{ "id": 5573694, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PATRICK DALY, Defendant-Appellant; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JON P. UMPHRYES, Defendant-Appellant; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRACY M. THOMPSON, Defendant-Appellant; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID J. WICKERT, Defendant-Appellant; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEWIS E. JONES, Defendant-Appellant", "name_abbreviation": "People v. Daly", "decision_date": "2003-06-30", "docket_number": "Nos. 4\u201401\u20140575, 4\u201401\u20140576, 4\u201401\u20140577, 4\u201401\u20140657, 4\u201402\u20140823 cons.", "first_page": "372", "last_page": "379", "citations": [ { "type": "official", "cite": "341 Ill. App. 3d 372" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "239 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "443" } ], "opinion_index": 0 }, { "cite": "40 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856293 ], "year": 1968, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0109-01" ] }, { "cite": "729 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "513" }, { "page": "513" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 399", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186523 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "409" }, { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0399-01" ] }, { "cite": "585 N.E.2d 115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "146 Ill. 2d 44", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597287 ], "year": 1991, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0044-01" ] }, { "cite": "615 N.E.2d 843", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "848" }, { "page": "848" }, { "page": "848" } ], "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5389114 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "249" }, { "page": "249" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0243-01" ] }, { "cite": "727 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "357", "parenthetical": "defense counsel's simultaneous representation of the defendant and the State's witness creates a per se conflict of interest" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 521", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224773 ], "year": 2000, "pin_cites": [ { "page": "538", "parenthetical": "defense counsel's simultaneous representation of the defendant and the State's witness creates a per se conflict of interest" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0521-01" ] }, { "cite": "163 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477614 ], "year": 1994, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0187-01" ] }, { "cite": "545 N.E.2d 654", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "658" }, { "page": "657" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569956 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "114" }, { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0104-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "486" }, { "page": "487" }, { "page": "487" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "83" }, { "page": "83" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "771 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "387" }, { "page": "388" }, { "page": "388" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58923 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "544" }, { "page": "545" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0541-01" ] } ], "analysis": { "cardinality": 799, "char_count": 16948, "ocr_confidence": 0.767, "pagerank": { "raw": 6.095130193347235e-08, "percentile": 0.380513497118944 }, "sha256": "c1262f086204037e77e5624805c17593cee1e80e50cdaf87c55f28e3ec546686", "simhash": "1:ba7437c03246bd60", "word_count": 2663 }, "last_updated": "2023-07-14T21:38:13.673521+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. JAMES PATRICK DALY, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JON P. UMPHRYES, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRACY M. THOMPSON, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID J. WICKERT, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEWIS E. JONES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nThis appeal involves five cases consolidated for the purpose of appeal. The relevant defendants, James Patrick Daly, Jon E Umphryes, Tracy M. Thompson, David J. Wickert, and Lewis E. Jones, appeal the final orders of the Schuyler County circuit court convicting defendants of charges resulting from undercover drug buys accomplished by Schuyler County confidential informant Brian K. Jockisch. Similar issues are presented by the five cases. We focus on the first case, involving defendant Daly.\nI. BACKGROUND\nPrior to August 1999, Brian Jockisch was a paid informant in Fulton and McDonough Counties. Jockisch made his living as a paid informant. In August 1999, Jockisch was charged, in Schuyler County, with unlawful possession of cannabis, a misdemeanor, and illegal harvesting of ginseng without a license. Attorney John Endres was appointed to represent Jockisch on those charges. On December 6, 1999, the charges were dismissed; four days later, Jockisch signed a written employment agreement with Schuyler County officials to make undercover drug buys. Under that agreement Jockisch made buys at least between December 28, 1999, and August 4, 2000.\nIn February 2000, domestic battery charges were filed against Jockisch in Brown County. Endres represented Jockisch on those charges as well. On July 7, 2000, Jockisch\u2019s domestic battery charges were dismissed.\nOn June 14, 2000, Jockisch\u2019s van was stopped in Brown County and cannabis was discovered, but the officer did not arrest Jockisch after learning that he was a paid informant for Schuyler County.\nJockisch testified that he purchased cocaine from defendant Daly in a controlled sale on July 24, 2000. The substance Jockisch gave to police tested inconclusive for controlled substances. Jockisch testified that he purchased cocaine from defendant in a second controlled sale on August 2, 2000. That substance tested positive for cocaine. Jockisch testified he purchased cocaine from defendant in a third controlled sale on August 4, 2000. The substance tested positive for cocaine.\nOn November 28, 2000, defendant Daly was charged with two counts of unlawful delivery of a controlled substance (720 ILCS 570/ 401(c) (West 2000)) and one count of unlawful distribution of a lookalike substance (720 ILCS 570/404(b) (West 2000)). Attorney Endres was appointed to represent defendant.