of the record as represented by petitioner leads it to concur in that conclusion. Therefore, petitioner cannot and has not demonstrated any prejudice arose from the prosecution's use of the letter, thereby failing to satisfy the second prong of Strickland.
Petitioner also argues that counsel was ineffective because he failed to cross-examine the complainant on several purported inconsistencies between the letter and her testimony. However, the inconsistencies petitioner alleges are not contradictory as he claims; instead, they are merely omissions from the letter of minute facts to which the complainant testified at trial. In fact, the only inconsistency sufficient for impeachment of the complainant was the difference between the testimony and the letter regarding codefendant's ability to have sex due to her physical condition. Counsel may have wanted to refrain from highlighting other parts of the letter more damaging to petitioner. Thus, counsel's decision to avoid using the letter to impeach complainant was sound trial strategy, and petitioner has failed to overcome the strong presumption of reasonableness accorded to counsel. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Petitioner claims he was denied effective assistance of counsel because his counsel failed to object to the admission of complainant's letter. Petitioner has not established there was a reasonable probability that, but for the error, the result would have been different, since complainant's testimony and the statements of both petitioner and codefendant were sufficient to convict petitioner. Accordingly, at least on the prejudice prong, petitioner has not established constitutionally ineffective assistance on this point.
Petitioner further contends defense counsel was ineffective for failing to present evidence contradicting complainant's testimony. First, petitioner claims counsel should have called Tanya Bergen, who would have testified that, contrary to complainant's testimony, complainant had never spoken to her about the incident. When a defendant bases his claim of ineffective assistance on a failure to call witnesses, he must "explain their absence and . . . demonstrate, with some precision, the content of the testimony they would have given at trial." United States ex rel Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (footnote omitted). Petitioner has presented an affidavit from Ms. Bergen, stating her testimony would have consisted of a denial that the complainant ever told her about the incident. However, counsel's choice not to call her may have been based on his doubts as to her believability as a witness. Ms. Bergen is the natural daughter of petitioner and codefendant, an issue the prosecution surely would have exploited. Counsel may have believed the best decision would be to refrain from calling her as a witness, because of this potential lack of credibility associated with her. Thus, counsel's decision not to call her was sound trial strategy and entitled to a presumption of correctness, which petitioner has not overcome. Petitioner also contends defense counsel should have called two of complainant's grade school teachers, who would have testified that complainant was an "inveterate liar." (Petitioner's Opening Brief at 27) However, such testimony would have been inadmissible according to Illinois law, and counsel was not ineffective for failing to introduce it. A witness in a case may be impeached by proving he or she has a poor reputation for veracity and truth. People v. Nash, 36 Ill. 2d 275, 280, 222 N.E.2d 473, 475 (1966), cert. denied, 389 U.S. 906, 88 S. Ct. 222, 19 L. Ed. 2d 223 (1967). However, opinion testimony is inadmissible on a character trait such as truthfulness. People v. Moretti, 6 Ill. 2d 494, 523-24, 129 N.E.2d 709, 725, (1955), cert. denied, 356 U.S. 947, 78 S. Ct. 794, 2 L. Ed. 2d 822 (1958). In the present case, there is no suggestion that the two teachers ever discussed complainant's reputation with each other or anyone else in the community. The letters petitioner proposes should have been admitted were merely opinions and, therefore, inadmissible. Indeed the Illinois Supreme Court applied the above reasoning to this character-for-credibility evidence in holding that such evidence would have been inadmissible for petitioner's codefendant. People v. Emmaline Williams, 139 Ill. 2d 1, 20-21, 150 Ill. Dec. 544, 563 N.E.2d 431, 440 (1990), cert. denied, 499 U.S. 979, 111 S. Ct. 1630, 113 L. Ed. 2d 726 (1991). Accordingly, counsel's decision to forego any attempt to admit them into evidence was not objectively unreasonable, and petitioner's claim is rejected.
Effective assistance of counsel was provided to petitioner even though counsel failed to produce hospital records allegedly supportive of petitioner's denial that he had sexual intercourse with complainant. Complainant testified that more than a year after the incident, she was examined at a hospital. At trial, the prosecution did not introduce evidence of any hospital records relating to whether she had engaged in intercourse prior to the examination date. Petitioner now claims such records exist and will exculpate him. This argument has no merit, however, since petitioner has not demonstrated that such records exist or that they would establish his innocence. Additionally, petitioner has not demonstrated any prejudice resulting from counsel's failure to present any other evidence, such as evidence of petitioner's background, which may have been beneficial. Without the requisite showing of unreasonableness or prejudice, both arguments must fail.
Counsel's simultaneous representation of petitioner and codefendant was not a conflict of interest sufficient to deny petitioner a fair trial. Joint representations do not constitute per se violations of the sixth amendment." United States ex rel. McCall v. O'Grady, 908 F.2d 170, 172 (7th Cir. 1990) (citing Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 1177, 55 L. Ed. 2d 426 (1978)). A criminal defendant is entitled to an attorney who gives his client his undivided loyalty. United States v. Barnes, 909 F.2d 1059, 1065 (7th Cir. 1990) (citing United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir. 1986), cert. denied, 479 U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987)). Accordingly, a claim of ineffective assistance is possible when the attorney is burdened by a conflict of interest. 909 F.2d 1059 at 1065. To establish ineffective assistance based on conflict of interest, petitioner, who did not object at trial, must demonstrate an actual conflict of interest that adversely affected the performance of his counsel. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333 (1980). Proof of an actual conflict then creates a presumption of prejudice. Id. at 345-50, 100 S. Ct. at 1716-19. Petitioner has not alleged any specific acts by counsel exemplifying the necessary actual conflict of interest, and, therefore, his argument of ineffective assistance of counsel must be rejected.
Petitioner's final arguments are that he was denied effective assistance of counsel because his attorney failed to object to the prosecutor's improper arguments and failed to make proper arguments. Both of these contentions are meritless, since petitioner has not pointed to any specific acts of counsel or demonstrated any actual prejudice to him as a result of counsel's claimed inadequacies.
Petitioner has not stated any valid grounds upon which a writ may issue. Accordingly, Roy Williams's petition for a writ of habeas corpus is denied.
Date: February 10, 1994
JAMES H. ALESIA
United States District Judge