People v. West

SECOND DIVISION
July 14, 1998

No. 1-97-0896

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
KEITH WEST, ) Honorable
) Thomas M. Davy,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

After a bench trial defendant Keith West was found guilty of
possession of a stolen motor vehicle and unlawful use of a weapon by
a felon. He was sentenced to seven years' imprisonment for
possession of a stolen motor vehicle and four concurrent years for
unlawful use of a weapon. Defendant appeals, claiming that: (1) he
was not proven guilty beyond a reasonable doubt of unlawful use of
a weapon by a felon; (2) the trial court improperly prevented
defendant from bringing in certain defense witnesses to testify at
trial and trial counsel was ineffective in failing to produce these
witnesses at trial; and (3) a per se conflict of interest existed
since during trial defense counsel was in the midst of surrendering
his license to the Attorney Registration and Disciplinary
Commission. We affirm.
Howard Melton testified that on January 13, 1996, he parked his
four-door burgundy Cadillac, bearing license plate ELE 4, in front
of his apartment on 72nd Street, in Chicago. The next morning,
Melton discovered that his car was missing. He noticed broken glass
on the ground where the car had been parked. He called the police
to report that his Cadillac had been stolen. Melton testified that
no one else had keys to the vehicle or permission to possess the
Cadillac. He testified that on January 13, the car doors were
locked and the car was not damaged.
Melton testified that on January 17, 1996, he recovered his
Cadillac from the police impoundment lot. Melton observed that the
Cadillac had been severely damaged since he last saw it on January
13, 1996. The right passenger side door had dent marks, the small
driver's side window had been smashed, the glove compartment had
been forced open and items were missing from it, the trunk had been
forced open and two new tires were missing.
Officer Tom Shannon testified that on January 17, 1996, he was
working in the area of 7900 South Exchange Street in Chicago with
his partner, Officer Ratajack. At approximately 5 p.m. as Officer
Shannon was driving northbound on Exchange, he observed an older
model four-door Cadillac with high-beam headlights and a broken
window going southbound on Exchange. Officer Shannon turned his car
and started following the Cadillac southbound. Officer Shannon
spotted the license plate on the rear of the Cadillac and called in
to check the plate. After the dispatcher informed him that the
Cadillac had been stolen, Officer Shannon activated his emergency
lights and sirens and attempted to stop the vehicle.
Defendant, driving the vehicle, did not stop. Officer Shannon
testified that he pursued the vehicle for approximately six blocks,
remaining in radio communication with other police units, until
defendant suddenly stopped in the vicinity of 7920 Burnham Street
and fled from the Cadillac. Officer Shannon, a few feet behind the
stopped Cadillac, observed defendant running away and began to chase
him. As defendant ran westbound through some gangways, Officer
Shannon noticed defendant had a handgun in his right hand. Officer
Shannon radioed directions to other police units.
Defendant continued to flee, running through an alley and
another set of gangways to Manistee Street, where he ultimately ran
into a police unit waiting for him at that location. As Officer
O'Callahan put defendant down on the car, the handgun was loosened
from defendant's hand. Officer Shannon recovered the handgun.
During trial, Officer Shannon was shown and identified a Raven
Arms semi-automatic .25-caliber handgun, its magazine, and six .25-
caliber hollow-point bullets. Officer Shannon also testified that
photographs shown marked as People's exhibit No. 1, depicting the
vehicle with a broken opera window and a peeled steering column,
showed the vehicle in the same condition as when he saw it on
January 17. Officer Shannon also testified that there were no keys
in the ignition of the vehicle when he saw it on January 17.
The State moved to admit into evidence a certified statement
from the Illinois Department of Corrections (IDOC) for burglary case
No. 94 R 556601, for Todd McGlynn, which the State claimed was
defendant's alias. Attached to the certification was a photograph,
a photocopy of the order of sentencing and commitment to the IDOC
for Todd McGlynn and photocopies of fingerprints. Defendant
objected on the basis that no link had been established between Todd
McGlynn and defendant and because the IDOC records were not public
records. The trial court allowed into evidence the mittimus from
the circuit court of Cook County, the certified statements of
conviction, the photograph and the fingerprints, subject to any
other evidence the State might have to tie them to the conviction.

