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People v. Buckhanan

Court of Appeals of Illinois, First District, Second Division

September 27, 2016

BRYANT BUCKHANAN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois. No. 08 CR 3237Honorable Dennis J. Porter, Judge Presiding.

          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 On January 11, 2008, the State filed a complaint (later superseded by indictment) charging Buckhanan with the August 19, 2007 murder of Omari Houston.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.

         ¶ 6 BACKGROUND

         ¶ 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 ignition.

         ¶ 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 Buckhanan's arrest.

         ¶ 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 consistent 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 opening the door for the jury to find out that defense counsel's father represented a witness for the State.

         ¶ 15 The State argued that Junior should be disqualified for two reasons: first, it asserted that, through his father, Junior had access to confidential information about Gambrell that would give the defense an unfair advantage; second, it argued that if the jury learned Junior's father represented a State witness, it would create an appearance of impropriety. The State admitted that it had been aware that Junior was representing Buckhanan since August 19, 2007 (the day of the murder), when Junior called Area 4 and informed a detective that he was Buckhanan's attorney. The ...

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