People v. Sanders
Annotate this Case
No. 3--96--0127
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 93--CF--688
)
ROBERT SANDERS, ) Honorable
) Daniel W. Gould,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
________________________________________________________________
Defendant Robert Sanders was convicted of armed violence,
unlawful possession of a controlled substance (cocaine), unlawful
possession of cannabis, unlawful use of a weapon and unlawful
possession of a firearm without a firearm owner's identification
card (720 ILCS 5/33A--2, 570/402(c), 550/4(a) and 5/24--1(a)(4),
430 ILCS 65/2 (West 1992)). He was subsequently sentenced to six
years' imprisonment. Defendant appeals, citing a conflict of
interest arose when the initial attorney assigned to his case, a
public defender, was later appointed State's Attorney. We
affirm.
FACTS
Defendant was arrested on October 6, 1993; he first appeared
in court pro se on October 7. The court set bail, appointed the
public defender to represent defendant and set the cause for
arraignment. On October 12, Public Defender William O. Schmidt
assigned the case to his assistant, Michael J. Kick. At the
arraignment on October 26, a private attorney, Sherri Carr,
entered her appearance. Kick did not appear, and the office of
the public defender was discharged. The State served its first
discovery on attorney Carr.
On March 17, 1994, another private attorney, Leonard Sacks,
substituted for Carr. Sacks continued to represent defendant
throughout the remainder of the trial court proceedings.
Defendant was convicted on all counts on January 5, 1996.
In the meantime, on September 1, 1995, Kick became Kankakee
County State's Attorney. As of October 2, 1995, notices and
pleadings from the prosecutor's office had Kick's name listed as
State's Attorney. Nevertheless, the record shows that Assistant
State's Attorney John Kezdy was the sole member of the State's
Attorney's office prosecuting the case after June 20, 1995.
DISCUSSION AND ANALYSIS
On appeal, defendant argues that Kick's roles as State's
Attorney and defense counsel in the same case created a per se
conflict of interest and rendered defendant's trial unfair. We
disagree.
1. Conflicts of Interest
A brief overview of applicable law is necessary to our
analysis. In People v. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30
(1988), our supreme court explained the differences between per
se conflicts of interest and actual conflicts.
a. Per Se Conflicts
A per se conflict arises when defense counsel has some tie
to a person or entity which would benefit from a verdict
unfavorable to the defendant. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Our supreme court has determined that a conflict was
per se disabling when counsel has had a prior or contemporaneous
association with the prosecution or the victim. See, e.g.,
People v. Washington, 101 Ill. 2d 104, 461 N.E.2d 393 (1984)
(defense counsel simultaneously represented municipality where
defendant was prosecuted); People v. Fife, 76 Ill. 2d 418, 392 N.E.2d 1345 (1979) (defense counsel simultaneously served as
part-time assistant Attorney General representing State); People
v. Coslet, 67 Ill. 2d 127, 364 N.E.2d 67 (1977) (defense counsel
simultaneously represented administrator of victim's estate);
People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569 (1977) (defense
counsel formerly appeared as assistant State's Attorney in
defendant's case); People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441 (1968) (defense counsel's firm simultaneously represented
defendant and burglary victim).
When a per se conflict exists, a defendant may expressly
waive his attorney's conflict. However, he is not deemed to have
waived the issue by his silence at trial. See Fife, 76 Ill. 2d 418, 392 N.E.2d 1345. Prejudice is presumed, and the defendant
need not show that his attorney's performance was in any way
affected by the conflict in order to obtain a reversal of his
conviction. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30.
b. Actual Conflicts
In cases involving "actual" conflicts of interest which are
not per se disabling, either the conflict must be timely brought
to the attention of the trial court, or, on appeal, defendant
must show actual prejudice. See, e.g., Spreitzer, 123 Ill. 2d 1,
18, 525 N.E.2d 30, ___ (relief denied where former assistant
State's Attorney's appointment as public defender during
prosecution of defendant's case was not brought to trial court's
attention and no prejudice was shown); People v. Price, 196 Ill.
App. 3d 321, 553 N.E.2d 760 (1990) (retrial denied where
defendant waited until after sentencing to inform trial court
that newly elected State's Attorney appeared once on defendant's
behalf as assistant public defender and failed to show prejudice
on appeal); see also People v. Hernandez, 246 Ill. App. 3d 243,
615 N.E.2d 843 (1993). Where a timely objection is raised in the
trial court, the court is required to replace the conflicted
attorney or obtain the defendant's express waiver of the conflict
if there is even an appearance of impropriety. See, e.g., People
v. Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521 (1997). If
the issue is not raised at trial, it is deemed waived.
