{ "id": 5461163, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JESUS FIDEL MORALES, Appellee", "name_abbreviation": "People v. Morales", "decision_date": "2004-04-01", "docket_number": "No. 93806", "first_page": "340", "last_page": "353", "citations": [ { "type": "official", "cite": "209 Ill. 2d 340" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "139 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573752 ], "year": 1990, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0001-01" ] }, { "cite": "446 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182598 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "350" }, { "page": "348" }, { "page": "1719" }, { "page": "350" }, { "page": "348" }, { "page": "1719" } ], "opinion_index": 0, "case_paths": [ "/us/446/0335-01" ] }, { "cite": "121 Ill. 2d 21", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3202008 ], "year": 1988, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0021-01" ] }, { "cite": "159 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781339 ], "year": 1994, "pin_cites": [ { "page": "29-30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0001-01" ] }, { "cite": "535 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353765 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "168" }, { "page": "302" }, { "page": "1241-42" } ], "opinion_index": 0, "case_paths": [ "/us/535/0162-01" ] }, { "cite": "435 U.S. 475", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2258 ], "weight": 6, "year": 1978, "pin_cites": [ { "page": "484" }, { "page": "434" }, { "page": "1178" }, { "page": "484" }, { "page": "434" }, { "page": "1178" } ], "opinion_index": 0, "case_paths": [ "/us/435/0475-01" ] }, { "cite": "131 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569956 ], "year": 1989, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0104-01" ] }, { "cite": "163 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477614 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "211", "parenthetical": "collecting cases" }, { "page": "217-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0187-01" ] }, { "cite": "123 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551204 ], "weight": 9, "year": 1988, "pin_cites": [ { "page": "14-19" }, { "page": "15" }, { "page": "17" }, { "page": "14" }, { "page": "18" }, { "page": "18" }, { "page": "22" }, { "page": "18" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0001-01" ] }, { "cite": "101 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160843 ], "year": 1984, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0104-01" ] }, { "cite": "199 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58923 ], "year": 2002, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0541-01" ] }, { "cite": "329 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472370 ], "weight": 3, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0097-01" ] }, { "cite": "75 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990142 ], "year": 1979, "pin_cites": [ { "page": "176", "parenthetical": "per se rule provides that where defense counsel is involved in an actual or potential conflict of interest, it is unnecessary for the defendant to establish actual prejudice" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/75/0173-01" ] }, { "cite": "133 Ill. 2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260218 ], "year": 1989, "pin_cites": [ { "page": "254", "parenthetical": "potential conflict of interest may have precluded attorney from properly cross-examining certain witnesses the State indicated it may call at trial" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/133/0226-01" ] }, { "cite": "131 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569956 ], "year": 1989, "pin_cites": [ { "page": "111", "parenthetical": "defendant need not show prejudice under the per se rule when his attorney had \" 'an actual or possible conflict of professional interests' \"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/131/0104-01" ] }, { "cite": "163 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477614 ], "year": 1994, "pin_cites": [ { "page": "217-18" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/163/0187-01" ] }, { "cite": "101 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160843 ], "year": 1984, "pin_cites": [ { "page": "110" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/101/0104-01" ] } ], "analysis": { "cardinality": 863, "char_count": 21510, "ocr_confidence": 0.754, "pagerank": { "raw": 1.7061054459741592e-07, "percentile": 0.7016903302084407 }, "sha256": "18a46716770dd6bd33de74a8a9e3a6c28e3db80fc4cbb2b6b742c6b45f1c91b4", "simhash": "1:7ab9e52bef15a6e0", "word_count": 3406 }, "last_updated": "2023-07-14T19:28:21.003204+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JESUS FIDEL MORALES, Appellee." ], "opinions": [ { "text": "JUSTICE GARMAN\ndelivered the opinion of the court:\nAfter a jury trial, the defendant, Jesus Fidel Morales, was convicted of first degree murder, solicitation to commit murder for hire, and conspiracy to commit murder in connection with the shooting death of Kedric Bell in Chicago on January 16, 1995. The appellate court reversed the conviction and remanded for a new trial on the ground that defense counsel labored under a per se conflict of interest that defendant did not waive. 329 Ill. App. 3d 97. We granted the State\u2019s petition for leave to appeal pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315). For reasons that follow, we now reverse the judgment of the appellate court.\nI. BACKGROUND\nDuring 1994 defendant distributed large quantities of cocaine in Chicago and other cities in the Midwest. Jorge Hernandez was defendant\u2019s superior in the drug distribution organization. He obtained the cocaine from Colombian sources and supplied it to defendant. Hernandez was also defendant\u2019s \u201cbrother-in-law\u201d because Hernandez\u2019s sister, Olga Medina, was defendant\u2019s girlfriend or \u201ccommon law wife.\u201d\nEarly in 1995, defendant was unable to pay approximately $200,000 he owed to Hernandez for drugs previously supplied. Hernandez threatened defendant and sent a courier to Chicago to collect. Defendant arranged for an extension of time and the courier left. Meanwhile, defendant asked an associate, Alexis Paredero, to look into hiring someone to kill Hernandez\u2019s next courier. Defendant planned to make it appear that he had paid the debt but that the courier had later been robbed and killed by persons unknown. Paredero recruited a gang member, Malcolm \u201cPrince\u201d Ortiz, who agreed to commit the murder for $10,000. When Kedric Bell arrived in Chicago to collect on behalf of Hernandez, defendant told Paredero that it would be necessary to go ahead with the murder.\nOn January 15, 1995, Paredero set up a meeting between defendant and Ortiz, during which they agreed on the site of the killing, the weapon, payment of the fee, and other details. Later that evening, Paredero picked up Bell, who had been told that he would now be paid. Instead, Paredero delivered Bell to the murder site, where Ortiz and an associate, posing as police officers, pretended to arrest Bell and Paredero. Ortiz frisked Bell, took his pager, and then shot him to death.\nHernandez did not testify at trial. Paredero testified at length about how defendant conceived, helped plan, and paid for the murder. The State also introduced into evidence a 13-page written statement signed by defendant that corroborated Paredero\u2019s testimony. Other witnesses testified concerning defendant\u2019s drug dealing, Hernandez\u2019s role as supplier, Kedric Bell\u2019s reason for coming to Chicago, and statements made by defendant before and after the murder. At the sentencing hearing, the State introduced a letter written by Hernandez in September of 1995 to a purported member of a Colombian drug cartel stating that defendant and Olga Medina would take over Hernandez\u2019s drug operation while Hernandez was in prison and that the Colombians should deal with them just as they had dealt with Hernandez.\nThe question before us arises because defendant\u2019s retained counsel, Michael Blacker of Miami, represented Hernandez in Florida in connection with federal drug charges at the same time he represented defendant at trial in this case. In open court during a pretrial hearing on defendant\u2019s motion to suppress, in the presence of defendant and Blacker, Assistant State\u2019s Attorney David Kelley apprised the court of Blacker\u2019s representation of Hernandez, of the fact that Hernandez was a potential witness for the State, and of the potential conflict of interest that resulted from those facts. At Kelley\u2019s request, the court asked defendant whether he understood what the assistant State\u2019s Attorney had just said and whether, in light of the possible conflict, he wished to continue with Blacker as his counsel. Defendant answered the court\u2019s questions affirmatively. The court accepted defendant\u2019s purported waiver of the conflict without further inquiry. Blacker remained silent throughout the colloquy.