People v. Echols

• Decision Date: 04 December 1978
• Docket Number: No. 49766,49766
• Citation: People v. Echols, 385 N.E.2d 644, 74 Ill.2d 319, 24 Ill.Dec. 503 (Ill. 1978)
• Parties: , 24 Ill.Dec. 503 The PEOPLE of the State of Illinois, Appellee, v. Kenneth C. ECHOLS et al. Appeal of Johnny R. WILSON.
• Court: Illinois Supreme Court

Page 644

385 N.E.2d 644

74 Ill.2d 319, 24 Ill.Dec. 503

The PEOPLE of the State of Illinois, Appellee, v. Kenneth C. ECHOLS et al. Appeal of Johnny R. WILSON.

No. 49766.

Supreme Court of Illinois.

Dec. 4, 1978.

Richard J. Wilson, Deputy State App. Defender, Springfield, and Mary Robinson, Deputy State App. Defender, and Richard E. Cunningham, Asst. State App. Defender, Elgin, for appellant.

William J. Scott, Atty. Gen., Chicago (Donald B. Mackay, Melbourne A. Noel, Jr., and Fred Montgomery, Asst. Attys. Gen., of counsel), for the People.

CLARK, Justice:

The appellant, Johnny Wilson, was convicted of one count of burglary (Ill.Rev.Stat.1973, ch. 38, par. 19-1) in the circuit court of Macon County. A majority of the Appellate Court, Fourth District, affirmed (48 Ill.App.3d 885, 6 Ill.Dec. 692, 363 N.E.2d 374), holding, Inter alia, that appellant had not been denied the effective assistance of counsel as a result of his having been represented at trial by the same attorney who represented appellant's two co-defendants in the joint trial of the three. We granted appellant's petition for leave to appeal on that issue, and we now reverse.

On June 11, 1974, a grand jury indicted appellant, along with Kenneth Echols, William Echols, Thomas Ferguson, and Gregory Van Cook, for burglary and attempted burglary in connection with a June 5, 1974, incident at Valley's Tavern in Decatur. (The State subsequently nol-prossed the charge of attempted burglary.) At a preliminary hearing held on June 21, 1974, the court appointed the public defender to represent all of the defendants except appellant, who evidently indicated that he intended to retain counsel. The court did, however, appoint the public defender to represent appellant for purposes of the preliminary hearing. On July 5, 1974, at a subsequent hearing, the court sought to determine who was representing the appellant. From the ensuing colloquy, it appears that the attorney whom appellant had intended to "retain" was named Birk, an assistant public defender, who had represented appellant on a prior misdemeanor charge:

"The Court: Once again, earlier you said you would hire an attorney, you could and plan to.

Appellant: No, I was trying on planning to get Mr. Birk, you know, to see if he could take my case.

The Court: By hiring him?

Appellant: No, by Public Defender.

The Court: You don't appoint You don't select your public defender, especially when you posted bond and you posted, what, $300.00?

Appellant: Yes.

The Court: We will see you will have to prepare an affidavit and then we'll see if you qualify.

Appellant: Right. " (Emphasis added.)

Sometime after the foregoing hearing, appellant filed an affidavit of indigency, and requested appointment of counsel. The public defender was appointed. Approximately one month later, the public defender moved to sever the trials of Ferguson and Van Cook from that of appellant and the Echols brothers, on the grounds that Ferguson and Van Cook had made statements exculpating themselves at the expense of the appellant and the Echols brothers, and had made admissions prejudicial to appellant and the Echols brothers. The State did not object, and the court granted the motion. Two days later, the public defender also obtained leave to withdraw as counsel for Ferguson and Van Cook, for whom the court appointed separate counsel.

The first trial of this cause ended in a mistrial (on August 26, 1974) after the jury was impaneled but before opening statements. The second trial also ended in a mistrial (on September 24, 1974) as a result of a State witness' reference to the defendants' having known each other in jail. The third trial resulted in the conviction at issue here.

