People v. Merritte

2020 IL App (3d) 190100-U

• Court: Appellate Court of Illinois
• Decided: May 1, 2020
• Docket: 3-19-0100
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

2020 IL App (3d) 190100-U

Order filed May 1, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0100 v. ) Circuit No. 15-CF-28 ) CLARENCE MERRITTE, ) Honorable ) Cynthia M. Raccuglia, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court. Justices Schmidt and Wright concurred in the judgment.

ORDER

¶1 Held: Defense counsel did not labor under a per se conflict of interest when he represented defendant on charges of aggravated battery.

¶2 Defendant, Clarence Merritte, appeals his conviction for aggravated battery. Defendant

argues that his conviction must be reversed because defense counsel labored under a per se

conflict of interest by representing both defendant and a purported victim. We affirm.

¶3 I. BACKGROUND ¶4 Defendant was charged with two counts of aggravated battery (720 ILCS 5/12-3.05(c),

(f)(1) (West 2014)) for striking Brandon Nighswonger with his fists and a pool cue. The incident

occurred on October 17, 2014. An additional charge for driving while his license was revoked

(625 ILCS 5/6-303(a), (d-2) (West 2016)) was later added. The third charge involved an incident

that occurred approximately 18 months after the first incident. Defendant retained attorney

Charles Snowden to represent him.

¶5 Defendant was later charged with aggravated assault (720 ILCS 5/12-2(c)(7) (West

2016)), unlawful restraint (id. § 10-3(a)), domestic battery (id. § 12-3.2(a)(1)), and driving while

his license was revoked (625 ILCS 5/6-303(a), (d-2) (West 2016)). These charges stemmed from

a third incident that occurred on February 17, 2017, while defendant was released on bail. The

indictment stated that Devita Durando was the victim of the aggravated assault charge, and

Kayla Stratton was the victim of the unlawful restraint and domestic battery charges.

¶6 The State filed a motion to disqualify Snowden as defendant’s attorney because Snowden

was contemporaneously representing Stratton. The motion stated that Snowden accompanied

Stratton when she was called to testify before a grand jury and identified himself as her attorney

to an assistant state’s attorney. Snowden and the assistant state’s attorney had a discussion

regarding Stratton giving a statement to the sheriff’s office. Stratton also indicated that Snowden

was her attorney concerning a case opened by the Department of Child and Family Services.

¶7 Defendant filed a response requesting that the court deny the State’s motion. The

response stated that Snowden was no longer representing Stratton because she was not being

charged with any offense. The motion stated that Stratton had indicated that they would waive

any possible conflict and that defendant would do the same.

2 ¶8 A hearing was held on the State’s motion to disqualify Snowden. Defendant was

personally present at the hearing. The State argued that Snowden had contemporaneously

represented defendant and Stratton, a prosecution witness. The State argued that this created a

conflict for representing defendant going forward. Snowden argued that there was no per se

conflict unless he contemporaneously represented defendant and Stratton at the time of

defendant’s trial. Snowden maintained that he no longer represented Stratton.

¶9 The court found that a per se conflict of interest existed regarding the charges involving

the incident on February 17, 2017. The court ruled that Snowden would have to disqualify

himself from representing defendant on those charges, but he could continue to represent

defendant on the other charges. The court asked defendant if he wished to hire private counsel to

represent him on the charges involving Stratton, and defendant said yes. Defendant hired

attorney Matthew Mueller to represent him on those charges.

¶ 10 On July 5, 2017, a bench trial was held on the two aggravated battery charges concerning

Brandon. Snowden represented defendant at the trial. The evidence at the trial tended to show

that defendant and several other individuals got into an altercation with Brandon and Logan

Nighswonger at a bar. They struck Brandon in the head with their fists and a pool cue. Brandon

suffered several lacerations to his head and had memory problems after the incident. Brandon,

Logan, and two police officers testified for the State. Curtis Dawson testified for the defense.

The court found defendant guilty of both charges and sentenced him to five years’ imprisonment

on one of the aggravated battery counts. The other count merged.

¶ 11 On October 20, 2017, defendant entered into a plea deal regarding the remaining charges.

Mueller represented him during the plea hearing. Pursuant to the agreement, defendant pled

guilty to aggravated assault and one count of driving while his license was revoked, and the State

3 dismissed the remaining charges. As a factual basis for the plea, the prosecutor stated that

Durando would testify that she was driving her vehicle on the date of the incident. Defendant got

into an argument with a passenger in her vehicle, and he chased Durando’s vehicle with his

vehicle. Defendant struck Durando’s vehicle, causing it to become nonfunctional. At the time of

the incident, defendant’s license was revoked because he had a prior conviction for driving while

under the influence of alcohol. Defendant received concurrent sentences of one year of

imprisonment on each count.

¶ 12 II. ANALYSIS

¶ 13 Defendant argues that his conviction for aggravated battery should be reversed and the

matter should be remanded for a new trial because Snowden labored under a per se conflict of

interest by representing Stratton, one of defendant’s victims. Defendant argues that the court did

not cure the per se conflict of interest by only removing Snowden from representing defendant

on the charges related to Stratton. Defendant notes that he did not make an informed and

voluntary waiver of his right to conflict-free counsel. We find that Snowden did not labor under

a per se conflict of interest because Stratton was not the victim of the aggravated battery charges

nor was she involved in the incident giving rise to those charges.