\nNo statement by Hernandez was introduced into evidence against defendant at trial. At the sentencing phase the State introduced parts of a letter that Hernandez wrote from jail to a purported member of a Colombian drug cartel, in which he stated that defendant and Olga Medina would take over Hernandez\u2019s drug business while Hernandez was in prison. Hernandez asked that the Colombians deal with defendant just as they had dealt with him. Attorney Blacker attempted to discredit the letter by introducing evidence that Hernandez was mentally unstable.\nThe posttrial motions that Blacker filed on behalf of defendant did not mention conflict of interest or ineffective assistance of counsel. Defendant claimed on appeal that Blacker\u2019s contemporaneous representation of Hernandez created a conflict of interest that worked to deprive him of the effective assistance of counsel in violation of the sixth amendment (U.S. Const., amend. VI). The appellate court reversed defendant\u2019s conviction on that basis. 329 Ill. App. 3d 97.\nII. ANALYSIS\nA\nWe review de novo the legal question whether the undisputed facts of record present a per se conflict. See People v. Miller, 199 Ill. 2d 541, 545 (2002). A criminal defendant\u2019s sixth amendment right to effective assistance of counsel includes the right to conflict-free representation. People v. Washington, 101 Ill. 2d 104, 110 (1984). In People v. Spreitzer, 123 Ill. 2d 1, 14-19 (1988), we clarified the framework for deciding whether defense counsel\u2019s conflict of interest violates the sixth amendment. Under Spreitzer, we must first decide whether there was a per se conflict of interest. If there was a per se conflict, \u201cthere is no need to show that the attorney\u2019s actual performance was in any way affected by the existence of the conflict.\u201d Spreitzer, 123 Ill. 2d at 15. That is, a per se conflict is grounds for reversal unless the defendant waived his right to conflict-free counsel. Spreitzer, 123 Ill. 2d at 17. We refer to this rule of automatic reversal as the \u201cper se rule.\u201d\nWe have found a per se conflict when defense counsel had a contemporaneous relationship with the victim, the prosecution, or an entity assisting the prosecution. People v. Lawson, 163 Ill. 2d 187, 211 (1994) (collecting cases). We have also found a per se conflict when defense counsel contemporaneously represented a prosecution witness. People v. Thomas, 131 Ill. 2d 104, 111 (1989). Finally, we have found a per se conflict when defense counsel was a former prosecutor who had been personally involved in the prosecution of the defendant. Lawson, 163 Ill. 2d at 217-18.\nThis case most closely resembles the cases in which defense counsel contemporaneously represented a prosecution witness, because Hernandez was a potential witness for the State. It is undisputed that Blacker had an attorney-client relationship with Hernandez while he represented defendant. The question becomes whether Hernandez\u2019s relationship to the case triggers the per se rule. Spreitzer provides the rule that answers this question: A per se conflict is one in which \u201cfacts about a defense attorney\u2019s status *** engender, by themselves, a disabling conflict.\u201d (Emphasis in original.) Spreitzer, 123 Ill. 2d at 14. In this case, Hernandez was a potential witness and his out-of-court statements about defendant in a letter were admitted into evidence at sentencing. However, the fact remains that he was never a witness. Thus defense counsel never assumed the status of attorney for a prosecution witness. We therefore hold that attorney Blacker\u2019s simultaneous representation of Hernandez and defendant did not constitute a per se conflict of interest.\nDefendant urges us to disregard Hernandez\u2019s status as merely a potential witness and to agree with the appellate court that it is \u201cevident that Hernandez was a person who could likely benefit from an unfavorable verdict for defendant.\u201d See 329 Ill. App. 3d at 108. In this record, however, we find no basis for concluding that Hernandez stood to gain from defendant\u2019s conviction. The evidence in the record about the relationship between Hernandez and the defendant is speculative at best about where Hernandez\u2019s interests lay during the time Blacker represented defendant. For example, the letter that Hernandez wrote to a purported member of a Colombian drug cartel indicates that at the time the letter was written, around nine months after the murder, Hernandez still trusted defendant enough to put him in charge of Hernandez\u2019s drug operation. At another point the record shows that witnesses would testify that Hernandez stated that defendant killed the victim Bell, who was Hernandez\u2019s courier. The record does not tell us how to reconcile Hernandez\u2019s expressed trust in defendant with his statements that defendant killed Bell. In short, whether Hernandez wanted a particular result from defendant\u2019s trial depends on unknown facts about Hernandez. Speculation that Hernandez might have stood to benefit from a verdict against defendant does not support application of the per se rule.