defendant was charged with participating in a drug-distribution conspiracy. Two days prior to trial, he requested that an attorney, who also represented two of his codefendants, represent him in place of his original counsel. The prosecution objected on the ground that the attorney's representation would create a conflict of interest in that the defendant might be called to testify against one of his codefendants and that the prosecution had asked that the other codefendant be made available to testify at the defendant's trial. Although the defendant stated that he was willing to waive any objection to potential conflicts that may arise, the court denied his motion for substitution of counsel.

On certiorari, the Supreme Court held that the trial court did not abuse discretion in denying the defendant's motion for substitution of counsel. The Court rejected the defendant's argument that his waiver cured any problem created by the potential conflict, stating that "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession" and that "their judgments remain intact on appeal." (486 U.S. at 160-61, 100 L. Ed. 2d at 149-50, 108 S. Ct. at 1697-98.) The Court pointed out that if a court accepts a proffer of waiver of a conflict created by multiple representation, a defendant could thereafter claim he did not receive effective assistance of counsel if the advocacy of counsel is impaired by the conflict. On the other hand, if the court refuses to accept the waiver, and insists that the defendants be separately represented, the defendant can claim error in being denied his counsel of choice. The court would then "face the prospect of being 'whipsawed' by assertions of error no matter which way they rule." (486 U.S. at 161, 100 L. Ed. 2d at 150, 108 S. Ct. at 1698.) Concluding, the Court stated:

"e think the District Court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. In the circumstances of this case, with the motion for substitution of counsel made so close to the time of trial the District Court relied on instinct and judgment based on experience in making its decision. We do not think it can be said that the court exceeded the broad latitude which must be accorded it in making this decision." 486 U.S. at 163, 100 L. Ed. 2d at 151, 108 S. Ct. at 1699.

Although we are not confronted with a case of multiple representation as that presented in Wheat, the Court's reasoning is persuasive here. As stated, a potential conflict of interest existed in Bute's representing the defendant, which may have precluded him from properly cross-examining certain witnesses the State indicated it may call at trial. Although the defendant waived his right to conflict-free counsel, the court appointed Bute only to assist in trial preparation. Presumably, it was the court's belief that the potential conflict would not affect Bute's representation of the defendant in matters concerning pretrial preparation. Given these circumstances, we cannot say that the trial court erred in denying the defendant's motion for substitution of counsel.

The defendant also asserts that there was error in the trial court's refusal to continue Bute's appointment into trial. He contends that "the relevant facts pertaining to this argument suggest that the trial court's refusal . . . was based on financial concerns."

The defendant again has offered no persuasive reason why it was necessary to have Bute assist McFarland at trial. In any event, the defendant has failed to show that he was prejudiced by his trial counsel's performance. As the Supreme Court of the United States declared in Wheat v. United States (1988), 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692, "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." (486 U.S. at 159, 100 L. Ed. 2d at 148, 108 S. Ct. at 1697. See also Morris v. Slappy (1983), 461 U.S. 1, 13-14, 75 L. Ed. 2d 610, 620-22, 103 S. Ct. 1610, 1617-18; Jones v. Barnes (1983), 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308.) The record shows that the defendant received effective assistance of counsel throughout the guilt phase of trial. Counsel vigorously cross-examined witnesses, made numerous motions and posed objections when appropriate. We Judge there was no error in the court's denial of the defendant's motion to permit Bute to assist at trial.

Another contention of the defendant is that the trial court erred by failing to suppress inculpatory statements he made to prosecution witness Harold Wrona in a hotel room in Maryland which were recorded by Maryland law ...


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