¶ 14 “A criminal defendant’s sixth amendment right to effective assistance of counsel includes

the right to conflict-free representation.” People v. Hernandez, 231 Ill. 2d 134, 142 (2008). A

defense attorney has a per se conflict of interest when “ ‘facts about a defense attorney’s status

*** engender, by themselves, a disabling conflict.’ ” (Emphasis in original.) People v. Morales,

209 Ill. 2d 340, 346 (2004) (quoting People v. Spreitzer, 123 Ill. 2d 1, 14 (1988)). In such

instances, “counsel’s knowledge that a result favorable to his other client or association would

inevitably conflict with defendant’s interest ‘might “subliminally” affect counsel’s performance

4 in ways [that are] difficult to detect and demonstrate.’ ” Hernandez, 231 Ill. 2d at 143 (quoting

Spreitzer, 123 Ill. 2d at 16).

¶ 15 Our supreme court has held that a per se conflict of interest exists: “(1) where defense

counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity

assisting the prosecution; (2) where defense counsel contemporaneously represents a prosecution

witness; and (3) where defense counsel was a former prosecutor who had been personally

involved with the prosecution of defendant.” People v. Fields, 2012 IL 112438, ¶ 18. If a per se

conflict is found to exist, it is not necessary for the defendant to show that the conflict affected

the attorney’s performance. Id. Rather, a per se conflict is grounds for automatic reversal unless

the defendant has waived the conflict. Id.

¶ 16 Here, defendant has not demonstrated that Snowden’s representation of Stratton created a

per se conflict of interest regarding the aggravated battery charges involving Brandon. Our

supreme court has held that a per se conflict of interest exists “where defense counsel has a prior

or contemporaneous association with the victim.” (Emphasis added.) Id. We believe that this

statement refers to the victim of the offense on which the attorney represents the defendant. This

interpretation is supported by the court’s discussion of per se conflicts in Hernandez. The

Hernandez court noted that it had “construed broadly the per se conflict rule when counsel

represents both the victim of defendant’s offense and the defendant himself.” (Emphasis added.)

Hernandez, 231 Ill. 2d at 151.

¶ 17 In the instant case, Stratton was not the victim of the aggravated battery charges on which

Snowden represented defendant. For all practical purposes, the aggravated battery charges were a

separate case from the charges relating to Stratton. Although the charges involving Stratton were

brought under the same case number as the aggravated battery charges, they involved a different

5 incident that occurred more than two years later than the bar fight giving rise to the aggravated

battery charges. The aggravated battery charges were tried separately from the charges relating to

Stratton. Under these circumstances, we do not believe that the rationale for per se conflicts of

interest applies.

¶ 18 We do not foreclose the possibility that, under different circumstances, defense counsel’s

representation of one victim would constitute a per se conflict of interest on charges concerning

a different victim. For example, if a defendant was charged with multiple offenses for injuring

multiple victims in the same incident or closely related incidents, an attorney’s representation of

one of the victims might constitute a per se conflict of interest as to all the charges against the

defendant. In the instant case, however, the incident giving rise to the aggravated battery charges

was completely separate from and unrelated to the incident giving rise to the charges relating to

Stratton.

¶ 19 We reject defendant’s reliance on People v. Arreguin, 92 Ill. App. 3d 899 (1981). In

Arreguin, the defendant was convicted of criminal damage to property. Id. at 900. Defense

counsel’s law firm was also retained by a hospital that was the victim in an unrelated case

pending against the defendant. Id. An official of the hospital testified against the defendant at the

sentencing hearing in the criminal damage to property case. Id. The Arreguin court held that a

per se conflict of interest existed based on defense counsel’s law firm’s ongoing representation

of the hospital. Id. at 902. The court held that the same reasoning that made it a per se conflict to

represent both the defendant and the victim with regard to the same offense applied to that case.

Id. The court reasoned:

“The tactical decisions made by counsel may be subtly, even subconsciously

affected to the detriment of one client by counsel’s desire not to alienate another

6 client. Certainly such psychological influences may be present where counsel

represents a criminal defendant while engaged in the continuing representation of

another client whose interests have been violated at some earlier time by that

same defendant. Under these circumstances, the criminal defendant is denied the

unbiased, forceful representation guaranteed to him by the Constitution, and a

reversal of the defendant’s conviction is mandated without a showing of actual

prejudice.” Id.

¶ 20 This case is factually distinguishable from Arreguin because Snowden’s representation of

Stratton had ended prior to the time that defendant was tried and sentenced on the aggravated

battery charges. This distinction is significant because the Arreguin court’s justification for

extending the per se conflict rule to the representation of the victim of a different offense in an

unrelated case was based largely on “counsel’s desire not to alienate another client” and

counsel’s “continuing representation of another client whose interests have been violated at some

earlier time by that same defendant.” Id. Such reasoning does not apply where counsel no longer

represents the victim of a different offense.

¶ 21 Also, while the Arreguin court did not base its finding that a per se conflict of interest

existed solely on the fact that a hospital official testified at the defendant’s sentencing hearing, it

arguably could have done so. Our supreme court has recognized that the contemporaneous

representation of a defendant and a witness for the State constitutes a per se conflict of interest.

Fields, 2012 IL 112438, ¶ 20.

¶ 22 Because we have found that no per se conflict of interest existed, we need not address the

State’s argument that defendant has not shown that the alleged conflict adversely affected

7 Snowden’s representation, which it claims is required pursuant to the United States Supreme

Court’s holding in Mickens v. Taylor, 535 U.S. 162 (2002).

¶ 23 III. CONCLUSION

¶ 24 The judgment of the circuit court of La Salle County is affirmed.

¶ 25 Affirmed.