\nB\nDefendant argues that, even if we find no per se conflict, he is nevertheless entitled to automatic reversal of his conviction without a showing that his attorney\u2019s performance was affected by a conflict. Defendant relies on two premises. First, he argues that the trial court in this case had a duty under Holloway v. Arkansas either to appoint different counsel or to ascertain that the risk of a conflict was too remote to justify doing so. See Spreitzer, 123 Ill. 2d at 18, citing Holloway v. Arkansas, 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178 (1978). Second, he argues the trial court failed to fulfill its duty.\nDefendant\u2019s argument fails because the premise that Holloway applies to this case is mistaken. In Spreitzer we said that Holloway applies when \u201ccounsel brings the potential conflict to the attention of the trial court at an early stage.\u201d Spreitzer, 123 Ill. 2d at 18. In this case counsel for the State, not defense counsel, informed the court at an early stage about the possible conflict arising from Blacker\u2019s representation of Hernandez. Our reference to \u201ccounsel\u201d in Spreitzer refers only to defense counsel. In Holloway, counsel for three codefendants timely moved for appointment of separate counsel, alleging that his clients\u2019 interests would conflict at trial. The Supreme Court held that under those circumstances the trial judge must either appoint separate counsel or take adequate steps to ascertain that the risk of conflict is too remote to warrant doing so. Holloway, 435 U.S. at 484, 55 L. Ed. 2d at 434, 98 S. Ct. at 1178. The Supreme Court recently confirmed that Holloway\u2019s rule of automatic reversal applies only when a trial court fails to respond appropriately to defense counsel\u2019s objection to a representation. Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d 291, 302, 122 S. Ct. 1237, 1241-42 (2001). In Spreitzer itself, and on at least two other occasions, we declined to apply Holloway on the ground that defense counsel did not raise the issue of a conflict. Spreitzer, 123 Ill. 2d at 22; People v. Kitchen, 159 Ill. 2d 1, 29-30 (1994); People v. Jones, 121 Ill. 2d 21, 29 (1988). In this case, neither defendant nor defense counsel suggested to the trial court that the representation of the defendant was actually or potentially hampered by counsel\u2019s representation of Hernandez. Therefore, Holloway does not apply to this case.\nC\nHaving determined that neither the per se rule nor Holloway applies to this case, we must determine whether the defendant has shown an actual conflict of interest. Spreitzer, 123 Ill. 2d at 18, citing Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 348, 100 S. Ct. 1708, 1719 (1980). A defendant may establish a violation of his right to effective assistance of counsel by showing an actual conflict of interest that adversely affected his counsel\u2019s performance. Sullivan, 446 U.S. at 350, 64 L. Ed. 2d at 348, 100 S. Ct. at 1719. To do so, he must show \u201csome specific defect in his counsel\u2019s strategy, tactics, or decision making attributable to [a] conflict.\u201d Spreitzer, 123 Ill. 2d at 18. Speculative allegations and conclusory statements are not sufficient to establish that an actual conflict of interest affected counsel\u2019s performance. People v. Williams, 139 Ill. 2d 1, 12 (1990).\nDefendant alleges that defense counsel Blacker\u2019s performance was adversely affected by his conflicting duties to Hernandez in three ways. First, he alleges that Blacker was limited in his ability to cross-examine each witness who testified about Hernandez. Two witnesses, Osvaldo Marcial and Roger Ross, testified that they knew Hernandez. Other witnesses did not know Hernandez but testified about statements defendant made that indicated that he owed Hernandez money and that Hernandez was using threats to pressure him to pay. Marcial testified that while working for Hernandez he delivered 50 kilograms of cocaine to defendant in Chicago. Ross, who was Kedric Bell\u2019s cousin and an associate of Hernandez, testified