People v. Holmes

• Decision Date: 30 November 1990
• Docket Number: No. 65409,65409
• Citation: 152 Ill.Dec. 268,141 Ill.2d 204,565 N.E.2d 950
• Parties: , 152 Ill.Dec. 268 The PEOPLE of the State of Illinois, Appellee, v. Marion HOLMES, Appellant.
• Court: Illinois Supreme Court

Page 950

565 N.E.2d 950

141 Ill.2d 204, 152 Ill.Dec. 268

The PEOPLE of the State of Illinois, Appellee, v. Marion HOLMES, Appellant.

No. 65409.

Supreme Court of Illinois.

Nov. 30, 1990.

Steven Clark and Michael J. Pelletier, Deputy Defenders, and Debra R. Salinger and Barbara Kamm, Asst. Appellate Defenders, of the Office of the State Appellate Defender, Chicago, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley and Cecil A. Partee, State's Attys., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Inge Fryklund, James E. Fitzgerald, Patrick M. Brady and Renee Goldfarb, Asst. State's Attys., of counsel), for the People.

Justice STAMOS delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Marion Holmes, was found guilty of armed robbery (Ill.Rev.Stat.1983, ch. 38, par. 18-2(a)) and was sentenced to 15 years' imprisonment. The appellate court affirmed (155 Ill.App.3d 562, 108 Ill.Dec. 244, 508 N.E.2d 405). We granted defendant's petition for leave to appeal (107 Ill.2d R. 315).

FACTS

On March 23, 1980, two men robbed a McDonald's Corporation office in Chicago Heights of $13,000. The office operated as a clearinghouse for the receipts of eight McDonald's restaurants. Defendant was arrested for the crime in January 1982, after his alleged accomplice, Ulrich Williams, implicated him in the robbery.

Prior to trial, the State filed a motion to remove defendant's attorney, Leo Holt, from the case because of a conflict of interest. Holt had previously represented Williams, the State's key witness, in various criminal matters. Defendant replied by filing a memorandum which alleged that no conflict existed and that, even if one did, he waived his right to conflict-free counsel. The court conducted a hearing on this motion, at which Holt admitted that from 1972 through 1978 he had represented Williams on several criminal charges, and that five years prior to the current proceeding he had had communications with Williams which would be covered by the attorney-client privilege. The trial court determined that a conflict of interest existed which was impossible to waive, and removed Holt from the case.

Defendant subsequently retained Isaiah Gant as his attorney. Gant then filed a motion to allow discovery of a statement Williams had made in an unrelated proceeding. The State objected to releasing the entire statement on the grounds that much of the material was irrelevant, and that much of the information in Williams' statement would jeopardize ongoing, unrelated investigations and endanger the safety of certain police informants. Over defendant's objection, the trial judge conducted an in camera inspection of the statement in the presence of the assistant State's Attorney and a court reporter. After considering the State's reasoning for excising certain portions of Williams' statement, the trial judge concluded that some of the disputed information could adversely affect informants in other cases and involved ongoing investigations or matters pending in other jurisdictions which were unrelated to the matter before the court. Thus, the trial court allowed the State to tender the statement to defendant with 12 sections excised. The trial court placed copies of the original and excised versions of Williams' statement under seal, along with the court reporter's transcript of the in camera proceeding, to allow for a reviewing court's scrutiny.

At trial, two eyewitnesses, Patricia Skalski and Sherry Van Kampen, both of whom were McDonald's employees, testified for the State. The testimony of these two witnesses regarding the events which took place during the robbery was generally consistent. The testimony regarding the physical descriptions of the robbers, however, varied somewhat. The witnesses' specific descriptions of defendant differed from a height of 5 feet 4 inches to 6 feet, a weight of 160 pounds to 230 pounds, and an age of 35 years to 45 years. Their descriptions of Williams differed from 5 feet 6 inches to 6 feet, 180 to 225 pounds, and 30 to 40 years. The record indicates that defendant was 47 years old on the date of the robbery.

