People v. Miller

490 N.E.2d 228, 141 Ill. App. 3d 423, 95 Ill. Dec. 755, 1986 Ill. App. LEXIS 1924
CourtAppellate Court of Illinois
DecidedMarch 5, 1986
DocketNo. 4—85—0311
StatusPublished
Cited by2 cases

This text of 490 N.E.2d 228 (People v. Miller) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Miller, 490 N.E.2d 228, 141 Ill. App. 3d 423, 95 Ill. Dec. 755, 1986 Ill. App. LEXIS 1924 (Ill. Ct. App. 1986).

Opinion

JUSTICE MORTHLAND

delivered the opinion of the court:

Charged by information with six counts of armed robbery in violation of section 18 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 2(a)), defendant by agreement in April of 1982 pleaded guilty to two counts, the remaining four counts against him were dismissed. The circuit court of Champaign County then sentenced defendant to concurrent 18-year terms of imprisonment.

On January 29, 1985, defendant filed a pro se petition for post-conviction relief, later amended by court-appointed counsel on March 14, 1985. The petition generally assailed the performance of the defendant’s appointed counsel at trial, Assistant Public Defender Michael Jones. The defendant cited counsel’s alleged failure to adequately prepare for trial; failure to advise defendant of the maximum sentence that could be imposed; failure to correct purported errors concerning defendant’s prior criminal record; failure to file appropriate pretrial motions; and failure to allow defendant to exercise his right of appeal. Defendant thus contended he was denied effective assistance of counsel, and requested that the guilty plea be vacated. After a hearing held April 30, 1985, the trial court denied defendant’s petition.

The gravamen of defendant’s argument on appeal is a point first raised in closing argument during the post-conviction relief hearing: that attorney Jones represented defendant even in light of a potential conflict of interest, where Jones was subject to “subtle influence[s]” which precluded his objective and vigorous representation. Indeed, this case involves an interesting coincidence. While employed in the public defender’s office, Jones participated in a “ride along” program with the Champaign police department to help understand police testimony. Once every four months, Jones would accompany police officers in a squad car for an evening. In January of 1984, the squad car Jones was riding in responded to a robbery in progress. The police arrived on the scene after the robbery, and no one was apprehended. However, Jones heard a description over the police radio of two men allegedly involved in the offense. One of those descriptions matched the defendant.

Because Jones was present at the scene of one of three armed robberies for which defendant was eventually charged, defendant argues on appeal that “subliminal forces,” however marginal or subtle, operated to affect counsel’s judgment and objectivity. Defendant asserts that Jones could have been called as a witness in the matter. Defendant further contends in his brief on appeal that he was entitled to vigorous representation here, but that such representation was diminished by the defense attorney’s “even minor involvement in the State’s business of gathering evidence ***.” Defendant concludes that counsel should have made a disclosure of the potential conflict in order to obtain a knowing waiver. As he failed to do so, defendant maintains his guilty plea should be vacated.

Defendant’s contentions are wholly without merit and purely conjectural. We find no conflict in the mere fortuitous happenstance that Jones was in a squad car which responded to one of the armed robberies with which the defendant was subsequently charged. No arrests were made that night; Jones did not observe anyone fleeing from the scene of the crime. The descriptions broadcast over the radio became part of the police record which any attorney would have access to. Further, we do not believe Jones could have been called as a witness for the State at trial, as defendant maintains. Jones was not listed as a prospective witness in the police report.

Rather, as part of his duties with the public defender’s office, Jones rode in a squad car one night pursuant to a program designed to aid in understanding police procedure, a laudable goal. In making attorneys employed in the public defender’s office more knowledgeable in this regard, the ultimate benefit of the program is conceivably better representation of clients. We should not strike down a prospective benefit by holding that a conflict of interest is inherent in accompanying police and coincidentally hearing a description matching a future client. Read too broadly, it would severely restrict the availability of such a program in smaller communities. We are also mindful that, where the facts do not establish a per se conflict of interest, it is for the defendant to show an actual conflict to obtain a new trial. (People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525.) Defendant has not done so here.

Nor are the cases cited by defendant persuasive. In People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569, the supreme court held that the defendant was prejudiced by a conflict of interest where his appointed counsel had appeared earlier in the same criminal proceeding on behalf of the State’s Attorney’s office. The court cited “inconsistent duties” thereby arising, a potential conflict of interest even though counsel’s actual representation of defendant exhibited due diligence, “subtle influences” acting on counsel and a “subconscious desire” to avoid an adversarial confrontation with his former co-workers or employer. These concerns, however, did not arise in the instant matter. Furthermore, People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, as relied upon by the defendant, is similarly unavailing. In that case, the court found a possible conflict of interest where defendant’s court-appointed counsel had previously represented both the jewelry store the defendant was accused of burglarizing and its owner. We find no such conflict here.

Next, we deal with defendant’s allegations of ineffective assistance of counsel raised both in the post-conviction petition and on appeal. As a perfunctory matter, we note the two-part test to determine whether counsel’s performance was so deficient as to deprive a defendant of his constitutional rights: (1) counsel’s performance was incompetent; and (2) but for counsel’s errors, the results probably would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005; People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777.) Ineffective assistance must also prejudice the defendant. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) Effective assistance means competent, though not perfect and successful, representation. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64.) The totality of circumstances must be con sidered (People v. Davis (1981), 103 Ill. App. 3d 792, 431 N.E.2d 1210

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Cite This Page — Counsel Stack

Bluebook (online)
490 N.E.2d 228, 141 Ill. App. 3d 423, 95 Ill. Dec. 755, 1986 Ill. App. LEXIS 1924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-miller-illappct-1986.