{ "id": 5474461, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MARTINEZ, Defendant-Appellant", "name_abbreviation": "People v. Martinez", "decision_date": "1982-03-09", "docket_number": "No. 80-2049", "first_page": "990", "last_page": "994", "citations": [ { "type": "official", "cite": "104 Ill. App. 3d 990" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "101 S. Ct. 1745", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "68 L. Ed. 2d 228", "category": "reporters:federal", "reporter": "L. 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App. 3d", "case_ids": [ 5620182 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0007-01" ] } ], "analysis": { "cardinality": 586, "char_count": 10895, "ocr_confidence": 0.902, "pagerank": { "raw": 8.790811537017405e-08, "percentile": 0.49604108193180374 }, "sha256": "30797d84cbab66552d2c74089bf8a8ea0035c868899998a2ca722110a97f7f57", "simhash": "1:21d4b8be5453efed", "word_count": 1711 }, "last_updated": "2023-07-14T21:00:33.067215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MARTINEZ, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE STAMOS\ndelivered the opinion of the court:\nPetitioner Robert Martinez appeals from the denial of his petition for a post-conviction hearing. In his post-conviction petition, Martinez raised one constitutional claim: that he was denied the effective assistance of counsel because of his attorneys\u2019 conflicts of interest. Petitioner\u2019s trial and appellate counsel had also represented a co-defendant who was separately tried and convicted for the same crimes. Further, one of petitioner\u2019s trial attorneys had previously represented the State\u2019s principal witness against petitioner.\nFollowing a jury trial, petitioner was convicted of conspiracy, aggravated kidnapping and murder in connection with the death, on October 1, 1972, of Hillside patrolman Anthony Raymond. Petitioner\u2019s trial attorneys were Sam Adam and James Cutrone. Silas Fletcher, also charged with the murder of Raymond, had already been convicted in a separate trial. Fletcher had been represented at trial by Adam and Cutrone. At the time of petitioner\u2019s trial, Fletcher\u2019s appeal was pending. Cutrone represented Fletcher on appeal.\nThe principal witness against petitioner was Vincent McCabe. On two prior occasions, McCabe, represented by Cutrone, had appeared before a grand jury and denied knowledge of the crimes. At petitioner\u2019s trial, McCabe retracted his earlier denials and testified in detail concerning petitioner\u2019s alleged admissions regarding Raymond\u2019s kidnapping and murder. At the time of trial, McCabe was participating in the Federal Witness Protection Program. Petitioner was convicted and sentenced to 75-150 years\u2019 imprisonment. On direct appeal, his conviction was affirmed. (People v. Martinez (1978), 62 Ill. App. 3d 7, 377 N.E.2d 1222.) Petitioner was represented on appeal by Sam Adam.\nThe State argues that petitioner\u2019s claim of ineffective assistance of counsel must be held waived because petitioner failed to raise the point on direct appeal from his conviction. This argument overlooks the obvious: if petitioner\u2019s representation at trial was ineffective, he could hardly rely on his appellate counsel (one of the trial attorneys) to argue that claim. In a similar situation, we recently held that an error not raised earlier was not waived for a post-conviction petition where the issue in the post-conviction proceeding was previous counsel\u2019s incompetence for failing to make a timely assignment of error. See People v. Talley (1981), 97 Ill. App. 3d 439, 442, 422 N.E.2d 1084.\nIn Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333,100 S. Ct. 1708, the Supreme Court considered a post-conviction claim that joint representation of co-defendants created a conflict of interest and impaired the defendant\u2019s representation. The court stated:\n\u201cIn order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer\u2019s performance.\u201d (446 U.S. 335, 348, 64 L. Ed. 2d 333, 346-47, 100 S. Ct. 1708, 1718.)\nPetitioner made no objection at trial concerning his representation. It is therefore incumbent upon him to show that an \u201cactual conflict of interest\u201d impaired his attorneys\u2019 efforts. In 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, our supreme court held that the conflict shown must be actual; speculative or hypothetical conflicts are insufficient. 74 Ill. 2d 286, 301.\nWe find it helpful in this regard to review some of the situations that Illinois courts have found to create \u201cactual\u201d conflicts of interest. (1) In a joint trial, the same attorney cannot represent two co-defendants who have antagonistic defenses. (People v. Wilder (1977), 48 Ill. App. 3d 13, 15, 362 N.E.2d 436.) (2) In a joint trial, a defendant whose testimony is antagonistic to the interest of a co-defendant has a conflict of interest with that co-defendant. The same principle applies to separate trials if one defendant testifies at the trial of the other. (People v. Wilder (1977), 48 Ill. App. 3d 13, 15.) (3) In a joint trial, where one defendant\u2019s out-of-court statement is introduced against the other defendant, there is an actual conflict of interest even though the declarant may deny making the statement. In this situation, the defense has been impaired because the attorney for both defendants cannot adequately impeach the defendant who made the statement. (People v. Cade (1981), 97 Ill. App. 3d 354, 357, 422 N.E.2d 1002.) (4) Where an attorney successfully argues for the exclusion of fingerprint evidence and the evidence tends to exculpate one defendant but incriminate a co-defendant, there is an actual conflict of interest in joint representation. People v. Echols (1978), 74 Ill. 2d 319, 325, 328, 385 N.E.2d 644.