Mattie L. West, defendant's mother, testified that defendant
was left-handed and she never saw him with a gun. West testified
that on January 20, 1996, Monique Mahaffery stopped at her house to
visit. Someone named Maurice waited in the car.
Defendant testified that at approximately 4:30 p.m. on January
17, 1996, Maurice Johnson came to visit him at his apartment at 7949
South Marquette in Chicago. Defendant stated that Maurice was
driving a 1984 Cadillac Sedan DeVille. Defendant stated that he had
known Maurice for about eight months, but had never seen this car in
Maurice's possession prior to January 17, and he did not know
whether Maurice actually owned the Cadillac. Defendant asked to
borrow the Cadillac so that he could pick up his girlfriend,
Michaelene Mahaffery, from the bus stop. Defendant testified that
Maurice allowed defendant to borrow the car and gave him the keys.
Defendant testified that the interior of the car was clean and the
only damage was a cracked rear opera window. Defendant testified
that the damage to the car, shown in People's exhibit No. 1, did not
exist at the time that he was in the car.
Defendant testified that he drove northbound on Marquette and
then proceeded southbound on Exchange. As he was driving southbound
on Exchange, between 77th and 79th, he was unable to see the
northbound lane because the train platform extended to the corner of
77th Street. Defendant further stated that he would be unable to
turn his vehicle anywhere between 77th and 79th on Exchange because
of the train platform. Defendant stated that he drove to the bus
stop where he was supposed to pick up his girlfriend; however, she
was not there, so he proceeded to go westbound on 79th Street and
then made a left turn on Manistee Street to Burnham Street.
Defendant went to his girlfriend's house at 7924 South Burnham.
Defendant testified that after he parked the car and started
approaching the fence surrounding the apartment complex, he heard
two voices behind and to the left of him. A male voice said, "Don't
move," and a female voice said, "Nigger, I'll shoot you." Defendant
stated that he never saw who was speaking, because he "took off,
afraid for [his] life." Defendant ran until he encountered a police
officer standing on Manistee Street. Defendant stated that he asked
the officer for assistance, but, as the officer was helping him, a
male and female officer approached them and stated, "That's him,
that's him." Defendant testified that he was then slammed face down
on the car, roughed up to the point where his left thumb was broken,
handcuffed and placed in a vehicle. Defendant denied being in
possession of a gun and denied knowing that the car was stolen.
At the conclusion of this evidence, defendant was found guilty
of possessing a stolen motor vehicle and of unlawful use of a weapon
by a felon, and sentenced to seven years in prison on the first
count and four years on the second count, the sentences to run
concurrently.
Defendant first claims that he was not proven guilty beyond a
reasonable doubt of unlawful use of a weapon since the State failed
to prove that he had a prior felony conviction. A conviction of
unlawful possession of a weapon by a felon requires proof beyond a
reasonable doubt of the defendant's prior felony conviction. 720
ILCS 5/24-1.1 (West 1994). A certified copy of the defendant's
conviction may be offered as proof of an underlying conviction, and
if the name on the certified record is the same as the name of the
defendant on trial, a rebuttable presumption of identity arises.
People v. Davis, 95 Ill. 2d 1, 447 N.E.2d 353 (1983). Where the
presumption is not rebutted, a defendant is not prejudiced by
finding that a certified copy of his prior conviction, without more,
meets the State's burden of proving this element beyond a reasonable
doubt. People v. Smith, 148 Ill. 2d 454, 593 N.E.2d 533 (1992). If
the presumption does not apply or is rebutted, other evidence must
be adduced to substantiate that the defendant is the person named in
the record of conviction. People v. Moton, 277 Ill. App. 3d 1010,
661 N.E.2d 1176 (1996).
The State in the instant case moved to admit a certified
statement of conviction for burglary case No. 94 CR 556601, for Todd
McGlynn, which the State claimed was defendant's alias. The State
moved to admit a certified public record from the IDOC which stated:
"I Marie Velles Carlson, Executive to Record Office,
Statesville Correctional Center, do hereby affirm the
attached foregoing is a true and accurate copy of
fingerprints, photos and mittimus' from the master file of
inmate McGlynn."
