robbery. The state relied primarily on the testimony of two witnesses. David Burns, a store employee, testified at trial that he was working in Winfield Groceries on October 27, 1984, at approximately 7:00 p.m. William Wright, another employee, and Winfield Johnson, the store's owner, were also working. Johnson was at the cash register to the left of the front door, Wright was in the restroom, and Burns was restocking the soda cooler in the middle of the store, to the right of the front door.
A man identified as Xavier Young walked into the store and asked Burns for some meat. Burns directed Young to the meat counter in the rear of the store where Wright waited on him. A second man, identified as petitioner Buford, entered the store and stood at the middle aisle. A third man identified as Alfred Dismukes entered the store and stood behind a customer at the checkout counter.
When the customer left, Buford ran to the front door and locked it. Dismukes then pulled a gun and announced a stick-up. Armed with a pistol, Buford ran behind the counter and told Johnson to open the cash register. Johnson refused. Meanwhile, Dismukes approached Burns at the freezer near the front door and told him to lie face down on the floor. Burns laid down on the floor on his stomach. From this position, Burns could see Buford and Johnson at the checkout. Buford then pushed Johnson down the middle aisle and down onto his stomach. Burns heard Johnson say, "Oh no." Burns then heard a gun shot.
After the shot, Dismukes ordered Burns to open the cash register. As Burns passed the middle aisle, he saw Johnson lying on the floor and Buford going through his belongings. Burns then opened the cash register, and Dismukes took the food stamps and cash. Buford then called out, "Hey, come on," and Young came running from the rear of the store. Buford, Dismukes and Young left the store together. Burns watched them run east on Cullerton and then cross the street. Five weeks later, on November 25, 1984, Burns tentatively identified Buford's photograph in a photo array. On cross-examination, Burns stated that he told the police that the photo of Buford "could be him."
Detective James Antonacci of the Chicago Police Department then testified that on November 25, 1984, Burns had made a tentative identification of Buford from the photo array. Officer Antonacci arrested Buford on December 3, 1984, and advised him of his Miranda rights. Buford told him that he had no knowledge of the incident and denied his participation. That same day, however, Burns identified Buford in a lineup. Detective Antonacci testified that, after the identification, Buford confessed to the robbery and murder.
In his statement to Antonacci, Buford said the robbery had been the idea of an employee at Winfield Groceries nicknamed "Kewanee." Kewanee had discussed the idea with Buford and Young. He explained that Johnson was an old man who usually carried about $300 in cash on him and had money in the cash register and under the register drawer. Kewanee advised Buford and Young that the best time to rob the store would be on a Saturday at approximately 7:00 p.m.
Antonacci testified that Buford then detailed the events surrounding the robbery and killing. Buford stated that he left his house on Saturday, October 22, 1984, armed with a.22 caliber gun and a.38 caliber gun. He went to a nearby park where he met Young and Curtis Williams. Dismukes joined them and asked to participate in the robbery. Buford gave Dismukes the.22 caliber gun to use. The four men then drove to Winfield groceries in Williams' car. Dismukes, Young and Buford got out of the car and entered the store. Dismukes went to the back of the store, while Buford and Young remained in the front pretending to shop. When the last customer left, Buford closed the door and ran over to Johnson, grabbed him with one hand and took him to the middle aisle where Buford pushed him to the floor. When Johnson started to struggle, Buford shot him.
Buford further stated that Young and Dismukes were at the cash register while he was struggling with Johnson. The three then left, got into Williams' car and drove away. Buford signed and initialled his post-arrest statement. Detective Antonacci witnessed the signature.
The defense rested without calling any witnesses. During closing arguments, Buford's Attorney Keith Davis argued that Johnson had not been shot in cold blood as the state suggested. Rather, Johnson had been accidentally shot while struggling for the gun. Davis further argued that the evidence showed that there was no intention to hurt anyone, only an intent to rob Johnson. Davis also attacked the strength of the evidence regarding what actually transpired between the gunman and Johnson. He stated that "there were no eyewitnesses to the shooting, other than the testimony which the State produced by its own witnesses, taken from a statement." Davis concluded by stating that it was uncontroverted in this case that there was an accidental shooting of Johnson following a scuffle over a gun. He then asked the court to "enter an appropriate finding, that finding being not guilty of murder."
The court found Buford guilty of murder, armed robbery and unlawful restraint. The state then requested a death penalty hearing.
On November 26, 1985, Davis petitioned the court for leave to withdraw as Buford's attorney on the grounds of a possible conflict of interest. Davis explained that on November 7, 1985, during a status court date, the court had read a letter in aggravation from James Winford Johnson, the victim's son. Defense counsel realized that he had known the victim's son 12 years ago. After he advised Buford of this fact, Buford indicated that he wanted different counsel for the sentencing and death penalty hearing.
After explaining the situation to the court, defense counsel stated that he did not think he should withdraw prior to a decision on his motion for a new trial and arrest of judgment. At the time those motions were filed, he had no knowledge of having known the victim's son. The court then denied Buford's motions for a new trial and arrest of judgment and granted defense counsel's leave to withdraw.
