THIRD DIVISION June 29, 2007
No. 1-04-3835
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from ) the Circuit Court Plaintiff-Appellant, ) of Cook County. ) v. ) No. 87 CR 06369 ) HERNANDEZ BAILEY, ) Honorable ) James R. Epstein, Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE THEIS delivered the opinion of the court:
Following a third-stage evidentiary hearing under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 1994)), the trial court granted defendant’s request for a new
trial based on ineffective assistance of trial counsel. The State now appeals, contending that the
grant of a new trial was manifestly erroneous. Specifically, the State argues that: (1) defendant
failed to prove that his trial counsel was ineffective in failing to file a written pretrial discovery
motion, failing to impeach an eyewitness with certain grand jury testimony, or failing to recognize
that his dual representation created an actual conflict of interest, and (2) the circuit court relied on
improper evidence from outside the record in making credibility determination with respect to trial
counsel. For the following reasons, we reverse the judgment of the circuit court. 1-04-3835
BACKGROUND
On May 8, 1987, Anthony Jackson was fatally shot, and Brandon Abrams and Anthony
Camphor were shot and injured during a melee occurring near an elevator on the ground level of a
Chicago Housing Authority building at 4101 South Federal Street in Chicago. At trial, Abrams, as
well as two other eyewitnesses, Michael Thompson and Torrence Adams, testified on behalf of
the State. Defendant and codefendant Darryl Moten were both represented by privately retained
attorneys William Swano, Abbey Fishman, and Edward Stern in a joint bench trial. This was a
capital murder case for defendant as he had a prior murder conviction. The State’s theory of the
case was that Moten was the shooter and that defendant was liable under an accountability theory.
Defendant was ultimately convicted of first degree murder and two counts of attempted murder
and was sentenced to life imprisonment on the murder conviction and concurrent ten-year prison
terms on the two counts of attempted murder.
The following relevant evidence was adduced from the record on appeal. At trial,
Brandon Abrams testified that on May 8, 1987, he observed a man throw a brick at a group of
people and Abrams and Camphor chased the man to the elevator area at 4101 South Federal.
Abrams observed about ten people standing around, including Thompson and Adams. Abrams
asked whether they saw where the man who threw the brick had gone. Someone replied, “there
they go.” Next, Abrams heard someone say “shoot them marks.” Abrams then stated that a lot
of people were shooting and that he and Jackson got shot. Abrams was unable to identify the
shooter or the person who uttered the words “shoot them marks,” although he said that the
gunshots came from the group standing in front of the elevator. He also admitted that he and
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Camphor were members of the Vice Lords gang.
Torrence Adams testified that on the night of May 8, 1987, he and Thompson were
returning from a liquor store and as they walked through the elevator area of 4101 South Federal,
they saw a group of people standing around, including four people associated with the Gangster
Disciples street gang. Adams recognized defendant and codefendant Moten as two of those four
people. Adams stated that he had known codefendant Moten for five years and did not personally
know defendant, but had heard of and had seen him on the street once or twice and knew he went
by the nickname “Peanut.”
As Adams and Thompson left the elevator area, they saw two men run by the area
followed by a third person. Adams identified the first two men as “Brandon” and “Ant.” One of
the men asked Adams if he knew the man who had run through the area, and Adams tried to
signal to the men “to look over there,” but the others did not understand. At this time, a fourth
man, who was not wearing a shirt, ran to the area and stooped to tie his shoe. Adams testified
that codefendant Moten turned around and fired a gun and that defendant said “shoot.” As
Adams ran away, he saw the man without the shirt fall to the ground.
On cross-examination, Adams equivocated, stating that although he saw defendant there,
he did not know if defendant was the person who said, “shoot.” Adams further testified that he
was interviewed by police offers after being placed in a lineup on May 11, 1987. When asked on
cross-examination whether he told Detective Kelly that Moten was involved in the shooting and
that he saw “Peanut” at the scene of the shooting, Adams insisted at trial that he had told the
officers that information, but was unable to remember the name of the officer with whom he had
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spoken.
Next, Thompson testified that at the time of trial, he was serving a six year prison sentence
for aggravated battery. He had known defendant his whole life and had also known codefendant
Moten. On May 8, 1987, he was with Adams a little before 11 p.m. When they arrived at 4101
South Federal, they saw a large number of people near the elevator at the center of the building.
When Thompson walked out of the building, some guys came through talking to each other.
