People v. Enoch

• Citation: 146 Ill.2d 44,165 Ill.Dec. 719,585 N.E.2d 115
• Decision Date: 19 December 1991
• Docket Number: No. 70254,70254
• Parties: , 165 Ill.Dec. 719 The PEOPLE of the State of Illinois, Appellee, v. Willie E. ENOCH, Appellant.
• Court: Supreme Court of Illinois

Page 115

585 N.E.2d 115

146 Ill.2d 44, 165 Ill.Dec. 719

The PEOPLE of the State of Illinois, Appellee, v. Willie E. ENOCH, Appellant.

No. 70254.

Supreme Court of Illinois.

Dec. 19, 1991.

Rehearing Denied Feb. 3, 1992.

Sheri J. Engelken, Leslie M. Smith, Sara R. Slaughter and David P. Berten, Kirkland & Ellis, Chicago, for appellant.

Roland W. Burris, Atty. Gen., Springfield (Rosalyn Kaplan, Soliciter Gen., and Terence M. Madsen and Nathan P. Maddox, Asst. Attys. Gen., of counsel), for the People.

Justice CLARK delivered the opinion of the court:

Following a jury trial in the circuit court of Peoria County, defendant, Willie E. Enoch, was convicted of murder, aggravated kidnapping and attempted rape. Defendant waived a jury at the death penalty hearing, and the circuit judge found defendant eligible for the death penalty based on two felony murder convictions: murder in the course of aggravated kidnapping and murder in the course of attempted rape (Ill.Rev.Stat.1983, ch. 38, par. 9-1(b)(6)). Subsequently, the judge found no mitigating factors sufficient to preclude the imposition of the death penalty, and sentenced defendant to death. On direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); 87 Ill.2d R. 603), defendant's convictions and death sentence were affirmed. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.) The United States Supreme Court denied defendant's petition for writ of certiorari. Enoch v. Illinois (1988), 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263.

Thereafter, on April 13, 1989, defendant filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1983, ch. 38, par. 122-1 et seq.). The circuit court appointed the public defender of Peoria County to represent defendant on his petition for post-conviction relief. On January 22, 1990, following numerous delays in the filing of an amended petition for post-conviction relief, the State moved to dismiss defendant's pro se petition. On January 24, 1990, defendant moved to substitute the law firm of Kirkland & Ellis as counsel for defendant. Thereafter, on March 19, 1990, defendant filed this amended petition for post-conviction relief. This amended petition did not adopt, re-allege or in any way refer to the allegations set forth in defendant's original pro se motion.

In his amended petition for post-conviction relief, defendant raised three issues. First, defendant claimed that he was denied his right to effective assistance of counsel because his trial attorney, Mark Rose, had a per se conflict of interest, and because his actual performance fell below the constitutional standard necessary to constitute effective assistance of counsel. Second, defendant argued that his due process rights were violated when this court retroactively applied a "new waiver rule" in his case. Third, defendant argued that the Illinois death penalty statute was unconstitutional.

Subsequently, the State filed a motion to dismiss defendant's pro se and amended petition for post-conviction relief. On April 19, 1990, the circuit court, without having held an evidentiary hearing on this matter, granted the State's motion to dismiss the pro se petition and the amended petition. On appeal directly to this court (134 Ill.2d R. 651), only those claims in defendant's amended petition for post-conviction relief are before us.

The facts in this case are adequately set forth in this court's opinion on defendant's direct appeal (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124), and will be repeated here only when necessary.

Initially we note that an action for post-conviction relief represents a collateral attack on a prior judgment; it is not an appeal from an underlying conviction and sentence. (People v. Ruiz (1989), 132 Ill.2d 1, 9, 138 Ill.Dec. 201, 547 N.E.2d 170; People v. Free (1988), 122 Ill.2d 367, 377, 119 Ill.Dec. 325, 522 N.E.2d 1184; People v. James (1986), 111 Ill.2d 283, 290, 95 Ill.Dec. 486, 489 N.E.2d 1350.) To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of Federal or State constitutional rights in the proceedings that produced the judgment under attack. (Ill.Rev.Stat.1985, ch. 38, par. 122-1.) Rulings on issues that were previously raised at trial and on direct appeal are res judicata, and issues that could have been raised in the original proceedings, but were not, will be deemed waived. Ruiz, 132 Ill.2d at 9, 138 Ill.Dec. 201, 547 N.E.2d 170; People v. Silagy (1987), 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830.

Defendant argues that he was denied his sixth amendment right to effective assistance of counsel because his trial counsel, Mark Rose, had previously represented one of the State's main witnesses, Derek Proctor. On November 14, 1983, immediately prior to jury selection, the trial judge stated on the record that it had come to the court's attention that Rose had previously represented Proctor on a felony matter in 1979. The following colloquy ensued between the trial judge and Rose:

"Q. [Trial Judge]: Mr. Rose, do you feel that the existence of your prior relationship with this proposed witness would cause you any difficulty insofar as your representation of the defendant, Willie Earl Enoch?