When the case resumed with new counsel, a jury was selected for the bifurcated death penalty hearing. At the first stage of the hearing, the jury found Buford eligible for the death penalty on the grounds that he was at least 18 years old at the time of the offense, and the victim was killed in the course of an armed robbery. At the second stage of the hearing, the jury declined to impose the death penalty. At a later sentencing hearing, the court then sentenced Buford to consecutive terms of 80 years for murder and 10 years for armed robbery.
On appeal, Buford argued for reversal on four grounds. First, he contended that defense counsel Davis failed to act as his advocate, depriving him of his right to effective assistance of counsel. Specifically, Buford argued that defense counsel (1) conceded Buford's guilt during closing argument and raised a legally incorrect defense, (2) failed to question the eyewitness and the police officer who had taken the defendant's incriminating statement and (3) failed to develop an intoxication defense to the murder charges. Second, he argued that he was denied effective assistance where his attorney revealed before sentencing that he had at one time been friendly with the deceased's son. Third, he claimed that the trial court improperly imposed consecutive sentences for murder and armed robbery where the facts evidenced a single course of conduct. Fourth, he argued that the sentence was excessive. On December 30, 1988, a unanimous panel of the Illinois Appellate Court rejected Buford's arguments and affirmed the conviction. People v. Jimmie Buford, 178 Ill.App.3d 329, 127 Ill. Dec. 600, 533 N.E.2d 472 (1st Dist. 1988). The Illinois Supreme Court denied leave to appeal. Having apparently exhausted all available state court remedies in satisfaction of 28 U.S.C. § 2254(b), Buford filed this habeas petition raising the same general issues that he raised on appeal. Although he has not reiterated the specific arguments he had raised with respect to each issue, he has generally stated in his petition that he is asserting all the grounds that he presented in the state courts. We consider each in turn.
Ineffective Assistance of Counsel
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), establishes the two-part test for ineffective assistance of counsel claims. To prevail on an ineffective assistance of counsel claim, the defendant must show that counsel's performance fell "outside the wide range of professionally competent assistance" and that his defense was prejudiced by the error. Id. at 687, 690, 104 S. Ct. at 2062, 2064. Despite the collateral nature of habeas proceedings, the conclusion whether counsel has rendered ineffective assistance of counsel is a mixed question of law and fact which we must review de novo. Id. at 698, 104 S. Ct. at 2070. Buford's petition presents both types of ineffective assistance: lack of conflict-free assistance and lack of reasonable performance assistance. See Calhoun, How to Thread the Needle: Toward a Checklist-Based Standard for Evaluating Ineffective Assistance of Counsel Claims, 76 Geo. L.J. 413 (1988).
A. Conflict of Interest
In order to bring a Sixth Amendment claim based on a conflict of interest, Buford "must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333 (1980). Buford has offered no evidence, nor has he made any allegations, either in his petition or in his brief before the Illinois Appellate Court, that his attorney was aware of his past relationship with the victim's son during the trial or prior to the time the post-trial motions were filed. Indeed, the record clearly indicates the contrary. If counsel was unaware that there was a connection between a former acquaintance and the victim, then he could not have been operating under an actual conflict. Absent grounds supporting an actual conflict, we reject Buford's Sixth Amendment conflict of interest contention.
B. Reasonable Performance
1) Concession of Guilt
Buford next contends that his counsel's closing argument amounted to a concession of guilt and therefore his representation was ineffective because it deprived him of his right to have the issue of his guilt or innocence presented to the trier of fact as an adversarial issue. Buford's claim is one that many courts have recognized as stating a Sixth Amendment violation. See, e.g., Francis v. Spraggins, 720 F.2d 1190 (11th Cir. 1983), cert. denied, 470 U.S. 1059, 105 S. Ct. 1776, 84 L. Ed. 2d 835 (1985); Wiley v. Sowders, 647 F.2d 642 (6th Cir.), cert. denied, 454 U.S. 1091, 102 S. Ct. 656, 70 L. Ed. 2d 630 (1981); People v. Hattery, 109 Ill.2d 449, 488 N.E.2d 513, 94 Ill. Dec. 514 (1985), cert. denied, 478 U.S. 1013, 106 S. Ct. 3314, 92 L. Ed. 2d 727 (1986). In Wiley, the court explained the nature of the claim:
Unquestionably, the constitutional right of a criminal defendant to plead 'not guilty,' . . . entails the obligation of his attorney to structure the trial of the case around his client's plea. . . . In those rare cases where counsel advises his client that the latter's guilt should be admitted, the client's knowing consent to such a trial strategy must appear outside the presence of the jury on the trial record in the manner consistent with Boykin [ v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)].
Although statements made by attorneys in closing arguments are not evidence, nevertheless, for all practical purposes, counsel's admission of guilt on behalf of his client denied to petitioner his constitutional right to have his guilt or innocence presented to the jury as an adversarial issue. Counsel's complete concession of petitioner's guilt nullified the adversarial quality of this fundamental issue. 647 F.2d at 650.