Thompson testified that a man standing by the wall near the elevator then turned around and shot
one of the men. At trial, Thompson testified that he could not identify the shooter because it was
dark.
The State moved to have Thompson declared a hostile witness based upon his earlier
statements to a police officer and a statement made to the prosecutor the day before his
testimony. In that statement, he referenced his grand jury testimony in which he identified
codefendant Moten and defendant as participants in the shooting. The prosecutor informed the
court that she was not aware of any grand jury transcript of Thompson, but that she would check
the records. Specifically, she indicated to the court that the testimony upon which the grand jury
returned an indictment had already been tendered to the defense. In addition to that statement,
the prosecutor indicated to the court that:
“there was evidently testimony that was brought out under a John Doe transcript
prior to the Indictment, the actual Indictment. If that is the case, we are both
entitled to have it and I don’t physically have it.”
Defense counsel acknowledged that he had been tendered a grand jury transcript by the State, but
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indicated that the transcript did not include testimony from Thompson. It also became apparent
that defense counsel had not filed a written motion for pretrial discovery, but that the State had
filed an answer. The prosecutor indicated to the court that, “the answer that we filed said that the
[grand jury testimony] would be made available upon being received by the People and we don’t
have it.”
After a continuance, it became apparent that Thompson and Adams had indeed previously
testified before the grand jury in a “John Doe Investigation” prior to its returning an indictment.
The prosecutor tendered a copy of that transcript to defense counsel and defense counsel
acknowledged receipt of that on the record. The transcript included the grand jury testimony
from both Thompson and Adams.
The State also called Detective Thomas Kelly for the purpose of voir dire to determine
whether Thompson could be declared a hostile witness. Detective Kelly testified in voir dire that
on May 11 and 12, 1987, he interviewed Thompson regarding the death of Jackson and the
attempted murder of Abrams and Camphor. Thompson told him that he heard defendant say
“shoot him, shoot him” and told him that he saw Moten shoot Jackson. Detective Kelly also
testified that just prior to trial, he was present in the jury room for a conversation that Thompson
had with the Assistant State’s Attorney. During that conversation, he heard Thompson state that
codefendant Moten shot Jackson and that he heard defendant say, “shoot him, shoot him.” The
court then declared Thompson a hostile witness.
When Thompson resumed the witness stand, he again indicated that he was not sure who
fired the gun because it was dark. Nevertheless, he admitted that he told the police on May 11,
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1987, that he saw and heard defendant say “shoot him, shoot him,” and he then saw codefendant
Moten pull a gun from his waistband and shoot Jackson. He further acknowledged that he
testified in the same manner before the grand jury. Additionally, he admitted that on May 12,
1987, he identified defendant in a lineup as the person who shot at him six times and as the person
who told codefendant Moten, “shoot him, shoot him.” With respect to the statements made in the
jury room to the prosecutor, Thompson testified that he was not sure if he said that codefendant
Moten was the shooter. As to whether he stated that defendant told codefendant Moten to
“shoot him, shoot him,” Thompson stated, “I think --yes, yes, I think so.”
At the conclusion of the State’s case-in-chief, the trial court admitted as substantive
evidence both Thompson’s grand jury testimony and statements made to police officers on May
11, 1987. In his grand jury testimony, Thompson indicated that he saw codefendant Moten reach
into his waistband, pull out a revolver and shoot at Jackson, that defendant told codefendant
Moten to “hit him,” and that codefendant Moten then shot Jackson in the stomach. Thompson
also testified that he told police the same story he told the grand jury.
The parties then stipulated that if Detective Kelly were called as a witness, he would
testify consistently with his voir dire testimony. Additionally, the parties stipulated to the
testimony of Detective Grady regarding the lineup and Thompson’s identification of defendant as
the person he heard say “shoot him, shoot him.” A motion for a directed finding was denied as to
both defendants.
The defense proceeded by way of stipulation. The parties stipulated that if Detective
Kelly were called to testify, he would state that on May 11, 1987, he interviewed Adams in a
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lineup. At no time during that interview did Adams mention to him that defendant or “Peanut”
was present at the scene of the shooting or that Adams heard defendant or “Peanut” tell anyone to
“shoot, shoot.” It was also stipulated that if Victoria Ondriska were called to testify, she would
state that on May 13, 1987, she was working as an Official Court Reporter assigned to the Cook
County grand jury, that Adams was a witness before the grand jury, and during the course of his
testimony, at no time did he mention that defendant or “Peanut” was present at the scene of the
shooting.
