Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 81-CF-396. Honorable Thomas Ewert Judge, Presiding.
Petition for Leave to Appeal Denied December 6, 1995.
Present - Honorable Allan L. Stouder, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Stouder, P.j., and McCUSKEY, J., concur.
The opinion of the court was delivered by: Slater
JUSTICE SLATER delivered the opinion of the court:
Defendants Earnest Wilson and Charles Harris, residents of Stateville Correctional Center, together with another inmate, Fred Collins, were charged with the 1981 murder of fellow inmate George Bailey (Ill. Rev. Stat. 1979, ch. 38, pars. 5-2(c), 9-1(a)(1)). They were tried jointly, found guilty and sentenced to life imprisonment. Their convictions and sentences were sustained on appeal to this court in an order issued June 2, 1986 ( People v. Harris (1986), 143 Ill. App. 3d 1163, 507 N.E.2d 557, 107 Ill. Dec. 644 (unpublished order under Supreme Court Rule 23)), and by the Illinois Supreme Court in an opinion filed on June 20, 1988 ( People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335, 122 Ill. Dec. 76). In December of 1991, defendants filed petitions for post-conviction relief. After an evidentiary hearing, the petitions were denied in a written opinion dated April 29, 1994.
In this appeal, defendants contend that the trial court erred in rejecting their claims that trial counsel was ineffective because of conflicts of interest, and that appellate counsel was ineffective for failure to raise an issue pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Defendants request that their convictions and sentences be vacated and that they be granted a new trial.
Initially, defendants contend that a fee-splitting arrangement between attorney Earl Washington, defendant Wilson's appointed counsel, and attorney Joshua Sachs, defendant Harris' appointed counsel, deprived them of their sixth amendment right to effective assistance of counsel. Defendants theorize that, because Washington had a monetary interest in co-counsel Sachs' participation in the trial, he pursued a "unified defense" theory at trial. Defendants claim that they would have testified to a prior confrontation between Collins and the victim which gave Collins alone a motive to commit the murder. At the post-conviction hearing, Harris also stated that he was denied his right to testify because his testimony would have incriminated Wilson. The defendants charge that their testimony was not put on because of Washington's conflict of interests, which they did not learn of until after their convictions.
The type of conflict asserted here is not a per se conflict, because the attorneys' financial agreement would not have benefitted from an unfavorable verdict for the defendants. (See People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30, 121 Ill. Dec. 224.) Thus, the conflict posed in this case requires reversal of defendants' conviction only upon a showing that the conflict actually affected Washington's performance. See People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30, 121 Ill. Dec. 224.
Where a defendant charges inadequate representation for failure to introduce the defendant's own favorable testimony at trial, he must also establish that the testimony would have been available at the time of trial. Without a showing that the defendant contemporaneously asserted his right to testify, it will be assumed that he acquiesced in counsel's advice not to testify. ( People v. Thompkins (1994), 161 Ill. 2d 148, 641 N.E.2d 371, 204 Ill. Dec. 147 (citing People v. Brown (1973), 54 Ill. 2d 21, 294 N.E.2d 285).) Thus, a defendant's claim advanced on post-conviction that he told his attorney prior to trial that he wished to testify does not establish, in itself, that trial counsel's advice or performance resulted from an actual conflict of interests. Thompkins, 161 Ill. 2d 148, 641 N.E.2d 371, 204 Ill. Dec. 147.
In this case, it appears that attorney Washington represented his client's interests competently, but with something less than full cooperation of co-defendants Harris and Collins. Prior to trial, Washington filed a motion to sever on the ground that Wilson's defense was antagonistic to his co-defendants'. At the hearing on the motion, Washington asserted that Harris and Collins could testify that Wilson did not order them to kill Bailey. Washington admitted, however, that he could not assume that the co-defendants would take the stand to testify or even what they would say. The trial court ruled that no antagonism had been established, and on review the decision was sustained. See Harris, 123 Ill. 2d 113, 526 N.E.2d 335, 122 Ill. Dec. 76.
At their post-conviction hearing, defendants stated that they were precluded from testifying because of attorney Washington's concern that Collins could get the death penalty or that Harris' testimony would incriminate Wilson. Harris admitted, however, that he never told Washington or Sachs what he would have testified to if called to the stand. Moreover, there was no evidence that either defendant contemporaneously asserted their right to testify at trial.
Given that the decision by the trial court to try the defendants jointly was not error, we agree with the State that the "unified defense" strategy ultimately directed by attorney Washington was probably the best strategy to pursue at trial. Under the circumstances, it is improbable that the defendants would have waived their fifth amendment rights to testify at the trial. Thus, we agree with the trial court that defendants have failed to establish that the fee-splitting arrangement between Washington and Sachs, though clearly illegal, actually affected Washington's performance, such that defendants were denied their right to effective assistance of counsel at trial.
Defendants' charge of ineffective assistance of appellate counsel for failing to advance a Batson issue prior to the disposition of their direct appeal is more troubling. All of the defendants and the victim in this case were black. At the time of defendants' trial in 1983, defense counsel objected to the racial composition of the venire and moved to dismiss based on the State's use of peremptory challenges to exclude blacks from the jury. The trial court denied defendants' motions for failure to establish systematic exclusion of blacks over time pursuant to Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. Ultimately, the State used peremptory challenges to exclude six of seven potential black jurors. One black woman served on the jury.
In their direct appeal to this court, defendants raised numerous issues, but they did not resurrect a challenge to the racial composition of the venire or the State's use of its peremptory challenges. Then, during the pendency of defendants' appeal in this court, the Supreme Court handed down its decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Batson lessened the defendants' burden by allowing them to rely solely on the facts of their case to establish racial discrimination in the jury selection process. (See People v. Pecor (1992), 153 Ill. 2d 109, 606 N.E.2d 1127, 180 Ill. Dec. 50.) The Batson rule was later determined to apply retrospectively to cases, such as this, which were pending on direct review at the time Batson was decided. ( Griffith v. Kentucky (1987), 4 ...