People v. Scott, No. 3-01-0981.

• Court: United States Appellate Court of Illinois
• Citation: 291 Ill.Dec. 726,824 N.E.2d 302,355 Ill. App.3d 741
• Docket Number: No. 3-01-0981.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Samuel R. SCOTT, Defendant-Appellant.
• Decision Date: 16 February 2005

824 N.E.2d 302
355 Ill. App.3d 741
291 Ill.Dec. 726

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Samuel R. SCOTT, Defendant-Appellant

No. 3-01-0981.

Appellate Court of Illinois, Third District.

February 16, 2005.

824 N.E.2d 304

Donna K. Kelly, Office of the State Appellate Defender, Ottawa, for Samuel Scott

John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Marshall E. Douglas, State's Attorney, Rock Island, Richard T. Leonard, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Presiding Justice SLATER delivered the opinion of the court:

The defendant, Samuel R. Scott, was convicted of unlawful delivery of a controlled substance in a drug-free zone. 720 ILCS 570/401(d), 407(b)(2) (West 1996). The trial court sentenced him to 12 years' imprisonment. Defendant filed a postconviction petition which was dismissed by the trial court. Defendant appeals, contending that: (1) he was denied effective assistance of counsel because his attorney was laboring under a conflict of interest at his preliminary hearing; and (2) the admission of a lab report at trial resulted in a violation of his right to confront the witnesses against him. We affirm.

FACTS

Attorney F. Michael Meersman was appointed to represent defendant after he was charged with unlawful delivery of a controlled substance in a drug-free zone. At the preliminary hearing, Officer John Hitchcock testified that he had observed defendant participate in the sale of cocaine at a public housing agency apartment occupied by Paul Brinkman. On cross examination, Hitchcock testified that Brinkman had "denied everything" related to the alleged transaction.

The court found probable cause for the charge. Meersman then notified the court that he had also been appointed to represent Paul Brinkman, but he was unsure if that matter was related to the incident involving defendant.

Meersman subsequently filed a motion to withdraw as defendant's attorney, asserting that a conflict of interest existed because he was appointed to represent Brinkman on charges related to this transaction, and Brinkman's account of the events was contradictory to defendant's version. The motion to withdraw was

824 N.E.2d 305

granted and another attorney was appointed to represent defendant

At trial, the testimony showed that Hitchcock was working as an undercover officer when he spoke to defendant and expressed an interest in buying cocaine. Defendant led Hitchcock to an apartment in a public housing complex, knocked on the door and spoke with Paul Brinkman. Brinkman testified that defendant asked him for "rock cocaine." Brinkman went to the rear of the apartment and then returned and placed a "rock" on the kitchen stove. Defendant picked up the rock. Hitchcock handed defendant $20. Defendant then handed the $20 to Brinkman and handed the rock to Hitchcock.

The State also introduced a lab report indicating that the substance weighed 0.1 gram and tested positive for the presence of cocaine. Defense counsel did not object to the admission of the lab report. The record also shows defendant's attorney agreed to stipulate to the contents of the report during a motion hearing held immediately prior to the trial.

The jury found defendant guilty of the offense, and the trial court sentenced him to 12 years' imprisonment. This court affirmed the judgment of the trial court on direct appeal. People v. Scott, No. 3-97-0657, 306 Ill.App.3d 1187, 258 Ill.Dec. 748, 757 N.E.2d 133 (1999) (unpublished order under Supreme Court Rule 23). Defendant then filed a postconviction petition, which was dismissed by the trial court.

DISCUSSION

On appeal, defendant contends that he was denied effective assistance of counsel because his attorney labored under either a per se or actual conflict of interest at the preliminary hearing.

A per se conflict of interest exists if a defendant's attorney has a professional relationship with a State's witness contemporaneous with counsel's representation of the defendant. People v. Flores, 128 Ill.2d 66, 131 Ill.Dec. 106, 538 N.E.2d 481 (1989); People v. Hernandez, 246 Ill.App.3d 243, 186 Ill.Dec. 39, 615 N.E.2d 843 (1993). If a per se conflict exists, a defendant is not required to show he was prejudiced by the representation to obtain a reversal of his conviction. People v. Spreitzer, 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30 (1988).

In contrast, a defendant who alleges an actual conflict of interest generally must show that the conflict affected his attorney's performance. Spreitzer, 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30; Hernandez, 246 Ill.App.3d 243, 186 Ill.Dec. 39, 615 N.E.2d 843. Actual conflicts of interest usually involve joint or multiple representation of co-defendants. Spreitzer, 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30. If defense counsel brings a potential conflict, such as multiple representation of co-defendants, to the attention of the trial court at an early stage, the court has a duty to either appoint separate counsel or to ascertain if the risk of conflict is too remote to warrant separate counsel. Spreitzer, 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30. Reversal of a conviction for failure of the trial court to alleviate a potential conflict of interest at an early stage does not require a showing of prejudice. Spreitzer, 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30.

Initially, we find that a per se conflict of interest did not exist. Although Meersman was appointed to represent Brinkman prior to defendant's preliminary hearing, the record shows that Meersman had not yet engaged in the representation of Brinkman at that time. Meersman did not meet with Brinkman prior to defendant's preliminary hearing. At defendant's hearing, Meersman was not aware of the nature of the charges against Brinkman,

824 N.E.2d 306

or whether those charges were related to the charges against defendant. Moreover, Meersman immediately withdrew from defendant's case after he met with Brinkman and discovered there was a conflict of interest. Based on these circumstances, we find that a per se conflict of interest did not exist because Meersman was not representing Brinkman at the time he appeared at defendant's preliminary hearing

We also find that no actual conflict of interest existed. Meersman informed the trial court of the possibility of a conflict at an early stage in the proceedings. Shortly thereafter, Meersman discovered...