The trial court found that Adams made an “excellent” identification and testified
“convincingly.” The court indicated that “it’s not as though it is a first time, that he sees the
defendants for the first time.” With respect to Thompson’s testimony, the court found that
although Thompson testified at trial that he could not identify anyone, the court assigned weight
to his statements to the police and the grand jury, and stated that he had a motive to recant his
earlier identification of defendants as the perpetrators due to his anger towards the State’s
Attorney for having successfully prosecuted, convicted and incarcerated him, in that he had hoped
to gain some advantage with respect to the charges pending against him by testifying on behalf of
the State. The court further found that Thompson’s statements made in the jury room added to
the reliability of his statements to the police and before the grand jury. The court found that
although Thompson’s out-of-court statements implicating defendant were insufficient alone to
convict defendant, they were sufficient when coupled with Adams’ testimony.
With respect to the stipulation that Adams never told Detective Kelly that defendant or
“Peanut” was present at the scene or told codefendant Moten to shoot, the court found that
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although it had some impeachment value, its value was diminished because Adams indicated that
he had talked to several officers, but could not recall the name of the officer to whom he gave that
information. As to the stipulation regarding Adam’s grand jury testimony, the court indicated,
“Context of the Grand Jury testimony, I have no context.” Based upon Adams’ convincing
testimony at trial and that he had previously known the defendants, as well as Thompson’s
statements to police officers and his testimony before the grand jury coupled with his statements
in the jury room, the court found defendant and codefendant Moten guilty of the murder of
Jackson and the attempted murder of Abrams and Camphor.
Defense counsel Swano filed a posttrial motion challenging the sufficiency of the evidence.
Swano argued that the trial court failed to adequately consider the impeachment value of the
stipulations regarding Adams’ statement to Kelly and testimony before the grand jury.
Specifically, Swano argued that “Adams had opportunities to make identifications during the
course of the investigation and Grand Jury,” and “he didn’t make specifically any identification of
[defendant] until he came into this court and for the first time identified [defendant] as somebody
involved.” After hearing the arguments, the trial court denied the posttrial motion. With respect
to the sufficiency of the evidence, the trial court stated that although Thompson’s out-of-court
statements alone were not originally that impressive as evidence, when corroborated with
statements he made on the eve of trial, the evidence was more impressive. Defendant was
sentenced to natural life imprisonment for the murder and concurrent sentences of ten years on
the two counts of attempted murder. Defendant’s convictions and sentences were affirmed on
direct appeal. People v. Bailey, 265 Ill. App. 3d 262, 638 N.E.2d 192 (1994).
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Subsequently, defendant filed a pro se post-conviction petition for relief under the Act
alleging, inter alia, ineffective assistance of counsel. After reviewing the allegations in the
petition, the circuit court docketed the petition for further consideration and appointed counsel to
represent defendant. Ultimately, the matter was reassigned to private counsel. Thereafter, on
August 17, 2000, the State filed a motion to dismiss the petition, arguing inter alia that he failed
to satisfy the requirements for ineffective assistance of counsel claims.
On September 2, 2002, defendant filed an amended post-conviction petition, asserting,
inter alia, the ineffective assistance of trial counsel, William Swano, in that he (1) had a conflict
of interest due to his joint representation of both defendant and codefendant Moten; (2) failed to
timely file a written discovery motion and, as a result, failed to adequately impeach Adams with
his grand jury testimony. In support, defendant attached a recent supreme court case which
revealed that after defendant’s trial, Swano had been convicted of bribing judges, had perjured
himself, and had been taking drugs during the period that he represented defendant. Defendant
filed a response to the State’s motion to dismiss in support of the allegations contained in his
amended petition.
The circuit court denied the State’s motion to dismiss the petition and set the matter for an
evidentiary hearing. In denying the motion, the court made the following findings:
“I think that given the very peculiar and--thank goodness--very rare
circumstances that coalesced Mr. Swano’s behavior in the criminal
court, and [his] admitted lying, and [his] admitted bribing of a
judicial officer and witnesses; that, coupled with the joint
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representation of people in this case; it would be completely
unwarranted for me to dismiss this case without the opportunity for
an evidentiary hearing.”
To preserve review in this court, the State filed an answer to defendant’s amended post-
conviction petition, reiterating the grounds for dismissal of the petition and denying defendant’s
allegations of ineffective assistance of counsel.