\nThe foregoing cases illustrate that an actual conflict of interest occurs when an attorney, without the knowledge and consent of his client, has divided loyalties and when his commitments to others measurably impair his ability to channel his full talents toward acquittal of his client. (See People v. Hope (1981), 96 Ill. App. 3d 180, 184, 420 N.E.2d 1171; see also Porter v. United States (5th Cir. 1962), 298 F.2d 461, 463, quoted with approval in People v. Stoval (1968), 40 Ill. 2d 109, 111-12, 239 N.E.2d 441.) Petitioner\u2019s allegations of actual conflict of interest are reducible to three points: (1) his attorneys did not call Silas Fletcher to rebut McCabe\u2019s testimony implicating petitioner; (2) because of the prior attorney-client relationship with McCab\u00e9, petitioner\u2019s attorneys did not rebut McCabe\u2019s testimony; (3) the attorneys did not call petitioner to testify in his own defense.\nAlthough the defense called no witnesses at trial, petitioner has, in an affidavit prepared in support of his post-conviction petition, denied involvement in Raymond\u2019s murder. Petitioner states that he had no connection with the killing or the preceding robbery of a restaurant but came to Silas Fletcher\u2019s house as Fletcher was preparing to take Raymond\u2019s body, then in a steel drum, to the Wisconsin farm where the body was eventually found. Silas Fletcher also prepared an affidavit in support of petitioner\u2019s post-conviction petition, confirming petitioner\u2019s account. Fletcher\u2019s affidavit states that Martinez had no involvement in the robbery or murder; Martinez came to Fletcher\u2019s home and, at Fletcher\u2019s insistence, accompanied Fletcher (and the makeshift coffin) to the Wisconsin farm. Petitioner now contends that Fletcher, if called as a witness, would have testified to Martinez\u2019 noninvolvement in the crime and thus rebutted McCabe\u2019s testimony.\nThe claim that Fletcher\u2019s testimony, if offered, would have vindicated petitioner is pure speculation. Fletcher\u2019s appeal was pending at the time of petitioner\u2019s trial. At his own trial, Fletcher denied involvement in the crime and said he was hunting in Wisconsin on the day of the murder. On appeal, Fletcher claimed, inter alia, that he was not proved guilty beyond a reasonable doubt. (See People v. Fletcher (1978), 59 Ill. App. 3d 310, 313, 375 N.E.2d 1333.) It is, to put it mildly, highly unlikely that Fletcher would have testified during the pendency of his appeal that he had personal knowledge that Martinez was not involved in the crime. Fletcher is currently in the penitentiary serving a 100-200 year term. His affidavit, exculpating a co-defendant at his own expense, is of doubtful value. Nevertheless, the truth of the affidavits is not the issue. The issue is whether the attorneys\u2019 failure to call Fletcher demonstrates an actual conflict of interest. The courts of this State \u201chave refused to find hostility between the interests of criminal co-defendants based on the mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another.\u201d People v. Canales (1980), 86 Ill. App. 3d 738, 744, 408 N.E.2d 299; see People v. Echols (1978), 74 Ill. 2d 319, 327-28.\nIt is also speculative to claim that independent counsel would have rebutted McCabe\u2019s testimony. First, we note that McCabe was no longer Cutrone\u2019s client at the time of petitioner\u2019s trial. The trial court, in denying petitioner\u2019s post-conviction petition, recalled that McCabe was cross-examined at great length and quite thoroughly by both Adam and Cutrone. Most importantly, petitioner has made no showing that any evidence existed or was known to his attorneys that could have been offered to rebut McCabe\u2019s testimony. Under the circumstances, the claim that independent counsel could have done more than petitioner\u2019s trial attorneys is wholly conjectural.\nPetitioner contends that despite his protests he was not called to testify in his own defense and that this decision was dictated by his attorneys\u2019 loyalty to Fletcher and McCabe. As noted above, petitioner did not express his dissatisfaction to the trial court, nor has he shown any evidence of Cutrone\u2019s continuing loyalty to McCabe. (Cf. People v. Hope (1981), 96 Ill. App. 3d 180, 185 (assertion that attorney might have held confidential information from a prior client is speculation).) Furthermore, the rule as stated in Canales and Echols again applies: the fact that defense counsel did not choose a strategy that might have helped petitioner at the expense of a co-defendant does not establish an actual conflict of interest. (See People v. Echols (1978), 74 Ill. 2d 319; People v. Canales (1980), 86 Ill. App. 3d 738, 743-44.) The State\u2019s case against petitioner was based on circumstantial evidence and on the testimony of McCabe, an admitted perjurer. The decision to offer no defense was a reasonable tactical decision. This court may not speculate whether independent counsel would have made the same decision. Cf. People v. Gray (1980), 87 Ill. App. 3d 142, 152, 408 N.E.2d 1150, cert, denied (1981), 450 U.S. 1032, 68 L. Ed. 2d 228, 101 S. Ct. 1745 (joint attorney did not advise defendant to testify against her co-defendants; reviewing court would not speculate as to how attorney should have advised defendant).\nPetitioner has not met the test set forth in Berland and Cuyler, he has advanced possible conflicts of interest but has shown no actual conflict. He has thus failed to establish a deprivation of his sixth amendment right to effective assistance of counsel. The trial court\u2019s dismissal of the post-conviction petition was therefore correct and is affirmed.\nAffirmed.\nDOWNING and PERLIN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STAMOS" } ], "attorneys": [ "Nicholas F. Maniscalco, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Frank Castiglione, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MARTINEZ, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 80-2049\nOpinion filed March 9, 1982.\nNicholas F. Maniscalco, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Frank Castiglione, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0990-01", "first_page_order": 1012, "last_page_order": 1016 }