Appeal from Circuit Court of Macon County No. 09CF1471 Honorable Timothy J. Steadman, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Carla Bender 4th District Appellate Court, IL
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Knecht concurred in the judgment and opinion.
¶ 1 A jury found defendant, Elliott T. Murphy, guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) and attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a) (West 2008)), for which the trial court sentenced him to consecutive prison terms of 55 years and 25 years. Defendant appeals. Because trial counsel labored under a per se conflict of interest, we reverse defendant's convictions and remand this case for a new trial.
¶ 4 In September 2009, the State charged defendant and several other persons with first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)), attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a) (West 2008)), aggravated battery (720 ILCS 5/12-4(a) (West 2008)), robbery (720 ILCS 5/18-1 (West 2008)), and mob action (720 ILCS 5/25-1(a)(1) (West 2008)). The charges arose out of two incidents that took place in Decatur on August 24, 2009. In the first incident, a group of teenage boys battered and fatally injured Jerry Newingham near 540 West Sawyer Street. The second incident occurred shortly thereafter, in which they battered and severely injured Kevin Wilson in nearby Garfield Park. Allegedly, defendant was one of the attackers of Newingham and Wilson. Because defendant was 16 at the time of the attacks and hence was over the statutory age of 15, the State prosecuted him in adult criminal court pursuant to section 5-130(1)(a) of the Juvenile Court Act of 1987 (705 ILCS 405/5-130(1)(a) (West 2008)).
¶ 5 B. Shawn Stanley's Testimony in the Jury Trial
¶ 6 In defendant's trial, which took place in August 2011, the State called Shawn Stanley. During direct examination, Stanley testified he had no recollection seeing Wilson being beaten on August 24, 2009, or of giving a statement to Detective Barry Hitchens regarding the beating.
¶ 7 Then, without objection, the prosecutor played for the jury People's exhibit No. 29, a videotape of the statement Stanley had given to Hitchens regarding the beating of Wilson. The State presented this statement as substantive evidence pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2008)). In the statement, Stanley told Hitchens that on August 24, 2009, he was sitting in a pavilion in Garfield Park with his girlfriend and that a man, who appeared to be drunk and asleep, was sitting at another table in the pavilion. A group of about 12 teenage boys came to the park and surrounded the man. The man stood up and tried to leave, but one of the boys punched him in the face, knocking him down. Then another boy stomped on the man's head. Several other boys joined in, stomping on his stomach, ribs, and face. Then the attackers ran out of the park.
¶ 8 In some photographs that Hitchens showed him, Stanley identified five of the attackers, including defendant. Stanley told Hitchens that defendant had been "the main one" stomping on the man; defendant had stomped on the man's face at least six or seven times.
¶ 9 After the prosecutor played for the jury the video recording of Stanley's statement to Hitchens, the assistant public defender, Howard Baker, cross-examined Stanley on statements he purportedly made to a Decatur park district ranger, Del Taylor, on the day of Wilson's beating. In his cross-examination, Baker brought out inconsistencies between what Stanley told Taylor and what Stanley told Hitchens weeks later. Bringing out the inconsistencies between these statements was all Baker did in his cross-examination of Stanley.
¶ 10 C. The Verdicts and the Sentences
¶ 11 The jury found defendant guilty of murdering Newingham and of attempting to murder Wilson.
¶ 12 In December 2011, the trial court sentenced defendant to consecutive prison terms of 55 years and 25 years.
¶ 13 D. Appellate Counsel's Discovery That Baker Also Represented Stanley for a Time During the Pretrial Phase of Defendant's Case
¶ 14 The office of the State Appellate Defender (OSAD) was appointed to represent defendant in this appeal, and while working on the appeal, OSAD learned that, during the pretrial phase of defendant's case, Baker also represented Stanley in a separate criminal case. OSAD provides the following chronology.
¶ 15 On September 23, 2009, the trial court appointed Baker to represent defendant.
¶ 16 On October 1, 2009, Stanley's name appeared in a discovery disclosure by the State, a disclosure filed with the trial court and served on Baker.
¶ 17 On November 23, 2009, in People v. Stanley, Macon County case No. 2009-CF-1816, the State charged Stanley with first degree murder, armed robbery, armed violence, aggravated battery with a firearm, and unlawful possession of cannabis with the intent to deliver it.
¶ 18 On December 2, 2009, Baker entered his appearance on Stanley's behalf in Macon County case No. 2009-CF-1816.
¶ 19 On April 1, 2010, Stanley's name appeared again in a discovery disclosure by the State in the present case, a disclosure filed with the trial court and served on Baker.
¶ 20 On April 15, 2010, Baker represented Stanley in a guilty-plea hearing in Macon County case No. 2009-CF-1816 (An earlier docket entry, dated January 27, 2010, says: "Cause assigned on the trial call of Judge White."). Stanley entered negotiated pleas of guilty to aggravated battery with a firearm and unlawful possession of cannabis with the intent to deliver it. The charges of murder, armed robbery, and armed violence were dismissed. The trial court sentenced Stanley to concurrent prison terms of six years and four years.
¶ 21 On August 12, 2011, the State called Stanley as a prosecution witness in defendant's trial, with Judge Steadman presiding. Baker still was representing defendant, and he cross-examined Stanley.
¶ 23 A. Our Standard of Review
¶ 24 All the facts germane to this appeal appear to be undisputed. "When the record shows that the facts are undisputed, the issue of whether a per se conflict exists is a legal question that this court ...