Prior to the evidentiary hearing, defendant supplemented the record with various
documents related to Swano’s past criminal activity. Those documents revealed that in 1991, two
years after defendant’s conviction and sentence, Swano was indicted on federal racketeering
charges relating to his representation of certain gang members. The indictment specified that
Swano repeatedly bribed judges, presented perjured evidence, and received cocaine in exchange
for his legal services. Swano ultimately pled guilty to federal racketeering charges and agreed to
cooperate with federal prosecutors in that case. Subsequently, Swano was suspended from the
practice of law and was disbarred in 1996, seven years after the end of defendant’s trial.
The parties also filed a joint submission of undisputed facts and submitted the grand jury
testimony of Adams. Therein, Adams testified that he was in the vicinity of 4101 South Federal
on the night of the occurrence. When asked whether he was alone or with other people, he
replied, “With a friend, sir.” When asked if he saw Moten there, he responded, “Yes, sir.” When
asked whether Moten was alone or with other people, Adams replied, “with three more other
guys.” Adams then testified that he saw people come through the breezeway and that Moten
turned around and shot the third person in the breezeway.
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Defendant testified at the evidentiary hearing that the fees for his defense, as well as
codefendant Moten’s defense, were paid for by the leader of the Gangster Disciples street gang.
Defendant stated that trial counsel never told him there could be potential problems resulting from
his dual representation of defendant and codefendant Moten. Nevertheless, on cross-examination,
he acknowledged that prior to opening statements in his bench trial, he heard the judge and trial
counsel discussing the issue of conflict due to joint representation. Defendant further
acknowledged that Swano asked him on the record if he had talked to defendant and that
defendant responded, “I talked to him. No conflict.” On redirect, defendant testified that he
understood that a conflict would have resulted in separate trials for him and codefendant Moten.
The parties stipulated that if the trial judge testified, he would state that although he could
not recall giving conflict of interest advisements to the defendants, he was confident that he gave
detailed and complete advisements, and that each defendant acknowledged that he understood
those advisements and that they did understand them. “I say this with certainty because that was
my practice in every case where there was representation by one lawyer or a group of lawyers of
two or more defendants in the same case.”
The State also entered into evidence the statement of William Swano. With respect to his
failure to file a written pretrial motion for discovery, Swano indicated that it was common
practice for an attorney to make an oral or a written motion for discovery at the time of an
appearance because the State complied with discovery pursuant to the Illinois Supreme Court
Rules, regardless of whether a motion was written or oral. Swano further stated that the State
and the defense learned of the existence of the grand jury transcript of Thompson and Adams
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from the “John Doe investigation” before the testimony of Thompson had been completed and
that the transcript, including the testimony of Thompson and Adams, was tendered to him at that
time. Swano also noted that he had interviewed Thompson prior to trial and also had his
statement to police available to him. Swano indicated that he then filed a written motion for
discovery and a stipulation regarding the grand jury testimony of Adams, which he believed
perfected the impeachment of Adams’ identification testimony at trial.
With respect to the issue of conflict, he stated that since it was a bench trial, he elected to
represent both defendants with co-counsel. He determined that since both defendants had
consistent defenses of reasonable doubt there was no conflict. Swano further stated that he
discussed the dual representation with defendant and in open court when the issue was raised
prior to trial. He explained to defendant that if there was a conflict in the testimony with respect
to codefendant Moten, it may not have been in defendant’s interest to have him represent both
defendants. Based upon Swano’s knowledge of the case, he believed there was no conflict
because the codefendants had not made statements against each other.
After hearing arguments from the parties, the postconviction court made the following
findings. The court found that Swano lacked credibility with respect to the issue of trial tactics,
given his history as an admitted liar, briber of judges, abuser of drugs, and a federally convicted
felon. The court then analyzed the actions of Swano under the test enunciated in Strickland v.
Washington and found that Swano’s failure to file a written pretrial discovery motion to be both
objectively unreasonable and prejudicial. In articulating its reasoning, the court stated,
“There was a significant opportunity to impeach Mr.
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Adams that was lost because, A, there was no discovery motion; B,
there was no attempt to obtain nor did they obtain the grand jury
testimony of Mr. Adams before his examination on the witness
stand; and, C because when it was attempted to be cured by a
stipulation, that was done in a wholly inadequate manner.”