that Hernandez sent Kedric Bell to Chicago. Ross testified further that, after learning that Bell had been shot, he called Hernandez, who gave him defendant\u2019s phone number. It is not apparent from the record that Blacker\u2019s duties to Hernandez adversely affected his cross-examination of the two witnesses who knew Hernandez. We fail to understand how Blacker\u2019s duties to Hernandez could have affected his cross-examination of the witnesses who could only testify about statements that the defendant made about Hernandez. Defendant fails to point to any specific defects in the cross-examination of any witness. Defendant\u2019s bare allegation that Blacker\u2019s cross-examination was somehow affected is insufficient.\nSecond, defendant asserts that Blacker was limited in his ability to cross-examine the DEA agent who testified concerning the letter that Hernandez wrote and which was entered into evidence against defendant at his sentencing hearing. Again, defendant offers nothing beyond the bare and legally insufficient claim that counsel\u2019s cross-examination was adversely affected in some unspecified way.\nThird, defendant asserts that Blacker was either unwilling or unable to disparage Hernandez during his opening statement and closing argument. However, Hernandez\u2019s credibility was not at issue at trial because he was not a witness, and defendant does not explain why it would have made sense for Blacker to disparage Hernandez at those times. We note that when it clearly did make sense for Blacker to attack Hernandez\u2019s credibility \u2014 at the sentencing hearing, after the State introduced into evidence parts of a letter that Hernandez wrote \u2014 Blacker did so. We conclude that defendant has not shown any specific defect in Blacker\u2019s performance that we may attribute to conflicting duties that Blacker owed to Hernandez.\nDefendant also asserts that Blacker was limited in his ability to cross-examine one witness, Roger Ross, because Blacker owed conflicting duties to Ross. Before Ross testified, Blacker informed the trial court that he had probably been privy to confidential information while consulting with Ross about the possibility of representing him on appeal from the denial of Ross\u2019 motion to suppress. The evidence that Ross had moved to suppress led to the arrest of both Ross and Hernandez and to Ross\u2019 eventual conviction on drug charges. The court ruled that Blacker could not cross-examine Ross about the facts and circumstances behind Ross\u2019 arrest and conviction. However, the record indicates that the basis for the court\u2019s ruling was the State\u2019s objection that the material was irrelevant, not that Blacker had received confidences.\nDefendant argues that Blacker\u2019s inability to cross-examine Ross left the jury to assume the truth of Ross\u2019 testimony that he was part of Hernandez\u2019s drug operation, that Hernandez sent Bell to Chicago to collect a debt, and that Hernandez gave him the defendant\u2019s name and phone number after Bell was killed. Defendant does not explain how cross-examination about the circumstances of Ross\u2019 arrest could possibly have been used to attack Ross\u2019 testimony. Speculation that cross-examination might have been useful somehow would not be enough to establish a defect in Blacker\u2019s performance. Thus even if we assumed, contrary to what the record shows, that it was Blacker\u2019s conflicting duties to Ross that limited his cross-examination, there is no reason to think that the limitation adversely affected Blacker\u2019s performance.\nBased on the foregoing, we conclude that the defendant has not established that defense counsel labored under an actual conflict of interest that adversely affected his performance.\nIII. CONCLUSION\nDefendant has not shown that his sixth amendment right to the effective assistance of counsel was violated due to his trial counsel\u2019s conflict of interest. He has established neither that counsel\u2019s representation of Hernandez constituted a per se conflict of interest, nor that counsel\u2019s performance was adversely affected by an actual conflict of interest. The appellate court, having reversed defendant\u2019s conviction and remanded for a new trial, did not address certain claims defendant raised. Those claims are not before us. We therefore reverse the appellate court\u2019s judgment and remand this cause to the appellate court for consideration of those of defendant\u2019s claims that have not been decided.