Appeal from the Circuit Court of Cook County Honorable Themis Karnezis, Judge Presiding
The opinion of the court was delivered by: Justice McNULTY
This case comes before us for a second time. The trial court, in a bench trial, found that defendant, Eugene Moore, attempted to murder Mickey Russell in 1999. Defendant, pro se, filed a motion for new trial, alleging that his public defender failed to provide effective assistance of counsel. The trial court dismissed the motion without a hearing. On the original appeal, we remanded the case for an evidentiary hearing on the factual allegations of the motion for new trial. People v. Moore, No. 1-00-1595 (2000) (unpublished order under Supreme Court Rule 23).
Before the hearing on remand, defendant moved for the appointment of counsel not affiliated with the public defender's office. The trial court denied the motion. The trial court then heard evidence concerning the assistance the public defender provided defendant at trial. The court again denied the motion for new trial. On this appeal, defendant argues that we should reverse the decision and remand for a new hearing on the motion for new trial because his public defender for the hearing on remand operated under a conflict of interest.
We hold that the trial court did not abuse its discretion when it denied the motion for appointment of new counsel. We also find that defendant did not meet his burden of proving that an actual conflict of interest adversely affected the performance of his counsel at the hearing on the motion for new trial. Therefore, we affirm the dismissal of the motion for new trial, and we affirm the conviction and sentence.
At the trial Mickey Russell and Owen Brown testified that they saw defendant shoot Russell after 7 p.m. on April 30, 1999. Nicole Holland testified that she spent all that evening with defendant, from before 7 p.m. on April 30 until the following morning. The trial court found defendant guilty of attempted murder and sentenced him to 15 years in prison. In his motion for new trial defendant alleged that his trial attorney, James Murphy, did not effectively impeach prosecution witnesses, and he could have impeached them if he had asked questions defendant suggested.
Following our remand of the case to the trial court for a hearing on the motion for new trial, defendant, again pro se, supplemented the posttrial motion with passages he copied from the trial transcript. He alleged that the passages showed Murphy's incompetence. The court appointed another public defender, Luther Hicks, to assist defendant with the posttrial motion.
Defendant moved for appointment of new counsel, unaffiliated with the public defender's office, to assist with the posttrial motion. Defendant added some new allegations concerning Murphy's conduct. Most notably, defendant alleged that Murphy failed to interview alibi witnesses who could have exonerated defendant. But defendant made no allegations concerning the relation between Murphy and Hicks. Instead, defendant summarily stated that he "believe[d] that he [would] not be adequately represented by the office of the Public Defender or any of their attorneys," and that "further representation by the office of the Public Defender and their attorneys would not be in the best int[e]rest of Justic[e]."
Defendant presented his motion for appointment of new counsel pro se, after Hicks first introduced the motion to the court and with Hicks remaining in court while defendant presented the motion. The court asked defendant, "Why should I appoint somebody other than the Public Defender?" Defendant said only that Murphy had not tried defendant's case "the way it should be tried," and Hicks was "from the same office." The trial court found the stated reasons insufficient, so the court denied the motion. Hicks represented defendant for the evidentiary hearing on the motion for new trial.
Defendant testified that he told a public defender that he had five alibi witnesses. When Murphy replaced that attorney, shortly before trial, defendant told him, too, about the alibi witnesses. The attorneys never subpoenaed the witnesses. Murphy never showed defendant the police reports or Brown's written statement, and never discussed with defendant the police reports or Brown's statement. Murphy did not move to suppress the photo lineup from which Russell and Brown first identified defendant as the shooter.
"Now, tell the Judge what you believe *** Mr. Murphy did wrong during the course of this trial to make you believe that he was ineffective?"
Defendant pointed first to Murphy's failure to impeach the prosecution witnesses. Hicks elicited defendant's testimony concerning the specific impeachment available. When defendant finished discussing each point of putative impeachment, Hicks asked:
"Is there anything else that you want to tell the Judge, any other reason that you believe that the Public Defender ...