The postconviction court reiterated that the trial judge had placed great weight on the trial
testimony of Adams and that the stipulation regarding the grand jury testimony of Adams lacked
context and was therefore was given little weight.
With respect to the conflict of interest, the postconviction court found that at the time of
any conflict admonishments that may have been given, there was no knowledge on anyone’s part
of the existence of the grand jury testimony wherein Adams identified Moten and not defendant.
The court then stated in pertinent part as follows:
“What does the attorney do, even if he has full knowledge
of that, at that time? Well, it seems to me he doesn’t even attempt
to represent both people because, [w]hat are you doing in that
situation? Do you decide to challenge the testimony of Mr. Adams
not identifying Mr. Bailey? Because you have to challenge that
testimony if you are trying to protect Mr. Mot[e]n. Or do you sit
back and hope that the failure of Mr. Adams to identify Mr. Bailey
becomes an issue of reasonable doubt in Mr. Bailey’s case? You
can’t serve two masters under those circumstances.
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And, so, how you can have an effective waiver of conflict
when the nature of the conflict is not even apparent to the people
having the conversation at that time, I don’t know.
It seems to me once the existence of this testimony of Mr.
Adams before the grand jury is known to the lawyers in the court,
that would occasion the requirement of a second inquiry as to
conflict of interest because now you know that there is testimony
arguably favorable to one and unfavorable to another. And what is
the attorney representing both to do under those circumstances? It
seems to me to be a very, very difficult, if not unsolvable, problem.”
At the conclusion of the hearing, the postconviction court granted defendant’s petition for relief
and ordered a new trial.
ANALYSIS
The State contends on appeal that the postconviction court erred in granting defendant a
new trial based upon the ineffective assistance of trial counsel. The Post-Conviction Hearing Act
(725 ILCS 5/122-1 et seq. (West 1994)) provides a means by which a defendant may challenge
his conviction or sentence for violations of federal or state constitutional rights. People v.
Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999, 1007 (2006). To be entitled to postconviction
relief, a defendant must show that he has suffered a substantial deprivation of his federal or state
constitutional rights in the proceedings that produced the conviction or sentence being challenged.
Pendleton, 223 Ill. 2d at 471, 861 N.E.2d at 1007.
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Throughout the second and third stages of a postconviction proceeding, the defendant
bears the burden of making a substantial showing of a constitutional violation. Pendleton, 223 Ill.
2d at 473, 861 N.E.2d at 1008. When a petition is advanced to the third stage for an evidentiary
hearing where fact-finding and credibility determinations are involved, we will not reverse those
findings unless they are manifestly erroneous. Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008.
Nevertheless, if the issues presented are based on pure questions of law, we apply a de novo
standard of review, unless the judge presiding over the proceedings had some special familiarity
with the trial or sentencing of the defendant and that had some bearing on the disposition of the
postconviction petition. Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008.
In determining whether a defendant was denied the effective assistance of counsel, we
apply the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by this court in People v. Albanese, 104 Ill. 2d 504,
473 N.E.2d 1246 (1984). To prevail on a claim of ineffective assistance of counsel, a defendant
must show both that counsel's performance was deficient and that the deficient performance
prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693
(1984). More specifically, the defendant must demonstrate that counsel's performance was
objectively unreasonable under prevailing professional norms and that there is a “reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A
reasonable probability that the result would have been different is a probability sufficient to
undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694, 104 S. Ct.
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at 2068, 80 L. Ed.2d at 698. The failure to satisfy either prong of the Strickland test precludes a
finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L.
Ed. 2d at 699.
The postconviction court held that because of Swano’s failure to file a written pretrial
discovery motion and obtain Adams’ grand jury testimony prior to his cross-examination, “there
was a significant opportunity to impeach Mr. Adams that was lost,” and that Swano’s attempt to
cure this error through a stipulation “was done in a wholly inadequate manner.” At the outset, we
recognize that the failure to file a motion for discovery is neither per se proof of incompetency
nor per se ineffective assistance of counsel as a matter of law. People v. Williams, 63 Ill. 2d 371,
373, 349 N.E.2d 14, 16 (1976). Rather, such a determination must be determined on a case-by-
case basis from the record before the court. Williams, 63 Ill. 2d at 373, 349 N.E.2d at 16.
