People v. Freeman

• Decision Date: 12 May 1978
• Docket Number: No. 14519,14519
• Citation: 60 Ill.App.3d 794,377 N.E.2d 107,17 Ill.Dec. 917
• Parties: , 17 Ill.Dec. 917 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nick FREEMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 107

377 N.E.2d 107

60 Ill.App.3d 794, 17 Ill.Dec. 917

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nick FREEMAN, Defendant-Appellant.

No. 14519.

Appellate Court of Illinois, Fourth District.

May 12, 1978.

Rehearing Denied July 6, 1978.

Richard J. Wilson, Deputy State Appellate Defender, Donald T. McDougall, Asst. State Appellate Defender, Springfield, for defendant-appellant.

William J. Scott, Atty. Gen., Springfield, Donald B. Mackay, R. Philip Weber, Asst. Attys. Gen., for plaintiff-appellee.

MILLS, Justice:

A jury found Freeman guilty of armed robbery, the trial court sentenced him to 8 to 16 years, and this court affirms.

ISSUES

I. ASSISTANCE OF COUNSEL

II. VOIR DIRE

III. SUPPRESSION OF I.D.

IV. SENTENCING

FACTS

The facts relevant to certain of the issues on appeal will be summarized within the analysis of that question. But a brief outline of the rather undeniable facts of defendant's guilt in the instant case will afford an initial overview.

Defendant Freeman and a co-defendant, Winston, were charged by information with the crime of armed robbery at an "adult" bookstore, and after counsel was appointed, a rather complete discovery between the parties took place. At the conclusion of a 4 day trial, the jury returned a guilty verdict against Freeman and an innocent verdict for Winston.

At trial, John Scott testified that he saw an unfamiliar car, a red Pontiac, in his neighborhood on the evening of January 5, 1977, and noticed two individuals running from the "adult" bookstore in military fashion (ducking down, etc.). The bookstore attendant, Terry Gilliland, testified that about 7:00 p. m. that evening, two people came in the back door of the bookstore, their faces covered, one with a ski mask and the other with a nylon stocking. The former had a handgun and the latter carried a shotgun. At the robbers' directions, Gilliland opened the cash register and a display case containing quarters. The robbers then directed him to get into a movie booth inside the store. During the robbery, he stood within 5 feet of one of the robbers for about 30 seconds. Approximately $440 was taken. Gilliland identified defendant Freeman as the robber with the shotgun and testified he had never identified the defendant before the date of the trial but had seen defendant in the hall the day before trial. Gilliland further testified that he had been shown pictures of the two defendants by the prosecutor the day before trial and that he had been shown no other pictures at the same time. It was after viewing the pictures that he saw the defendant.

Officer Lockard, later on the day of the robbery, spotted the Pontiac in question parked in a trailer park. He followed some footprints from the car to a shed (there were some three or four inches of fresh snow on the ground) where he discovered a toy pistol and the shotgun wrapped in a green raincoat.

Officer Krueger described a conversation with Freeman (after Miranda warnings were given) where defendant admitted driving the red Pontiac behind the store, that he was wearing a green coat, gloves and nylon stockings and carrying a shotgun (over-and-under barrel configuration). Defendant also admitted to Officer Krueger that he had ordered the manager into a movie booth and after leaving the store, broke the gun "down". Defendant further admitted to Krueger that he parked the car in the trailer park and went into the trailer of co-defendant Winston's wife.

Freeman was found guilty. Winston was not.

OPINION

I WAS DEFENDANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

This issue is grounded on a conflict of interest proposition. Defense arguments revolve around the fact that even though defendant Freeman and defendant Winston were represented by different counsel, since both of the attorneys were from the public defender's office, both defendants were being represented by "the office" rather than individual attorneys. At trial, a motion in limine was granted so that the jury was kept from knowing that defense counsel for both defendants were from the public defender's office. During the course of the trial, defense counsel for both defendants were free in assisting each other on arguments relative to motions of the other counsel. (An example would be that Winston's defense counsel aided in setting forth reasons to support Freeman's motion to suppress the in-court identification. Likewise, Freeman's counsel helped put forward reasons why a certain piece of evidence harmful to defendant Winston should be inadmissible.) It is really undisputed that the joinder of both defendants in this case could only help Freeman's chances of keeping his confession away from the jury.