A. [Mark Rose]: I don't believe so your honor.

Q. Has there been an on-going relationship of attorney-client between you and Mr. Proctor?

A. Only that I believe Mr. Proctor has been in the office, and I believe it is since the date of this, although I can't be sure, concerning possibly hiring me to represent him in matters. But so far as I recall, never represented him privately, and, I believe, this may be the only occasion that, in fact, I represented him.

Q. There is no attorney-client relationship, is that right?

A. That's correct.

Q. To the best of your recollection--I don't mean to put words in your mouth--but my understanding is, to the best of your recollection, your attorney client relationship with Mr. Proctor ended with the conclusion of this 1979 case, is that right?

A. I believe so. I don't recall representing--in fact, to be truthful, I didn't remember representing him in that case until I procured the Certified Copy of Conviction this morning.

Q. Do you have any specific recollection of your representation of Mr. Proctor?

A. Now I do.

Q. Are they recollection, or do you just know it from the fact?

A. No, I recall the incident, and I recall the codefendant in the case.

Q. Just to be clear, that relationship ended in 1979, is that right?

* * * * * *

A. Yes.

Q. You don't feel your effectiveness is impaired in any way, is that right?

A. No." (Emphasis added.)

Following this exchange, the trial judge stated "that this state of affairs * * * does not constitute a conflict of interest nor, in fact, does any conflict of interest exist based on the representation by Mr. Rose, which are amply supported by the record." We agree.

The right to effective assistance of counsel under the sixth amendment to the Constitution of the United States entitles a criminal defendant to the undivided loyalty of counsel, free from conflicting interests or inconsistent obligations. (People v. Flores (1989), 128 Ill.2d 66, 83, 131 Ill.Dec. 106, 538 N.E.2d 481, citing Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; People v. Washington (1984), 101 Ill.2d 104, 77 Ill.Dec. 770, 461 N.E.2d 393.) To ensure that the accused is not denied this sixth amendment guarantee of conflict-free representation, this court has adopted a per se conflict of interest rule "whereby allegations and proof of prejudice are unnecessary in cases where a defense counsel, without the knowledgeable assent of the defendant, might be restrained in fully representing the defendant's interests due to his or her commitments to others." (People v. Coslet (1977), 67 Ill.2d 127, 133, 7 Ill.Dec. 80, 364 N.E.2d 67, citing People v. Stoval (1968), 40 Ill.2d 109, 112, 239 N.E.2d 441.) Moreover, in situations where defense counsel has previously represented a prosecution witness, this court has repeatedly held that "a per se conflict of interest exists if 'the professional relationship between the attorney and the witness is contemporaneous with counsel's representation of the defendant.' " (Emphasis added.) (People v. Flores, 128 Ill.2d at 83, 131 Ill.Dec. 106, 538 N.E.2d 481, quoting People v. Free (1986), 112 Ill.2d 154, 168, 97 Ill.Dec. 396, 492 N.E.2d 1269; see also People v. Thomas (1989), 131 Ill.2d 104, 111, 137 Ill.Dec. 1, 545 N.E.2d 654; People v. Robinson (1979), 79 Ill.2d 147, 161, 37 Ill.Dec. 267, 402 N.E.2d 157; People v. Strohl (1983), 118 Ill.App.3d 1084, 1092, 74 Ill.Dec. 774, 456 N.E.2d 276.) In these per se conflict of interest situations, "the defendant need not show prejudice in order to justify a reversal of his conviction if the attorney representing him has an actual or possible conflict of professional interests." (Thomas, 131 Ill.2d at 111, 137 Ill.Dec. 1, 545 N.E.2d 654; People v. Washington (1984), 101 Ill.2d 104, 110, 77 Ill.Dec. 770, 461 N.E.2d 393.) Prejudice is presumed. Thomas, 131 Ill.2d at 111, 137 Ill.Dec. 1, 545 N.E.2d 654; Free, 112 Ill.2d at 167, 97 Ill.Dec. 396, 492 N.E.2d 1269; Coslet, 67 Ill.2d at 133, 7 Ill.Dec. 80, 364 N.E.2d 67; Stoval, 40 Ill.2d at 113, 239 N.E.2d 441.

In this case, we agree with the State that Rose's previous representation of Proctor in 1979, four years prior to defendant's trial, does not establish that a per se conflict of interest existed between Rose and defendant. As stated above, "[w]here defense counsel has represented a State's witness, a per se conflict of interests exists if the professional relationship between the attorney and the witness is contemporaneous with counsel's representation of defendant." (Emphasis added.) (Thomas, 131 Ill.2d at 111, 137 Ill.Dec. 1, 545 N.E.2d 654; Flores, 128 Ill.2d at 83, 131 Ill.Dec....