Here, the record reflects that although Swano did not file a written pretrial discovery
motion, the State filed an answer, and at the time of trial, Swano had indeed been provided with
the grand jury transcript from which the grand jury returned an indictment. Neither Thompson or
Adams had testified at that hearing. Additionally, the record reflects that the prosecutor was not
aware of the additional grand jury transcript from a John Doe investigation until Thomas took the
stand at trial. As soon as she became aware of it, there was a continuance, and the prosecutor
tendered the relevant transcripts to Swano. Accordingly, Swano had Adams’ transcript from the
grand jury during the trial, albeit after Adams testified on cross-examination. Although counsel
may have been deficient in failing to file a proper written motion under Supreme Court Rules,
Swano had the relevant grand jury testimony at trial. Thus, the question we must consider is
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whether defendant was ultimately prejudiced by Swano’s delay in obtaining that testimony. See
People v. Clemons, 277 Ill. App. 3d 911, 921, 661 N.E.2d 476, 483 (1996) (although counsel
may have been under a duty to make formal request for discovery, no indication in the record that
failure to make such request prejudiced the defendant).
Defendant maintains, and the postconviction court found, that defendant was prejudiced
because Adams’ grand jury testimony would have provided a significant opportunity for
impeachment by omission of the State’s key eyewitness and that the stipulation was inadequate
because it had no context. “The omission of a witness to state a particular fact under
circumstances rendering it incumbent upon him to, or likely that he would state such fact, if true,
may be shown to discredit his testimony as to such fact.” People v. Henry, 47 Ill. 2d 312, 320-21,
265 N.E.2d 876, 882 (1970); People v. Owens, 65 Ill. 2d 83, 357 N.E.2d 465 (1976); 3A
Wigmore on Evidence, §1042 at p.1058 (“the underlying test is, would it have been natural for
the person to make the assertion in question?”). The admissibility of impeachment evidence is a
matter within the sound discretion of the trial judge. People v. Baggett, 115 Ill. App. 3d 924,
934, 450 N.E.2d 913,920 (1983).
At trial, during direct examination, Adams implicated defendant as someone he previously
knew as “Peanut,” and the one who said, “shoot him, shoot him.” At the grand jury hearing,
Adams was asked to respond to specific questions from the State’s Attorney as follows:
“Q: And at the time did you see a person that you knew to be
Darryl Moten?
A: Yes, sir.
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Q: How long have you known Darryl Moten?
A: About a year and a half, since he got out of Audy Home.
Q: Was he alone or with other people?
A: With three more other guys.
Q: And when you first saw Mr. Moten, where were you?
A: Walking like right beside him, you know, walking from the store.”
It is evident from the grand jury testimony that Adams was never asked if he could identify the
names of the other people that were with Moten. Under such circumstances, in a question and
answer situation on the witness stand, it would not necessarily have been natural or probable for
Adams to volunteer defendant’s name or someone named “Peanut” in response to a specific
question on the stand about whether Moten was alone or with other people. See, e.g., People v.
Green, 118 Ill. App. 3d 227, 233-34, 454 N.E.2d 792, 797 (1983) (in question and answer
format, it would not have been natural or probable for witness to respond with information
concerning a second incident about which he was not questioned); see also Strino v. Premier
Healthcare Associates, P.C., 365 Ill. App. 3d 895, 850 N.E.2d 221 (2006) (trial court did not
abuse its discretion in holding that trial testimony was not impeachable with deposition testimony
where witness was not asked questions in the deposition that would have naturally elicited that
information). Indeed, when Adams was asked whether he was alone or with others, he did not
identify Thompson by name even though he knew his own friend’s name but, rather, replied that
he was “with a friend, sir.”
Given the nature of the questioning here before a grand jury, where there was no
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opportunity for a narrative, the trial court would have been well within its discretion in finding
that Adam’s failure to volunteer this information was not unnatural and, therefore, in finding that
impeachment on that basis was inadmissible. Under that scenario, defendant would have
benefitted from Swano’s stipulation regarding the absence of Adam’s identification of defendant
in his grand jury testimony.
Defendant cites to Carroll v. Krause, 295 Ill. App. 552, 15 N.E.2d 323 (1938) for the
proposition that to be relevant, it need not be shown that the “fact” at issue in the proffered
impeachment was the subject of “specific[] interrogat[ion]” in the prior proceeding. Carroll, 295
Ill. App. 552, 15 N.E.2d at 328. Nevertheless, even if it was admissible as impeachment, it would
have had little, if any, more weight than the stipulation that was ultimately entered on defendant’s
behalf. When assessing the importance of the failure to impeach for purposes of a Strickland
claim, “[t]he value of the potentially impeaching material must be placed in perspective.” People
v. Jimerson, 127 Ill.2d 12, 33, 535 N.E.2d 889, 898 (1989).