Attached to the certification was a photograph of Todd McGlynn and
inmate number B57079, a photocopy of the sentencing and commitment
to the IDOC for Todd McGlynn and a photocopy of fingerprints.

Defense counsel objected to the admission of the documents,
claiming that the IDOC records were not public records as set forth
in section 3-5-1 of the Unified Code of Corrections (730 ILCS 5/3-5-
1 (West 1996)). However, the trial court stated that IDOC kept
public records and that the sole purpose of the documents that the
State sought to admit was to link the conviction of Todd McGlynn
with defendant. The trial court thus admitted "the photograph, the
copy of the order of sentencing commitment to the Department of
Corrections, the fingerprint, subject to any other evidence that the
State might have to tie them up and the certification."
Defendant claims that the photograph was inadmissible hearsay
since section 3-5-1 of the Unified Code of Corrections does not
mention photographs in the IDOC master file comprising the public
record. The master record file is a public record and thus may be
admitted under an exception to the hearsay rule. People v. Kautz,
272 Ill. App. 3d 444, 651 N.E.2d 772 (1995). While section 3-5-1
does not specifically mention photographs as being included in the
master record, it does state that "all information from the
committing court" is included. 730 ILCS 3-5-1(a)(1) (West 1996).
We therefore find that the photographs were properly admitted under
the public records exception to the hearsay rule.
We next consider whether these photographs were sufficient to
find Todd McGlynn and defendant to be the same person. While we
have found no Illinois cases addressing this issue, we are persuaded
by the following cases from other jurisdictions. In State v.
Nylon, 563 S.W.2d 540 (Mo. Ct. App. 1978), a photograph was
included with the record of the conviction L.W. Brown. The
Missouri Court of Appeals assumed that the trial court compared the
photograph of Brown with defendant, Johnny Nylon, and determined
that they were one and the same. The court found this comparison
sufficient evidence to conclude that Johnny Nylon and L.W. Brown
were the same person. See also Williams v. State, 946 S.W.2d 886
(Tex. Ct. App. 1997)(Texas Court of Appeals found that photographs
made available to the jury for comparison with the accused provided
independent evidence necessary to prove the accused was previously
convicted). We too find that the trial court, in comparing the
photograph of Todd McGlynn with defendant, had sufficient basis to
determine that defendant had been previously convicted under the
name Todd McGlynn.
Defendant next contends that the trial court erred in not
compelling the sheriff to execute bench warrants issued for three
defense witnesses and that his counsel was ineffective by not
supplying information to the trial court regarding these witnesses.
Defense counsel issued subpoenas for three witnesses who failed to
appear in court. Defense counsel requested that warrants be issued
by the trial court to compel the witnesses to appear. Defense
counsel also requested and was granted several continuances in order
to get the witnesses into court. The trial court issued warrants,
but never compelled the sheriff to execute them, and the trial
proceeded without the witnesses.
Although defendant claims that the testimony of Monique
McHaffey, Annette Williams, and Rachel William was crucial to his
defense, defendant failed to make an offer of proof stating what the
excluded testimony would reveal. As such, defendant has waived this
issue for the purposes of review. People v. Andrews, 146 Ill. 2d 413, 588 N.E.2d 1126 (1992).
Moreover, we do not find defense counsel's failure to supply
the court with information about these witnesses so that a warrant
could be issued for their arrest to constitute ineffective
assistance of counsel. A conviction will not be reversed for
ineffective assistance of counsel unless the defendant shows that
his counsel's performance was so deficient that it fell below the
objective standard of reasonableness and that his counsel's
performance so prejudiced his defense as to deny him a fair trial.
