Appeal from the Circuit Court of Cook County. No. 98 CR 3865 Honorable Edward M. Fiala Judge Presiding
The opinion of the court was delivered by: Justice Tully
Following a bench trial, defendant, John Crowe, was found guilty of first degree murder and sentenced to 50 years' imprisonment. On appeal, defendant contends the trial court erred in granting the State's motion to disqualify defense counsel, thereby depriving defendant of his sixth amendment right to counsel of choice. This court has jurisdiction pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603)). For the reasons set forth below, we reverse and remand for a new trial.
On January 28, 1998, defendant, John Crowe, his brother, Stephen Crowe, Carlos Sanchez, Shane Masini, and Michael Rivera were charged by indictment with first degree murder in the shooting death of Marcus Lee. Defendant and Stephen Crowe were to be tried jointly and retained Edward Edens (Edens) as their counsel. On July 6, 1998, after several continuances, the trial court set a trial date of August 10, 1998. On August 10, 1998, however, the day trial was set to begin, the State presented a motion to disqualify Edens as defense counsel. The State maintained there was a potential conflict of interest, in violation of Rule 3.7 of the Illinois Rules of Professional Conduct, because Edens could be called by the State to testify as a rebuttal witness against his clients. *fn1 Specifically, the State proffered that on January 20, 1998, Edens came to the Area Three police station and spoke to two police officers, Detectives Schorsch and Aiken, and related to them certain information he obtained from his clients, the Crowe brothers. The State represented that the information purportedly related by Edens, and memorialized in a police report, was as follows.
Late in evening on January 9, 1998, defendant and Stephen Crowe went to a party on Laramie Street. Several persons were present whom defendant and Stephen knew by the nicknames of Wolfie, Ice Mike, Joker and Little Suzie. At approximately 3 a.m., defendant and Stephen left the party in a van driven by Wolfie. Wolfie sat in the driver's seat, Little Suzie sat in the front middle seat, and Ice Mike sat in the front passenger seat, while defendant, Stephen and Joker sat in the back seat. Wolfie drove to the Lathrop housing project, stopped the van suddenly, and Ice Mike jumped out. Stephen and defendant heard several gunshots after which Ice Mike returned to the van. Wolfie drove away and eventually left Stephen and defendant in an alley near Belmont and Leavitt Streets. Stephen and defendant met a friend known as "Dice," which was also Stephen's nickname, who drove defendant and Stephen back to the party.
The State proffered that after relating this information, Edens informed the detectives that his clients were afraid to come forward to the police and state what they knew about the incident because they feared gang retaliation. Edens informed the detectives that he would attempt to locate defendant and Stephen Crowe and bring them to the police station.
In response to the State's proffer, Edens proffered that the detectives with whom he spoke on January 28, 1998 were mistaken as to whom had given him the information he related to them. Edens stated that he told the detectives only that he obtained the information from a client. Edens speculated that the detectives mistakenly assumed John and Stephen Crowe were the clients to whom he was referring and their police report reflected this mistaken assumption. Edens stated, in actuality, at the time he spoke with the detectives, he had not yet been retained by or spoken to defendant or Stephen Crowe. Rather, the manner in which Edens came to possess the information he related to the detectives was as follows.
On January 28, 1998, Israel Jobert, a client whom Edens represented in an unrelated matter, called Edens regarding the possibility of representing the Crowe brothers. Edens told Mr. Jobert that he needed more information about the case, and agreed to meet at a nearby tavern. At the tavern, Edens was met by Stephen Crowe's wife and several other individuals who were members of an association to which defendant and Stephen Crowe also belonged. It was these individuals, not the Crowe brothers, who related the information which Edens later related to the police. Edens stated that at the time he spoke with the detectives, he had neither seen nor met with defendant or Stephen Crowe and was not sure how to locate either of them.
Following Edens' proffer, the trial judge commented that even assuming for purposes of argument that Edens' version of events was true, the State still would not be precluded from calling Edens as a rebuttal witness in the event the Crowes elected to testify, in which case, it would be a question for the trier of fact to determine credibility, whether or not Edens made the statement, and under what circumstances the statement was made. The court further commented that the potential conflict was a serious concern, in view of the nature and the gravity of the charges against the defendants. Edens responded that the likelihood of an actual conflict arising was remote, in that his clients from the inception of the case indicated they did not intend to testify. Edens further noted that while his clients were aware of the potential conflict, they strongly desired that he remain as their counsel. For purposes of clarification, the court determined to hold an evidentiary hearing and allow the testimony and cross-examination of the detectives with whom Edens spoke on January 28, 1998.
At the hearing, Detective Schorsch testified on behalf of the State. Detective Schorsch stated that on January 20, 1998, he, Detective Labee, Detective Aiken, and Detective Gorski were assigned to investigate the shooting death of Marcus Lee. At approximately 3:20 p.m., Edens arrived at the Area Three police station and asked the detectives if they were looking for John and Stephen Crowe in relation to the Lathrop Housing Project homicide. Detective Schorsch informed Edens that defendant and Stephen Crowe were wanted for questioning in connection with the homicide. Edens informed Detective Schorsch that he had spoken to John and Stephen Crowe, and related to him the information as previously proffered by the State. Detective Schorsch testified that Edens specifically stated he obtained this information from speaking with his clients, defendant and Stephen Crowe. Detective Schorsch further stated that his conversation with Edens lasted about five to ten minutes, and that in his 25 years as a police officer, he had never known an attorney to come forward to the police to relate information confided to him by a client.
On cross-examination, Detective Schorsch denied that Edens told him simply that he had obtained the information from a "client." Rather, Detective Schorsch maintained that Edens specifically stated that he obtained the information from speaking with defendant and Stephen Crowe. Detective Schorsch agreed that Edens told him he would try to locate defendant and Stephen Crowe. Detective Schorsch denied that Edens qualified his statements to police by stating that he believed his rendition of events would be consistent with what defendant and Stephen would tell the police if they were located and came forward. Detective Schorsch stated he believed that Edens had contact with defendant and Stephen Crowe, prior to speaking to the detectives, because Edens specifically stated that he obtained the information from speaking with defendant and Stephen Crowe.
At the close of the hearing, the State argued that although the Crowe brothers indicated they would not testify at trial, they could change their minds and testify, in which case, Edens could be called as a rebuttal witness by the State. Edens submitted that his clients were aware of the potential conflict, but had great confidence in his ability to represent them and desired to retain him as their counsel in spite of the potential conflict. Edens further argued that the probability that his clients would testify at trial was extremely remote and, in any event, it would be unnecessary for the State to call him as a witness, as the State could call the individuals with whom Edens spoke at the tavern to testify in his stead. Edens also represented that in the event his clients decided to testify, he would have another attorney take over the case at that point, and that he knew a prospective co-counsel who was familiar with the case who was prepared to do so. Edens resubmitted that the information he related to the detectives was not obtained from his clients, the Crowe brothers, but from other persons.
Based on the arguments and evidence presented, the trial court concluded "there was a conversation," the nature and extent of which the trier of fact would have to determine. The court held that because Edens could be called to testify against his clients if they elected to testify, he could not serve as defense counsel and was subject to disqualification. Defendant and Stephen Crowe thereafter retained new counsel, and on October 14, 1998, a joint bench trial commenced. Defendant ultimately was found guilty of first ...