If the actual conflict is waived at trial, then, in order to
obtain reversal on appeal, the defendant must demonstrate that
there was prejudice at trial: i.e., special circumstances
engendering an actual conflict adversely affecting the
defendant's right to a fair trial. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Prejudice is shown if there is a possibility that a
defendant's former counsel divulged or used confidential
information in the prosecution of the defendant's case. See
People v. Price, 196 Ill. App. 3d 321, 553 N.E.2d 760 (1990); see
also Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521.
2. Kick's Alleged Conflict of Interest
The conflict in this case was not per se; Kick's position as
State's Attorney was neither prior to nor contemporaneous with
his defense of the cause. See Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Further, prior to this appeal, defendant neither
indicated that a conflict of interest existed nor requested that
a special prosecutor be appointed. In this respect, the alleged
conflict is distinguishable from that presented in Courtney.
In Courtney, Kick actively represented the defendant before
he was appointed State's Attorney and his conflict of interest
was raised repeatedly in the trial court. Although the State
initially advised the court that an assistant Attorney General
would take over prosecution of the case, it was ultimately
handled by Kick's office. Under these circumstances, we ruled
that no further evidence of prejudice was required to entitle
defendant to a new trial with a special prosecutor. Courtney,
288 Ill. App. 3d at 1034, 687 N.E.2d at 527.
Unlike Courtney, Kick's conflict in this case was never
brought to the court's attention. Therefore, we review the cause
only to determine whether Kick's roles in the case constituted an
actual conflict which prejudiced defendant's right to a fair
trial. See Price, 196 Ill. App. 3d 321, 553 N.E.2d 760;
Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Defendant does not
argue actual prejudice, and the record discloses none. During
Kick's brief assignment as counsel of record prior to being
appointed State's Attorney, he never appeared on defendant's
behalf. There is no indication that any information was
exchanged between defendant and Kick or between private defense
counsel and Kick. Nor it does it appear that Kick was actively
involved with the case after his appointment as State's Attorney.
Kick's initial nominal involvement as defense counsel and
subsequent supervisory position relative to the assistant State's
Attorney prosecuting the case does not, without more, warrant a
finding that defendant was deprived of a fair trial. See Price,
196 Ill. App. 3d 321, 553 N.E.2d 760. Accordingly, we hold that
defendant was not prejudiced, and we deny his request for a new
trial.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Kankakee County is affirmed.
Affirmed.
HOLDRIDGE and HOMER, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 93--CF--688
)
ROBERT SANDERS, ) Honorable
) Daniel W. Gould,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
________________________________________________________________
Defendant Robert Sanders was convicted of armed violence,
unlawful possession of a controlled substance (cocaine), unlawful
possession of cannabis, unlawful use of a weapon and unlawful
possession of a firearm without a firearm owner's identification
card (720 ILCS 5/33A--2, 570/402(c), 550/4(a) and 5/24--1(a)(4),
430 ILCS 65/2 (West 1992)). He was subsequently sentenced to six
years' imprisonment. Defendant appeals, citing a conflict of
interest arose when the initial attorney assigned to his case, a
public defender, was later appointed State's Attorney. We
affirm.
FACTS
Defendant was arrested on October 6, 1993; he first appeared
in court pro se on October 7. The court set bail, appointed the
public defender to represent defendant and set the cause for
arraignment. On October 12, Public Defender William O. Schmidt
assigned the case to his assistant, Michael J. Kick. At the
arraignment on October 26, a private attorney, Sherri Carr,
entered her appearance. Kick did not appear, and the office of
the public defender was discharged. The State served its first
discovery on attorney Carr.
On March 17, 1994, another private attorney, Leonard Sacks,
substituted for Carr. Sacks continued to represent defendant
throughout the remainder of the trial court proceedings.
Defendant was convicted on all counts on January 5, 1996.
In the meantime, on September 1, 1995, Kick became Kankakee
County State's Attorney. As of October 2, 1995, notices and
pleadings from the prosecutor's office had Kick's name listed as
State's Attorney. Nevertheless, the record shows that Assistant
State's Attorney John Kezdy was the sole member of the State's
Attorney's office prosecuting the case after June 20, 1995.
DISCUSSION AND ANALYSIS
On appeal, defendant argues that Kick's roles as State's
Attorney and defense counsel in the same case created a per se
conflict of interest and rendered defendant's trial unfair. We
disagree.