Defense counsel tries to argue that the trial judge should have realized the possibility of a conflict in this case and have ordered the appointment of different counsel (and not necessarily a severance), or in the alternative, that actual prejudice was shown in the attorneys' handling of the case. During final argument, Winston's counsel suggested that defendant Freeman could have picked up one of the "guns" used in the robbery (a toy gun from Winston's son's playroom). This is it is argued actual prejudice. In addition, counsel on appeal points to another remark, this time made by this defendant's (Freeman's) trial counsel at the start of closing argument. The statement which draws so much attention in this case was:

"One word about Mr. Winston, who is not my client, before I start. I would submit to you that the evidence in this particular case is very much lacking as to this particular individual and a verdict of guilty as to Mr. Winston would appear to be a travesty of justice and I will confine my arguments from this point on as to my client, Nick Freeman."

It is argued that where defense counsel volunteered that it would be a "travesty of justice" if co-defendant Winston were convicted, defense counsel was implicitly admitting to the jury that it would not be a "travesty of justice" if his own client were found guilty!

It is undisputed that every defendant has a right to the undivided loyalty of counsel and that representation will be found lacking where it is hobbled, fettered or restrained by a commitment to others. (People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441.) The cases seem to indicate, however, that a "commitment to others" is one where the commitment is to a person or entity somehow interested in conviction. (In the instant case, co-defendant Winston was not, nor would not be, interested in Freeman's conviction.) Rather, we see this to be a situation where the test is that set forth in People v. Precup (1977), 50 Ill.App.3d 23, 365 N.E.2d 1007, (leave to appeal allowed). In Precup, this court stated that there are no instances found of a rule finding a per se conflict where representation of two defendants is by one counsel and that an actual existing conflict of interest between the defendants must appear. We view defendant to be correct when he argues that it is the office of the public defender which represents a client in court through individual assistants. (People v. Benford (1975), 31 Ill.App.3d 892, 335 N.E.2d 106.) Practically speaking, therefore under Benford, both defendants were represented by one entity. However, as stated in Precup, there must be an actual existing conflict between the defendants. See also People v. Fuller (1974), 21 Ill.App.3d 437, 442, 315 N.E.2d 687, 690.

The State's argument that the flood gates would be opened if this court were to find that the public defender may not represent more than one defendant in any criminal action involving multiple defendants is totally void of merit. As was stated by Mr. Justice Crebs in People v. Bain (1974), 24 Ill.App.3d 282, 320 N.E.2d 426, "Justice cannot be weighed in dollars and cents, nor in convenience to the State." However, since it appears manifestly clear that there is no per se rule in Illinois prohibiting the public defender to appear on behalf of more than one defendant in any situation (absent actual prejudice), this argument by the State need be pursued no further.

It is apparent from a full review of the report of the trial proceedings that the defenses put forward by Freeman and Winston were not antagonistic on their face. Both denied guilt. Neither testified during trial. No statements of Freeman implicated Winston, no statements of Winston implicated Freeman. The only scrap of evidence even suggesting prejudice would be the "travesty of justice" statement by Freeman 's counsel during closing argument. And we are not aware of any case or opinion that has found actual prejudice merely from counsel's argument it is the evidence in the record that must establish the actual prejudice. Here there was none. And, as our court's Mr. Justice Sam Smith stated in People v. Smith (1974), 19 Ill.App.3d 138, 310 N.E.2d 818, "An attorney can argue the innocence of his clients and totally represent them both and at the same time argue that though innocence conceptually is an absolute, one can be more innocent than the other so far as proof." It seems that this is what happened in this case.

We do not interpret the remark to be a confession by counsel that justice would not be mortally wounded if his client were found guilty. We certainly grant that were counsel to "have his druthers" (hindsight being 20-20) he would have opted for deleting such argument, but we cannot view the remark as any sound foundation upon which to build actual prejudice.

II DID THE TRIAL COURT ERR IN ALLOWING CERTAIN QUESTIONS TO BE PUT TO PROSPECTIVE JURORS?

During voir dire, the prosecutor asked the following question:

"Would either of you (two jurors) find it impossible in your own minds to find a verdict of guilty if there were no eyewitness testimony presented to you from the witness chair?"

Defense counsel's objections to the question were overruled. Later in the voir dire, the prosecutor asked the...