Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County, No. 08-CR-3237; the
Hon. Lawrence E. Flood and the Hon. Dennis J. Porter, Judges,
Michael J. Pelletier, Alan D. Goldberg, and Michael H.
Orenstein, all of State Appellate Defender's Office, of
Chicago, for appellant.
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, John E. Nowak, Janet C. Mahoney, and Brian A.
Levitsky, Assistant State's Attorneys, of counsel), for
JUSTICE MASON delivered the judgment of the court, with
opinion. Justices Lavin and Pucinski concurred in the
judgment and opinion.
1 For six years prior to 2009, Samuel E. Adam, Jr. (Junior)
had represented defendant Bryant Buckhanan on a number of
criminal matters. On January 11, 2008, the State filed a
complaint (later superseded by indictment) charging Buckhanan
with the August 19, 2007, murder of Omari Houston. On the
same date the complaint was filed, Junior filed an appearance
on Buckhanan's behalf.
2 More than a year and a half later, the State sought to
disqualify Junior from representing Buckhanan on the ground
that Junior's father, Samuel F. Adam, Sr. (Senior),
represented Gabrielle Gambrell, Buckhanan's girlfriend
and a witness the State planned to call at trial. The
conflict identified by the State in its motion was the
possibility that if Gambrell's trial testimony varied
from a statement she made to the police in September 2007,
the State would call Senior-who was present for the
statement-to impeach his client. Notwithstanding the fact
that (i) there were other witnesses to Gambrell's
statement, namely, a police detective and an assistant
State's Attorney, thus clearly rendering Senior's
testimony unnecessary and (ii) the State identified no
material variance between Gambrell's statement and her
grand jury testimony, the trial court ordered a hearing on
the State's motion.
3 After the hearing, during which Senior testified that he
did not recall Gambrell making one of the statements
attributed to her in the summary of her statement to the
police (so that he would, therefore, not impeach Gambrell on
that point), the State changed tack and argued that Junior
would be obligated to call his father as a witness in
Buckhanan's defense (presumably to attest to his lack of
recall of a portion of Gambrell's statement) or be deemed
ineffective for failing to do so. Without articulating any
actual or potential "conflict" inherent in this new
scenario, the State argued that the possibility of Junior
calling Senior as a witness created the appearance of
impropriety justifying Junior's disqualification.
4 The trial court agreed and granted the State's motion.
In the course of its ruling, the trial court specifically
found that there was no unethical exchange of confidential
information between Senior and Junior.
5 We reverse the disqualification of Buckhanan's counsel
and remand for a new trial. Nothing in the State's theory
of disqualification, either as originally articulated or as
revised after the hearing, warranted depriving Buckhanan of
his chosen counsel. And although the State's evidence was
more than sufficient to sustain Buckhanan's conviction,
the error in disqualifying his attorney, standing alone,
mandates reversal of the circuit court's judgment and
remand for a new trial.
7 Almost immediately after Houston's murder, police
focused on Buckhanan given that several witnesses implicated
him in the murder and identified him in a photo array.
Buckhanan's loaner car from an automobile dealership-also
identified by several witnesses as being present at the scene
of the murder-was found in a ditch the day after the murder
with papers identifying Buckhanan and the keys still in the
8 The police had several addresses where they searched for
Buckhanan after the murder, including an apartment in
Woodridge where he resided with Gambrell and their infant
child. After Gambrell felt the police were harassing her, she
eventually contacted Senior in September 2007, and he agreed
to represent her. Gambrell did not witness the shooting;
rather, the State intended to call her to establish
Buckhanan's flight the day after the murder.
Gambrell's anticipated testimony was based on a statement
she gave to police on September 12, 2007, and testimony she
gave before a grand jury on February 5, 2008, after
9 In her 2007 statement to police, which police later
summarized, Gambrell stated that on the morning after the
shooting, she received a phone call from Buckhanan informing
her that someone had run his car into a ditch on I-88.
Gambrell, who was not at home when she received
Buckhanan's call, returned to the apartment and, on the
way, drove down I-88 and determined that Buckhanan's car
was no longer in the ditch. She then met Buckhanan briefly at
their apartment. According to the summary, Buckhanan informed
Gambrell that he had called the Illinois State Police about
the loaner vehicle, and they told him to contact homicide
detectives. A short time later, Buckhanan left without
telling Gambrell where he was going. Gambrell met with and
spoke to Buckhanan after August 18, but he did not return to
their apartment before his arrest.
10 There is no indication in the record that Gambrell was
shown the summary of her statement or asked to sign or
initial it. The summary concludes with the statement that
after the interview was completed, the assistant State's
Attorney who was present decided not to call Gambrell before
the grand jury.
11 Buckhanan was apprehended by police in connection with
Houston's murder on January 9, 2008. As noted, Junior
filed his appearance for Buckhanan on January 11, 2008.
12 The State did ultimately summon Gambrell to testify before
the grand jury and her February 2008 testimony was
substantially similar to her statement to the police, except
that when she was asked whether Buckhanan told her "he
had received a call from the State Police, " Gambrell
testified that she did not recall him saying that. Further,
when asked if Buckhanan told her the Chicago police were
looking for him, Gambrell responded, "I don't
remember if he told me right then. I don't remember. I
mean I knew later, but I don't remember if he told me at
that point." In her grand jury testimony, Gambrell was
not asked whether Buckhanan told her (1) he had called the
Illinois State Police and (2) the Illinois State Police told
him to contact homicide detectives.
13 The State hoped that Gambrell would testify consistently
with her 2007 police statement. In particular, they wanted
her to say that Buckhanan had been told to contact homicide
detectives, to show that Buckhanan knew the police were
looking for him in regards to a murder investigation.
14 The State's motion to disqualify was filed on
September 30, 2009. At the time the motion was filed, trial
was scheduled to commence three weeks later on October 19,
2009. In its motion, the State represented that in the event
Gambrell denied that Buckhanan told her the Illinois State
Police advised him to contact homicide detectives, the State
would "possibly" call Senior to impeach her-thus