1. Conflicts of Interest
A brief overview of applicable law is necessary to our
analysis. In People v. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30
(1988), our supreme court explained the differences between per
se conflicts of interest and actual conflicts.
a. Per Se Conflicts
A per se conflict arises when defense counsel has some tie
to a person or entity which would benefit from a verdict
unfavorable to the defendant. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Our supreme court has determined that a conflict was
per se disabling when counsel has had a prior or contemporaneous
association with the prosecution or the victim. See, e.g.,
People v. Washington, 101 Ill. 2d 104, 461 N.E.2d 393 (1984)
(defense counsel simultaneously represented municipality where
defendant was prosecuted); People v. Fife, 76 Ill. 2d 418, 392 N.E.2d 1345 (1979) (defense counsel simultaneously served as
part-time assistant Attorney General representing State); People
v. Coslet, 67 Ill. 2d 127, 364 N.E.2d 67 (1977) (defense counsel
simultaneously represented administrator of victim's estate);
People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569 (1977) (defense
counsel formerly appeared as assistant State's Attorney in
defendant's case); People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441 (1968) (defense counsel's firm simultaneously represented
defendant and burglary victim).
When a per se conflict exists, a defendant may expressly
waive his attorney's conflict. However, he is not deemed to have
waived the issue by his silence at trial. See Fife, 76 Ill. 2d 418, 392 N.E.2d 1345. Prejudice is presumed, and the defendant
need not show that his attorney's performance was in any way
affected by the conflict in order to obtain a reversal of his
conviction. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30.
b. Actual Conflicts
In cases involving "actual" conflicts of interest which are
not per se disabling, either the conflict must be timely brought
to the attention of the trial court, or, on appeal, defendant
must show actual prejudice. See, e.g., Spreitzer, 123 Ill. 2d 1,
18, 525 N.E.2d 30, ___ (relief denied where former assistant
State's Attorney's appointment as public defender during
prosecution of defendant's case was not brought to trial court's
attention and no prejudice was shown); People v. Price, 196 Ill.
App. 3d 321, 553 N.E.2d 760 (1990) (retrial denied where
defendant waited until after sentencing to inform trial court
that newly elected State's Attorney appeared once on defendant's
behalf as assistant public defender and failed to show prejudice
on appeal); see also People v. Hernandez, 246 Ill. App. 3d 243,
615 N.E.2d 843 (1993). Where a timely objection is raised in the
trial court, the court is required to replace the conflicted
attorney or obtain the defendant's express waiver of the conflict
if there is even an appearance of impropriety. See, e.g., People
v. Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521 (1997). If
the issue is not raised at trial, it is deemed waived.
If the actual conflict is waived at trial, then, in order to
obtain reversal on appeal, the defendant must demonstrate that
there was prejudice at trial: i.e., special circumstances
engendering an actual conflict adversely affecting the
defendant's right to a fair trial. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Prejudice is shown if there is a possibility that a
defendant's former counsel divulged or used confidential
information in the prosecution of the defendant's case. See
People v. Price, 196 Ill. App. 3d 321, 553 N.E.2d 760 (1990); see
also Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521.
2. Kick's Alleged Conflict of Interest
The conflict in this case was not per se; Kick's position as
State's Attorney was neither prior to nor contemporaneous with
his defense of the cause. See Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Further, prior to this appeal, defendant neither
indicated that a conflict of interest existed nor requested that
a special prosecutor be appointed. In this respect, the alleged
conflict is distinguishable from that presented in Courtney.
In Courtney, Kick actively represented the defendant before
he was appointed State's Attorney and his conflict of interest
was raised repeatedly in the trial court. Although the State
initially advised the court that an assistant Attorney General
would take over prosecution of the case, it was ultimately
handled by Kick's office. Under these circumstances, we ruled
that no further evidence of prejudice was required to entitle
defendant to a new trial with a special prosecutor. Courtney,
288 Ill. App. 3d at 1034, 687 N.E.2d at 527.
Unlike Courtney, Kick's conflict in this case was never
brought to the court's attention. Therefore, we review the cause
only to determine whether Kick's roles in the case constituted an
actual conflict which prejudiced defendant's right to a fair
trial. See Price, 196 Ill. App. 3d 321, 553 N.E.2d 760;
Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30. Defendant does not
argue actual prejudice, and the record discloses none. During
Kick's brief assignment as counsel of record prior to being
appointed State's Attorney, he never appeared on defendant's
behalf. There is no indication that any information was
exchanged between defendant and Kick or between private defense
counsel and Kick. Nor it does it appear that Kick was actively
involved with the case after his appointment as State's Attorney.
Kick's initial nominal involvement as defense counsel and
subsequent supervisory position relative to the assistant State's
Attorney prosecuting the case does not, without more, warrant a
finding that defendant was deprived of a fair trial. See Price,
196 Ill. App. 3d 321, 553 N.E.2d 760. Accordingly, we hold that
defendant was not prejudiced, and we deny his request for a new
trial.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Kankakee County is affirmed.
Affirmed.
HOLDRIDGE and HOMER, JJ., concur.
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