At that trial, defendant Ferguson, testifying under a grant of immunity, gave the following account of the events of the early morning of June 5, 1974:

At about 5 a. m., appellant, who was driving, and the four others, were headed toward Decatur on Woodford Street, when they passed Valley's Tavern. About this time someone in the car evidently said something which caused appellant to turn the car around and head back toward the tavern shortly after they had passed it. Appellant drove around to the back door of the tavern, where he and the Echols brothers got out of the car and attempted to open the back door. Ferguson drove himself and Van Cook away from the scene to the nearest intersection, while the others walked around to a drive-up window on the other side of the building. Ferguson drove the car back to the tavern about a minute and a half later and picked up appellant and the Echols brothers. None of the three appeared to be carrying anything at the time and none opened the door to the car's trunk before getting in. Ferguson then drove back toward Decatur and turned down a side street, turned around, came back out onto the street on which he had been driving and drove to Longview, where the car was stopped by Decatur police. When the police arrived Ferguson was sitting "up under the wheel." Van Cook was on the passenger side. The Echols brothers "were in the back," and Johnny Wilson was "standing by the back door."

Julian and Galen Beckler, who worked as custodians at the tavern, also testified to the events of about 5 a. m. on June 5, 1974. Julian testified as follows:

As he pulled into the parking lot at the tavern, he saw a tall, skinny Negro male with short hair and sideburns, wearing a red shirt and light-colored pants, walking away from the drive-up window on the west side of the tavern. He then observed two more individuals standing at the drive-up window, one wearing a floppy hat with silver studs around the brim and another wearing a green army shirt. Julian identified People's exhibit No. 1 as the hat he had seen, which then had holes where the silver studs allegedly had been. Julian also observed two men in the kitchen of the tavern. As he left to call the police, he observed a "two-toned green Buick or Oldsmobile, about a '56," parked down the block. Two or three of the people he had observed were then running toward the car.

After calling the police, Julian headed back toward the tavern, at which time he observed "the guy with the hat" driving the car that had been parked, "the guy with the red shirt" sitting on the passenger side of the front seat, and about five other people in the car. Julian, however, could not identity any other individuals he had seen. He did, however, accurately remember the license plate number of the car.

Galen Beckler, who had been in the car with Julian, also testified. Galen only observed three individuals at the tavern; one standing outside the package window and wearing white pants, and two inside the building, of whom one had on a green army jacket and another a black hat with studs. Galen also identified the now-studless hat.

Another witness, Ronald Atkins, saw the car (with at least four people in it) during the maneuvers described by Ferguson. Gary Doolin also saw the car at about that time, but saw five people in it.

Roy Pritchett, the police officer who stopped the vehicle, testified that appellant was behind the wheel, wearing "a blue windbreaker, gold shirt and wine-colored checked pants"; Kenneth Echols was wearing kind of "an off-white pair of pants and a red pullover shirt"; and William Echols "also had on a pair of white pants, tan jacket and a large black floppy hat" which Pritchett identified as People's exhibit No. 1.

Officer Ronald Wetherell, Pritchett's partner, also testified that, when arrested, Kenneth Echols was wearing a red shirt and appellant was wearing checkered pants. Pritchett also rendered an in-court identification of appellant.

The arresting officers were unable to open the trunk of the car with any of the keys given them by appellant, and had to obtain access to the trunk by removing the back seat. The owner of the tavern identified a tape player found in the trunk of the car as one belonging to her.

In addition, another police officer, Clifford Kretzinger, testified that he removed several pieces of broken plexiglass, which had covered the package liquor drive-up window of the tavern. One of those pieces contained a fingerprint, which was subsequently lifted and preserved for comparison to the defendants' fingerprints. Additional testimony later established that the fingerprint found on the piece of broken plexiglass matched that on People's exhibit No. 11, a police fingerprint card bearing the name Kenneth Echols.

Officer Lewis Madia testified that he assisted Kenneth Echols in placing his fingerprint on People's exhibit No. 11. However, when asked if he could identify the individual whose print was on People's exhibit No. 11, Madia pointed not to Kenneth Echols, but to the appellant, Johnny Ray Wilson, and the public defender asked that the record so indicate.

Without the jury present, the State sought leave to obtain appellant's and Kenneth Echol's fingerprints, stating:

"Your Honor, the testimony of the witness, Lewis Madia, who took the fingerprints on June the 5th, and his identification in court of one of the defendants leaves the question leaves the area of the fingerprints somewhat questionable in the minds of the jury as to who is the man who he fingerprinted that morning. The People's position is that we want to clarify this for the jury right now."

However, the public defender objected that to do so would violate appellant's and Kenneth Echols' privilege against self-incrimination. On advice of the public defender, both appellant and Kenneth Echols reiterated the public defender's objection when questioned by the court.

Subsequently, the public defender unsuccessfully objected to the admission of the testimony identifying exhibit No. 11 as containing a print identical to the one found on the piece of broken plexiglass. However, in closing arguments, he chose to point to the ambiguity regarding the fingerprints as limiting its probative value...