The opinion of the court was delivered by: Justice Garman
Docket No. 93806-Agenda 3-September 2003.
After a jury trial, the defendant, Jesus Fidel Morales, was convicted of first degree murder, solicitation to commit murder for hire, and conspiracy to commit murder in connection with the shooting death of Kedric Bell in Chicago on January 16, 1995. The appellate court reversed the conviction and remanded for a new trial on the ground that defense counsel labored under a per se conflict of interest that defendant did not waive. 329 Ill. App. 3d 97. We granted the State's petition for leave to appeal pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315). For reasons that follow, we now reverse the judgment of the appellate court.
During 1994 defendant distributed large quantities of cocaine in Chicago and other cities in the Midwest. Jorge Hernandez was defendant's superior in the drug distribution organization. He obtained the cocaine from Colombian sources and supplied it to defendant. Hernandez was also defendant's "brother-in-law" because Hernandez's sister, Olga Medina, was defendant's girlfriend or "common law wife."
Early in 1995, defendant was unable to pay approximately $200,000 he owed to Hernandez for drugs previously supplied. Hernandez threatened defendant and sent a courier to Chicago to collect. Defendant arranged for an extension of time and the courier left. Meanwhile, defendant asked an associate, Alexis Paredero, to look into hiring someone to kill Hernandez's next courier. Defendant planned to make it appear that he had paid the debt but that the courier had later been robbed and killed by persons unknown. Paredero recruited a gang member, Malcolm "Prince" Ortiz, who agreed to commit the murder for $10,000. When Kedric Bell arrived in Chicago to collect on behalf of Hernandez, defendant told Paredero that it would be necessary to go ahead with the murder.
On January 15, 1995, Paredero set up a meeting between defendant and Ortiz, during which they agreed on the site of the killing, the weapon, payment of the fee, and other details. Later that evening, Paredero picked up Bell, who had been told that he would now be paid. Instead, Paredero delivered Bell to the murder site, where Ortiz and an associate, posing as police officers, pretended to arrest Bell and Paredero. Ortiz frisked Bell, took his pager, and then shot him to death.
Hernandez did not testify at trial. Paredero testified at length about how defendant conceived, helped plan, and paid for the murder. The State also introduced into evidence a 13-page written statement signed by defendant that corroborated Paredero's testimony. Other witnesses testified concerning defendant's drug dealing, Hernandez's role as supplier, Kedric Bell's reason for coming to Chicago, and statements made by defendant before and after the murder. At the sentencing hearing, the State introduced a letter written by Hernandez in September of 1995 to a purported member of a Colombian drug cartel stating that defendant and Olga Medina would take over Hernandez's drug operation while Hernandez was in prison and that the Colombians should deal with them just as they had dealt with Hernandez.
The question before us arises because defendant's retained counsel, Michael Blacker of Miami, represented Hernandez in Florida in connection with federal drug charges at same time he represented defendant at trial in this case. In open court during a pretrial hearing on defendant's motion to suppress, in the presence of defendant and Blacker, Assistant State's Attorney David Kelley apprised the court of Blacker's representation of Hernandez, of the fact that Hernandez was a potential witness for the State, and of the potential conflict of interest that resulted from those facts. At Kelley's request, the court asked defendant whether he understood what the assistant State's Attorney had just said and whether, in light of the possible conflict, he wished to continue with Blacker as his counsel. Defendant answered the court's questions affirmatively. The court accepted defendant's purported waiver of the conflict without further inquiry. Blacker remained silent throughout the colloquy.
No statement by Hernandez was introduced into evidence against defendant at trial. At the sentencing phase the State introduced parts of a letter that Hernandez wrote from jail to a purported member of a Colombian drug cartel, in which he stated that defendant and Olga Medina would take over Hernandez's drug business while Hernandez was in prison. Hernandez asked that the Colombians deal with defendant just as they had dealt with him. Attorney Blacker attempted to discredit the letter by introducing evidence that Hernandez was mentally unstable.
The posttrial motions that Blacker filed on behalf of defendant did not mention conflict of interest or ineffective assistance of counsel. Defendant claimed on appeal that Blacker's contemporaneous representation of Hernandez created a conflict of interest that worked to deprive him of the effective assistance of counsel in violation of the sixth amendment (U.S. Const., amend. VI). The appellate court reversed defendant's conviction on that basis. 329 Ill. App. 3d 97.
We review de novo the legal question whether the undisputed facts of record present a per se conflict. See People v. Miller, 199 Ill. 2d 541, 545 (2002). A criminal defendant's sixth amendment right to effective assistance of counsel includes the right to conflict-free representation. People v. Washington, 101 Ill. 2d 104, 110 (1984). In People v. Spreitzer, 123 Ill. 2d 1, 14-19 (1988), we clarified the framework for deciding whether defense counsel's conflict of interest violates the sixth amendment. Under Spreitzer, we must first decide whether there was a per se conflict of interest. If there was a per se conflict, "there is no need to show that the attorney's actual performance was in any way affected by the existence of the conflict." Spreitzer, 123 Ill. 2d at 15. That is, a ...