\nReversed and remanded.", "type": "majority", "author": "JUSTICE GARMAN" }, { "text": "JUSTICE KILBRIDE,\nspecially concurring:\nI concur in the majority\u2019s decision but write separately because, although I agree with the result reached by the majority, I disagree with the majority\u2019s reliance on a conflict of interest analysis. The majority should have decided this case on the waiver issue.\nThe majority concludes that to constitute a per se conflict, it is not enough that the State\u2019s witness be a potential witness; rather, the State\u2019s witness must be an actual witness in the case. 209 Ill. 2d at 346. An \u201cactual\u201d conflict is not necessary to constitute a per se conflict; instead, there need only be a \u201cpotential\u201d conflict. It is enough that the defendant\u2019s attorney is representing or has represented a \u201cpotential\u201d State\u2019s witness. This court has consistently held that a \u201cpossible conflict of interest\u201d dictated \u201capplication of a per se rule.\u201d See People v. Lawson, 163 Ill. 2d 187, 217-18 (1994); see also People v. Barrow, 133 Ill. 2d 226, 254 (1989) (potential conflict of interest may have precluded attorney from properly cross-examining certain witnesses the State indicated it may call at trial); People v. Thomas, 131 Ill. 2d 104, 111 (1989) (defendant need not show prejudice under the per se rule when his attorney had \u201c \u2018an actual or possible conflict of professional interests\u2019 \u201d), quoting People v. Washington, 101 Ill. 2d 104, 110 (1984); People v. Franklin, 75 Ill. 2d 173, 176 (1979) (per se rule provides that where defense counsel is involved in an actual or potential conflict of interest, it is unnecessary for the defendant to establish actual prejudice).\nIt will not always be possible to know at the time of the disclosure of the potential conflict whether the State\u2019s witness will \u201cactually\u201d testify. Here, when the State disclosed the potential conflict to the trial court, it stated that Hernandez \u201ccould potentially be a witness for the State in its case in chief, and even more likely perhaps in aggravation if the case would proceed *** for a death penalty sentencing.\u201d Hernandez\u2019s involvement in this case was addressed by both parties in opening statements, by nearly every witness at trial, and in closing arguments. If the State had called Hernandez to testify, both parties concede that a per se conflict would have developed. Accordingly, I would hold that defense counsel\u2019s contemporaneous representation of defendant and Hernandez created a per se conflict of interest.\nI would, however, hold that defendant\u2019s conviction should not be reversed because he was made aware of the potential conflict and knowingly waived his right to conflict-free counsel. The majority does not address the actual appellate court holding as briefed and argued by the parties. The appellate court decision was based on whether defendant\u2019s waiver of any potential conflict of interest was knowing or intelligent. The majority opinion mentions in the background of the case that defendant waived the conflict in the trial court, but then makes no mention of this in the analysis. The defendant retained the attorney and then waived the potential conflict in open court. The appellate court decision should be reversed on the basis that defendant waived any potential conflict.\nJUSTICE RARICK joins in this special concurrence.", "type": "concurrence", "author": "JUSTICE KILBRIDE," } ], "attorneys": [ "James E. Ryan and Lisa Madigan, Attorneys General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (William L. Browers, Lisa Hoffman and Linda D. Woloshin, Assistant Attorneys General, of Chicago, and Renee G. Goldfarb, Sari London, James E McKay, Jr., Veronica Calderon Malavia and Tracey Annen, Assistant State\u2019s Attorneys, of counsel), for the People.", "Andrea D. Lyon, of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 93806.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JESUS FIDEL MORALES, Appellee.\nOpinion filed April 1, 2004.\nKILBRIDE, J., joined by RARICK, J., specially concurring.\nJames E. Ryan and Lisa Madigan, Attorneys General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (William L. Browers, Lisa Hoffman and Linda D. Woloshin, Assistant Attorneys General, of Chicago, and Renee G. Goldfarb, Sari London, James E McKay, Jr., Veronica Calderon Malavia and Tracey Annen, Assistant State\u2019s Attorneys, of counsel), for the People.\nAndrea D. Lyon, of Chicago, for appellee." }, "file_name": "0340-01", "first_page_order": 352, "last_page_order": 365 }