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People v. Murry

June 16, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ERICK L. MURRY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 97--CF--2071 Honorable Barbara C. Gilleran-Johnson, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Following a jury trial, defendant, Erick Murry, was found guilty of the unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)). Defendant appeals, arguing that his conviction should be reversed and the cause remanded for a new trial because a per se conflict of interest arose when his attorney represented both defendant and two co-defendants during preliminary hearings. We disagree, and we affirm.

Defendant, co-defendant Shenell Washington and co-defendant Joaquin Smith were all charged by information with the unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)) and the unlawful possession of drug paraphernalia (720 ILCS 600/3.5 (West 1996)). The basis for these charges stems from the fact that defendant and co-defendants were found on August 7, 1997, at Washington's home with cocaine, a pipe, and other drug paraphernalia.

On August 18, 1997, a probable cause hearing was held, and defendant and co-defendants were represented by one public defender, Martin Shaffer. The trial court found that there was probable cause, and an arraignment for defendant and co-defendants was held on September 4, 1997.

At the arraignment, Shaffer again represented defendant and the two co-defendants. Defendant, who was in custody and not present in court, and co-defendants pleaded not guilty to the two charges. The trial court then set the matter over to October 8, 1997.

At the October 8, 1997, proceedings, Shaffer filed a motion to terminate the appointment of the public defender and to appoint conflict counsel. The trial court granted the motion and appointed a new attorney for co-defendant Washington and another attorney for co-defendant Smith. Shaffer continued to represent defendant.

At the trial, co-defendant Washington testified. Washington admitted that she pleaded guilty in exchange for probation and that she was a recovering drug addict. Washington was asked about the statement she made to police, and she admitted that she never indicated in her written statement that defendant brought the cocaine into her apartment. Washington contended in her written statement only that the drugs did not belong to her and that someone else brought the drugs into her home.

The problem that defendant alleges arose when the following dialogue took place:

"MR. SHAFFER: Well, his name isn't mentioned in your written?" [sic]

"WASHINGTON: It's not mentioned, but I do recall talking with you about the drugs not being mine and you saying that you were sure." Shaffer objected, providing no basis for the objection, and the trial court ruled that defendant's answer was not responsive."

On redirect examination, the assistant State's Attorney asked Washington some questions and the problem defendant alleges arose as follows:

"MR. MORRISON [Assistant State's Attorney]: When was the first time that you mentioned ...


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