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The testimony at trial gives us no reason to believe
that these witnesses were crucial to defendant's defense or would
have had any impact on the result of the trial. Defendant testified
that he thought the car belonged to a friend, Maurice, that the car
was in good condition when he borrowed it, and that he had no
knowledge the car was stolen. However, Officer Shannon testified
and introduced photographs showing that the car was heavily damaged
when defendant was stopped. The steering wheel was peeled, there
were no keys in the ignition, the interior of the car was damaged
and the side window was broken. Officer Shannon testified that
defendant had a gun with him when he was stopped. This evidence
clearly demonstrated that defendant was guilty of possession of a
stolen vehicle and unlawful use of a weapon by a felon. The three
witnesses defendant claims were so crucial to his defense were never
mentioned by defendant during his testimony. Thus, we do not see
how their testimony could have been so important as to affect the
outcome of defendant's trial.
Defendant's final contention is that he was denied his right
to effective assistance of counsel since defense counsel Jeffery
Gehl represented him while in the midst of surrendering his license
to the Attorney Registration and Disciplinary Commission (ARDC).
The record reveals that on September 23, 1996, Gehl filed a motion
asking the Supreme Court of Illinois that his license to practice
law be stricken from the rolls of Illinois. Defendant's case went
to trial on November 8, 1996, and defendant was found guilty on that
date. On November 26, 1996, the supreme court granted Gehl's motion
to strike his name from the roll of attorneys. Defendant claims
that the fact that disciplinary proceedings were pending against
Gehl and he was in the process of surrendering his law license at
the time of defendant's trial reveals a per se conflict of interest,
resulting in defendant's receiving per se ineffective assistance of
counsel.
A per se conflict of interest exists when the defense counsel
has a tie to a person or entity that would benefit from an
unfavorable verdict to the defendant. People v. Massa, 271 Ill.
App. 3d 75, 648 N.E.2d 123 (1995). Generally, per se conflicts are
created by defendant counsel's prior or contemporaneous association
with the prosecution witnesses or the victim. People v. Spreitzer,
123 Ill. 2d 1, 525 N.E.2d 30 (1988).
That defense attorney has disciplinary proceedings pending
during his representation of a defendant does not automatically
dictate the conclusion that defendant is entitled to a new trial for
ineffective assistance of counsel. People v. Szabo, 144 Ill. 2d 525, 582 N.E.2d 173 (1991)(supreme court declined to create a per
se conflict of interest rule where attorney represented criminal
defendant while disciplinary action by the ARDC was pending);
People v. Allen, 220 Ill. App. 3d 772, 580 N.E.2d 1291 (1991). The
mere fact that an attorney may have been distracted by his pending
suspension does not rise to the level of per se conflict of
interest. Allen, 220 Ill. App. 3d at 784. Rather, whether a
lawyer's services constituted ineffective assistance of counsel
should be considered on a case-by-case basis and in light of the
standard set forth in Strickland. Allen, 220 Ill. App. 3d at 782-
83; People v. Perry, 183 Ill. App. 3d 534, 540 N.E.2d 379 (1989).
In order to show that he received ineffective assistance of
counsel, defendant must therefore point to facts revealing that his
counsel's performance was so deficient that it fell below the
objective standard of reasonableness and that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). Defendant claims that Gehl's incompetence was shown by his
abandonment of compelling the appearance of missing witnesses and
his repeated failure to appear in court. The trial court found that
defendant was not denied effective assistance of counsel since none
of the matters alleged in the disciplinary charges involved
defendant's case, defense counsel vigorously represented defendant
and made numerous attempts to locate witnesses, and the evidence
clearly shows defendant's guilt. Our review of the record reveals
no persuasive reason for us to reach a different conclusion.
Accordingly, for the reasons set forth above, defendant s
conviction is affirmed.
Affirmed.
RAKOWSKI and COUSINS, JJ., concur.