People v. Barren, 74--205
| Decision Date | 06 October 1975 |
| Docket Number | No. 74--205,74--205 |
| Citation | 32 Ill.App.3d 78,335 N.E.2d 779 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Milton BARREN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James Geis, State App. Defender Agency, Ottawa, for defendant-appellant.
Edward P. Drolet, State's Atty., Kankakee County, Kankakee; F. Stewart Merdian, I.S.A.A., Appellate Assistance Service, Ottawa, for plaintiff-appellee (Michael B. Weinstein, Ottawa, of counsel).
Defendant Milton Barren appeals to this Court from a conviction of burglary in the Kankakee County Circuit Court. He was sentenced to a term of 5 to 15 years in prison as a result of such conviction.
It appears from the record that defendant was indicted together with J. C. Teague for burglary and on January 15, 1974, J. C. Teague pleaded guilty to the offense as charged. Defendant, however, pleaded not guilty and waived a jury trial and consented to be tried at a bench trial. As a result of such trial he was found guilty as charged. He was sentenced to a term of 5 to 15 years, which term was to run concurrently with the sentence of 3 to 12 years previously entered against defendant in another case which was reviewed on appeal in this Court. People v. Barren (1974), 23 Ill.App.3d 79, 318 N.E.2d 206.
On appeal in the cause now before us, defendant Barren claims that he was denied his right to effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution. His sole reason for this assertion was that he was represented by an assistant Public Defender after the Public Defender withdrew from the case because of an asserted conflict of interest.
From the record it is noted that at the time J. C. Teague pleaded guilty, the Public Defender who was attorney for both defendants, moved to withdraw as counsel for defendant Barren. The following discussion then occurred:
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It was also noted of record that Attorney Yurgine was a past-time assistant Public Defender and maintained a law office and practiced separately from the Publc Defender Mr. Eakin. Mr. Yurgine was thus appointed to represent defendant and did so adequately throughout the trial. Defendant now argues on appeal that the conflict of interest which persuaded the Public Defender to withdraw as counsel was not resolved by the appointment of the assistant Public Defender to represent him, and further, that defendant did not waive the asserted conflict by accepting Attorney Yurgine as his counsel since the record does not reflect (and hence he could not know) exactly what the conflict was. The only conceivable conflict of interest shown by the record is the fact that the Public Defender had represented both defendants, and that one defendant, Teague, had pleaded guilty while the other defendant, Barren, decided to go to trial. The only adverse effect as to Barren from such asserted conflict to interest which could thus arise would necessarily be the result of a circumstance in which Teague might testify as against defendant Barren, and defense counsel might find it difficult to cross-examine him. This problem, however, did not arise since Teague was not called as a witness and did not testify in the case in any respect.
The issue which comes before us on the question of the Sixth Amendment right to counsel is premised on the right to effective counsel which entitles a criminal defendant to the undivided loyalty of his attorney (Glasser v. U.S. (1941), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; People v. Stoval (1968), 40 Ill.2d 109, 111, 239 N.E.2d 441). This principle is respected by the courts in being watchful for situations where counsel may have a conflict of interest which might prevent such counsel from fully devoting his efforts to representation of his client.
An illustration of this situation could arise where a trial court would appoint the Public Defender as counsel for an indigent defendant in a post-conviction proceeding in which one of defendant's contentions is that the Public Defender's office was incompetent in its representation of defendant at trial. (People v. Brittain (1972), 52 Ill.2d 91, 284 N.E.2d 632; People v. Sigafus (1968), 39 Ill.2d 68, 233 N.E.2d 386; People v. Bain (1974), 24 Ill.App.3d 282, 320 N.E.2d 426). This rule would, of course, apply where the two individual attorneys, one at the trial stage and the other at the post-conviction hearing, are both members of the Public Defender's office. (People v. Smith (1967), 37 Ill.2d 622, 230 N.E.2d 169). In the Smith and Bain cases the reasons for application of this rule are clearly shown, on the basis that it would be difficult for a representative of the Public Defender's office to argue zealously in a post-conviction proceeding that his office was incompetent during the pre-trial and trial stages leading to defendant's conviction.
Another situation involving a conflict of interest exists where one attorney represents to or more co-defendants whose defenses are antagonistic to each other, and in such case, they are entitled to separate counsel. (People v. Johnson (1970), 46 Ill.2d 266, 265 N.E.2d 869; People v. Ware (1968), 39 Ill.2d 66, 68, 233 N.E.2d 421). It is noted, however, that where the defenses do not appear inconsistent and the alleged conflict is not supported by the evidence and is speculative in nature, there is no error in the failure to appoint separate counsel, at least where none was requested. (People v. Somerville (1969), 42 Ill.2d 1, 245 N.E.2d 461; People v. McCasle (1966), 35 Ill.2d 552, 221 N.E.2d 227). It appears clearly from the record in the case before us that the conflict of interest alleged by the Public Defender Eakin stems solely from the fact that the co-defendant Teague had determined to plead guilty to the burglary. There is no indication in the record that Teague's plea of guilty was in any manner...
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