Appeal from the Circuit Court of Cook County. No. 96 CR 32393 Honorable Maura Slattery Boyle, Judge Presiding.
The opinion of the court was delivered by: Justice Rochford
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Karnezis concurred in the judgment and opinion.
¶ 1 A jury convicted petitioner, Edward Graham, of three counts of first-degree murder. The trial court imposed the death penalty, which later was commuted to a term of natural life in prison without the possibility of parole. Petitioner now appeals the second-stage dismissal of his amended post-conviction petition. Petitioner contends the post-conviction court erred in dismissing his amended post-conviction petition because he made a substantial showing: (1) he was denied his sixth amendment right to counsel of choice at trial; and (2) his trial counsel provided ineffective assistance. We affirm.
¶ 2 On the first day of trial, June 2, 1998, prior to jury selection, Judge Mary Maxwell Thomas (hereinafter referred to as the trial court or the trial judge) engaged in a colloquy with the assistant State's Attorney, defense counsel, and petitioner regarding petitioner's choice of counsel. As the colloquy is instrumental to our holding that the trial court did not deprive petitioner of his counsel of choice, we quote the colloquy in detail:
"MR. HOWARD [defense attorney]: "Early on in this case, when it became publicized that there was an ongoing fight between the ARDC and me relative to some matters that happened years ago, a complaint pending with the ARDC we've been fighting about, I stood before this court, the matter was mentioned and we had [petitioner] in front of the court early on. We talked about it in front of the court. I explained to the court that while there was an ongoing fight between the ARDC and me, it has not disturbed or caused me any problems with my representing clients.
I went on to say further I have been practicing law for 37 years and if I stopped today it would be of no concern to me.
But the State for whatever reason has seen fit to bring that issue up again and maybe it's because of the *** importance of this case and they wanted it aired again. I have mentioned it again to my client and reminded him that I do have that ongoing fight and I assured this court that my licenses are intact and my conscience is intact and I have no problem with representing anybody and certainly being able to represent [petitioner]. But they wanted it spread of record again and so I'm doing that.
THE COURT: Anything else from the State to say on that issue?
MR. OSTROWSKI [Assistant State's Attorney]: Your Honor, *** we do think it should be spread of record because in any proceeding and trial such as this, as you know, the defendant's rights are at issue. We want him to be fully aware that the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois has initiated a disciplinary proceeding against Mr. Howard. It's currently pending and it did charge Mr. Howard with professional misconduct including allegations that he engaged in the unauthorized practice of law during the period of a suspension, so we, your Honor, do think that it's important. We do have the utmost respect for Mr. Howard, we do agree with the fact his license is currently intact, but we do believe these are things that the defendant should be aware of before he proceeds further with trial.
THE COURT: [Petitioner], you're aware of this, is that right?
THE COURT: Do you have any problems at all going forward with Mr. Howard on that account at this time?
PETITIONER: Well, no embarrassment to Mr. Howard, but this case is involving my life, and *** I'm questioning his ways of, you know, coming to me asking me certain things about the case. And I have been locked up 18 months. I probably seen him three times since I have been here and for the last six to eight months, you know. I really had no time to talk to him about the case and now we standing in front of the judge ready to go forward with the trial and you know, I spoke to him yesterday and I just briefly spoke to him about this pending thing, but it's--well, in jail, I get a little clippings about it and I questioned him once and he said no, you know, that's really nothing. But then I sit back and I say well, you know, this is my life that is on the line. I know he goes home and you know, but I'm locked up and I don't have no--I have somewhat a doubt about it, but I'm so far into the case.
THE COURT: Wait. *** Is your doubt as to whether his license is intact or your doubt concerning his professional capabilities?
PETITIONER: His professional capability.
MR. HOWARD: It's a serious matter. I told [petitioner], and I thought we had this straight in the back, we did go through all of this. *** And I don't want any client, [petitioner] or any other man, any other person to have me representing him if there is one iota of question about my ability to do so, and because [petitioner's] life is on the line. He ought to have a lawyer that he has absolutely no reservations about and if he has the slightest reservations about the manner in which I'm handling his case *** [then] we got a problem with it.
THE COURT: Let me say this. Certainly I have every confidence in all of the lawyers that are involved in this case. The utmost standards and highly qualified, skilled attorneys in this case. Mr. Howard's reputation I maybe even say is legendary, I mean about the country. I don't have any reservations, but it's not an issue about whether I have any reservation, the issue is whether or not you have any reservations. Let's go off the record for one minute.
THE COURT: All right. We had a discussion off the record where I indicated to [petitioner], part of it on the record, I believe, about my confidence in the lawyers who are involved in this trial. But I said to him my feelings aren't important, what is important are his feelings and he said some things that I think that we should place of record because I specifically did ask him off the record whether he had a problem with Mr. Howard's, the ARDC matter, but more concerned about Mr. Howard's ability to represent him, and your answer now after having discussed this further off the record, [petitioner], is what, how do you feel about Mr. Howard and his ability to represent you?
PETITIONER: I feel he's very capable of representing me.
THE COURT: Do you have any doubts at all about his ability to go forward and represent you in this case at this point?
THE COURT: And are you ready to go forward at this time? PETITIONER: Yes.
THE COURT: The bottom line, [petitioner], are you satisfied that Mr. Howard is going to represent you to the best of his ability and he's capable of doing that and are ...