Eighteen months after the robbery took place, both eyewitnesses were shown photographic lineups. They were shown two groups of photographs, each group containing seven photographs. One group contained a picture of defendant; the second contained a picture of Williams. Van Kampen picked defendant's and Williams' pictures out of their respective groups. She also later made an in-court identification of defendant. She further testified that both robbers wore ski masks and that, before they left the office, they removed them. According to Van Kampen, this allowed her to clearly see the perpetrator's face. While there was testimony from one of the investigating police officers that Van Kampen had stated that the two robbers "were similar in appearance, possibly brothers," she denied ever saying that the robbers looked alike or could have been brothers. Skalski, however, was unable to identify anyone from the photographs, and apparently also did not make an in-court identification of defendant.

Ulrich Williams testified for the State. He stated that he and defendant robbed the McDonald's office. Williams had confessed to the crime 18 months after the robbery while in the custody of the Lake County, Indiana, police. He also identified himself and defendant from the same sets of photographs shown to Skalski and Van Kampen. His testimony also basically corroborated the eyewitnesses' testimony regarding the events which took place at the robbery: Both robbers wore ski masks and were armed. They removed their masks as they prepared to leave the office. Before they could leave, however, a group of motorcyclists in the parking lot compelled them to wait until they could escape unseen. This allowed Van Kampen the opportunity to view the robbers' faces. They then left the office and walked to their car at a leisurely pace so as not to attract attention.

Williams further testified that he had been convicted of various criminal offenses, including possession of a controlled substance and mail fraud. In exchange for Williams' agreement to testify against defendant, the State recommended, and Williams ultimately received, a six-year sentence for his participation in the McDonald's robbery. Williams also testified that his family had been relocated and had received $2,325 from the State for relocation expenses.

The jury found defendant guilty of armed robbery. Defense counsel Gant filed a motion for a new trial, to which defendant added an addendum. These documents alleged that Gant rendered ineffective assistance of counsel. Specifically, the motions alleged that Gant failed to pursue, on cross-examination, the possibility that Williams' brother, not defendant, was the other man who participated in the robbery.

Gant and defendant relied on two pieces of evidence to support the theory that Williams' accomplice was Williams' brother. The first was the testimony that Van Kampen had told an investigator that the two robbers were similar in appearance and could have been brothers. The second was Williams' testimony on cross-examination that some of his family members had been involved in the mail fraud scheme for which he had been convicted and that these family members had been convicted as well. According to Gant, these two bits of testimony "should have put counsel [Gant], * * * on notice that a line of cross-examination regarding Ulrich Williams' brother the description of the brother, the other criminal offenses that he and his brother were convicted or involved in, should have been pursued." The trial court denied the motions and sentenced defendant to 15 years' imprisonment. The appellate court affirmed. 155 Ill.App.3d at 584, 108 Ill.Dec. 244, 508 N.E.2d 405.

ANALYSIS

Defendant argues that the trial judge erred in ruling that attorney Holt had a conflict of interest, and that this ruling effectively denied defendant his constitutional right to his counsel of choice. Defendant further argues that the trial judge's refusal to release relevant discovery material violated defendant's constitutional right to confrontation and due process, that defendant was denied effective assistance of counsel because Gant failed to introduce critical evidence that the robbery was committed by Williams' brother, not defendant, and that defendant was not proven guilty beyond a reasonable doubt because the eyewitnesses' identifications were too varied to be trustworthy and because Williams' identification was tainted by a motive for lying. For reasons we shall explain below, we affirm the judgments of the lower courts.

I

In his first contention, defendant argues that he was deprived of his constitutional right to counsel of choice when the trial court granted the State's motion to disqualify attorney Holt on the ground that Holt had a conflict of interest which was impossible to waive.

The sixth amendment guarantees that, in all criminal prosecutions, the accused shall have the right to assistance of counsel. (U.S. Const., amend. VI.) This right was designed to assure fairness in the adversary criminal process. (United States v. Morrison (1981), 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564, 567.) This constitutional guaranty encompasses both the right to effective representation by competent counsel (People v. Johnson (1979), 75 Ill.2d 180, 185, 25 Ill.Dec. 812, 387 N.E.2d 688) and the right to select and be represented by one's preferred attorney (Wheat v. United States (1988), 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140, 148; Johnson, 75 Ill.2d at 185, 25 Ill.Dec. 812, 387 N.E.2d 688). This court has held that this right to effective assistance of counsel includes assistance by an attorney whose allegiance to the client is not diluted by conflicting interests or inconsistent...