The stipulation entered into evidence was that Adams never identified defendant before
the grand jury. The postconviction court found that the stipulation was inadequate because the
trial court indicated that the stipulation lacked context. However, even if the trial court were
given the context, meaning the questions asked and Adams’ answers before the grand jury, the
weight of the impeachment would not have been any greater. Adams was never asked the
relevant questions that would have elicited an identification of defendant during the questioning
about Moten. Accordingly, defendant failed to meet his burden to establish under Strickland that
he was prejudiced by Swano’s use of the stipulation to impeach Adams’ trial testimony instead of
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cross-examining Adams with his grand jury testimony. The postconviction court’s determination
that defendant was ultimately prejudiced was against the manifest weight of the evidence.
Furthermore, although in convicting defendant, the trial court found that Thompson’s
testimony at the grand jury and statement to police were insufficient alone to convict him, the trial
court reconsidered the weight of Thompson’s evidence during a hearing on defendant’s post-trial
motion. Therein, the court made the following statement:
“And I tell you, Thompson’s out-of court statements taken alone
perhaps originally were not that impressive as evidence, but when
you corroborate by the statements he made on the eve of trial, eve
of his testimony, to me at least, the evidence becomes more
impressive.”
Subsequently, on direct appeal, in considering the sufficiency of the evidence to convict
defendant, this court noted that “the court could have found [defendant] guilty solely on the
eyewitness testimony of [Thompson], notwithstanding that such testimony occurred in another
proceeding, to wit: before the grand jury.” People v. Bailey, 265 Ill. App. 3d 262, 277, 638
N.E.2d 192, 202 (1994). Thus, even if Adams’ grand jury testimony was utilized instead of the
stipulation, its impeachment value was minimal where Thompson’s testimony alone would have
been a sufficient basis to convict defendant. For all of the foregoing reasons, the postconviction
court erred in finding that defendant met his burden of proof to establish that Swano’s delay in
obtaining Adams’ grand jury testimony ultimately prejudiced him. It cannot be said that there
would have been a reasonable probability that the outcome of the trial would have been different.
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We next address the State’s contention that the postconviction court erred in finding that
Swano’s performance was tainted by a conflict of interest based upon his representation of both
defendants. A defendant’s sixth amendment right to effective assistance of counsel includes the
right to conflict-free representation. People v. Hardin, 217 Ill. 2d 289, 299, 840 N.E.2d 1205
(2005). The prohibition against conflicts is based upon the notion that no attorney can “serve two
masters.” People v. Spreitzer, 123 Ill. 2d 1, 13, 525 N.E.2d 30, 34 (1988).
Nevertheless, “the mere fact of joint representation of multiple criminal defendants does
not establish a per se violation of the right to effective counsel.” People v. Orange, 168 Ill. 2d
138, 156, 659 N.E.2d 935, 943 (1995), citing Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.
Ct. 1173, 1178, 55 L. Ed. 2d 426, 433 (1978). “Treating multiple representation as creating a per
se conflict would put an end to multiple representation altogether, since a ‘possible conflict
inheres in almost every instance of multiple representation,’ and a per se rule would ‘preclude
multiple representation even in cases where ‘[a] common defense * * * gives strength against a
common attack.’ ” Spreitzer, 123 Ill. 2d at 17, 525 N.E.2d at 36, quoting Cuyler v. Sullivan, 446
U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 346, quoting Glasser v. United States , 315
U.S. 60, 92, 62 S. Ct. 457, 475, 86 L. Ed. 680, 710-11 (1942) (Frankfurter, J., dissenting).
A defendant may establish a violation of his right to effective assistance of counsel by
showing an actual conflict of interest manifested at trial that adversely affected his counsel’s
performance. People v. Morales, 209 Ill. 2d 340, 348, 808 N.E.2d 510, 514-15 (2004). To
establish a conflict, the defendant has the burden of showing “ ‘some specific defect in his
counsel’s strategy, tactics, or decision making attributable to [a] conflict.’ ” Morales, 209 Ill. 2d
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at 348, 808 N.E.2d at 514-15, quoting People v. Spreitzer, 123 Ill. 2d at 18, 525 N.E.2d at 37. If
an actual conflict has been shown, a defendant need not demonstrate prejudice in order to obtain
relief. People v. Nelson, 82 Ill. 2d 67, 72, 411 N.E.2d 261, 264 (1980). However, mere
speculative or hypothetical conflicts are insufficient to demonstrate [an] actual conflict of interest.
People v. Berland, 74 Ill. 2d 286, 301, 384 N.E.2d 649, 655 (1978). In addition, “the mere
availability of a strategy that would have helped one criminal codefendant at the expense of
another does not create hostility between their interests.” People v. Mahaffey, 165 Ill. 2d 445,
457, 651 N.E.2d 174, 181 (1995).
Here, the postconviction court premised its holding on a conflict of interest which arose
from the grand jury testimony of Adams because Adams only implicated Moten and not
defendant. The court held that Swano was ineffective in failing to recognize that he would have
to challenge Adams’ grand jury testimony in order to protect Moten, and in failing to obtain a
proper waiver from defendant at that time. Nevertheless, the postconviction court did not
articulate how the grand jury testimony of Adams actually adversely affected Swano’s
representation of defendant at trial.
The record does not support an actual conflict. Defendant maintains that if Swano had
highlighted Adams’ failure to identify defendant before the grand jury, Swano would have
inevitably have also highlighted that Adams had identified Moten before the grand jury. However,
Adams’ grand jury testimony implicating Moten would not have been admitted as substantive
evidence. People v. Olinger, 176 Ill. 2d 326, 360, 680 N.E.2d 321, 338 (1997). In a bench trial,
if the court has admitted evidence for a limited purpose, the court is presumed to only have
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considered it for that purpose. People v. Jackson, 202 Ill. 2d 361, 369, 781 N.E.2d 278, 282
(2002). Thus, even if Adams’ omission was admissible as impeachment, it would not have been
considered as substantive evidence against Moten. Indeed, by entering the stipulation, Swano
was able to avoid any possibility that Adams’ testimony regarding Moten would be used in an
improper way. Moreover, defendant’s argument merely suggests a possible conflict relating to
Swano’s representation of Moten, who is not a party to this appeal. Ultimately, both defendants
pursued a united, reasonable doubt defense. Their defenses were not antagonistic. Accordingly,
it was error for the postconviction court to grant defendant a new trial based upon a potential
conflict of interest that never materialized into an actual conflict at trial.
Moreover, we reject defendant’s argument that a conflict arose because Swano failed to
use Adams’ failure to identify defendant before the grand jury in his closing argument because it
would have also highlighted that Adams had identified Moten before the grand jury. Contrary to
defendant’s assertion, Swano indeed argued in closing argument Adams’ failure to identify
defendant before the grand jury and during his interview with Detective Kelly.
“Now, you have heard by way of stipulation the testimony of
Detective Kelly and the Grand Jury testimony in which at no time
did Mr. Torrence Adams ever tell Detective Kelly or the Grand Jury
that he saw [defendant] or a person by the name of Peanut in the
vicinity or say “‘shoot, shoot.’”
Swano specifically broke down the testimony of both Thompson and Adams to show how they
were both impeached. Accordingly, because the record does not support that an actual conflict of
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interest arose, it was error for the postconviction court to grand defendant a new trial. Based
upon our disposition, we need not address the State’s additional arguments. For all of the
foregoing reasons, we reverse the judgment of the circuit court.
Reversed.
GREIMAN and CUNNINGHAM, JJ., concur.
- 24 - REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellant,
v.
HERNANDEZ BAILEY,
Defendant-Appellee. ________________________________________________________________
No. 1-04-3835
Appellate Court of Illinois First District, Third Division
Filed: June 29, 2007 _________________________________________________________________
PRESIDING JUSTICE THEIS delivered the opinion of the court.
Greiman and Cunningham, JJ., concur. _________________________________________________________________
Appeal from the Circuit Court of Cook County Honorable James R. Epstein, Judge Presiding _________________________________________________________________
For PLAINTIFF - Richard A. Devine, State’s Attorney APPELLANT James E. Fitzgerald, Assistant State’s Attorney Annette Collins, Assistant State’s Attorney Brad Dickey, Assistant State’s Attorney 300 Daley Center Chicago, IL 60602
For DEFENDANT - Richard H. McLeese APPELLEE 900 West Jackson Blvd. Suite #6W Chicago, IL 60607
25 1-04-3835
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