\nThe State filed a motion in limine to bar evidence of Jockisch\u2019s misconduct, stating it was unaware of any conviction for a felony or a crime involving dishonesty or false statement in the past 10 years. In response to the State\u2019s motion, Endres filed an offer of proof, reciting that the Schuyler County charges against Jockisch were dismissed December 6, 1999, and that within days of the dismissal \u2014 if not earlier \u2014 Jockisch started purchasing drugs for the Schuyler County sheriffs office. The offer of proof also stated that Endres was advised by the Brown County sheriffs office that Jockisch was doing some work for Brown County police and not to worry about the domestic battery charge, which was then dismissed.\nDuring the hearing on the motion in limine, the former Schuyler County State\u2019s Attorney denied that the charges he dismissed on December 9, 1999, were dismissed in exchange for an agreement for Jockisch to purchase drugs. The State\u2019s Attorney testified the charges were dismissed because (1) although an additional charge, a domestic violence charge, had been contemplated, Jockisch and his then-wife had reconciled; (2) Jockisch\u2019s family members asked for leniency; (3) one of Jockisch\u2019s family members was married to the State\u2019s Attorney\u2019s ex-wife, who interceded on Jockisch\u2019s behalf; (4) Jockisch\u2019s father may have had a permit to raise ginseng; and (5) because of Jockisch\u2019s \u201crather pathetic appearance,\u201d the State\u2019s Attorney felt sorry for him. In response to the court\u2019s questioning, however, the State\u2019s Attorney admitted that he and Endres had advised the court at various times that Jockisch was working for law enforcement in other counties, and the State\u2019s Attorney was considering dismissing the case as a result of that work. The State\u2019s Attorney finally conceded that the work Jockisch had done in other counties may have been a consideration in the December 9, 1999, dismissal. Endres then spoke of the work he had done as Jockisch\u2019s attorney. Endres stated that his memory was bad, that he may have known of Jockisch\u2019s work in other counties, but he had no knowledge of the Schuyler County agreement until about mid-2000.\nThe trial court determined that, with the closeness in times, the dismissal of the cases on December 6 and Jockisch\u2019s beginning to work for the Schuyler County sheriffs office on December 28 were \u201chighly probative that, at least in Mr. Jockisch\u2019s mind, there was some kind of quid pro quo.\u201d The court concluded that Jockisch could be cross-examined about the connection between the cannabis dismissal on December 6, 1999, and the drug purchases, but not the Brown County dismissal of the domestic battery charges \u201cunless you can tie up something specifically that there was a quid pro quo.\u201d\nDuring his opening statement, the State\u2019s Attorney told the jury that Jockisch was a paid informant and may have possessed or used drugs. During the trial, Endres elicited testimony that the Schuyler County cannabis charge had been dismissed, but he did not introduce evidence that the dismissal was the result of an informant deal between law enforcement and Jockisch. Endres also elicited testimony regarding the Brown County cannabis incident, but again made no connection between the officer\u2019s failure to arrest Jockisch and Jockisch\u2019s informant agreement. Nor did Endres impeach Jockisch with the financial arrangement made in Schuyler County, whereby police paid Jockisch for successfully buying drugs from local residents and for his \u201ctime to testify,\u201d but reimbursed him only for expenses if he failed to make a buy. Under the agreement, Jockisch had been paid $5,650 plus $3,050 in living expenses. Another person had testified that she had observed Jockisch using drugs in July and August 2000, but Endres failed to call her as a witness, stating that his calls to her \u201chave not been answered, and I don\u2019t have her here. I\u2019m sorry *** that\u2019s my fault.\u201d\nOn the evidence presented, the jury convicted defendant Daly on all charges. On June 4, 2001, the trial court sentenced him to 4 years\u2019 probation on the Class 1 felony unlawful delivery counts (counts II and III) and 30 months\u2019 probation, including 6 months\u2019 home confinement, on the Class 3 felony unlawful distribution of a look-alike substance (count I). This appeal followed.\nII. ANALYSIS\nDefendant argues that he was denied effective assistance of counsel because his trial counsel, Endres, labored under a per se conflict of interest created by Endres\u2019s prior representation of Jockisch, the State\u2019s chief witness. We agree. We review this issue de novo. People v. Miller, 199 Ill. 2d 541, 544, 771 N.E.2d 386, 387 (2002).\nThe sixth amendment of the Constitution of the United States guarantees the right to effective assistance of counsel. U.S. Const., amend. VI. This right entitles a criminal defendant to the undivided loyalty of counsel, free from conflicting interests or inconsistent obligations. People v. Flores, 128 Ill. 2d 66, 83, 538 N.E.2d 481, 486 (1989). Generally, to succeed on appeal under the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant must demonstrate that he was actually prejudiced. Defendants need not demonstrate prejudice, however, if a per se conflict exists. Miller, 199 Ill. 2d at 545, 771 N.E.2d at 388. The per se conflict rule is designed to avoid (1) unfairness to the defendant, who may not be able to determine whether his representation was affected by the conflict, and (2) putting the honest practitioner in a position where he may be required to choose between conflicting duties. People v. Thomas, 131 Ill. 2d 104, 114, 545 N.E.2d 654, 658 (1989).\nIn a situation where defense counsel has previously represented one of the State\u2019s witnesses, a per se conflict of interest exists if the professional relationship between counsel and the witness is contemporaneous with counsel\u2019s representation of defendant. Thomas, 131 Ill. 2d at 111, 545 N.E.2d at 657. In such a case, \u201c \u2018certain facts about the defense counsel\u2019s status, by themselves, *** engender a disabling conflict.\u2019 (Emphasis added.)\u201d Miller, 199 Ill. 2d at 545, 771 N.E.2d at 388, quoting People v. Lawson, 163 Ill. 2d 187, 211 (1994); People v. Moore, 189 Ill. 2d 521, 538, 727 N.E.2d 348, 357 (2000) (defense counsel\u2019s simultaneous representation of the defendant and the State\u2019s witness creates a per se conflict of interest).\nTo determine whether a per se conflict exists, a court should \u201cbase the determination on a realistic appraisal of defense counsel\u2019s professional relationship to someone other than the defendant under the circumstances of each case.\u201d People v. Hernandez, 246 Ill. App. 3d 243, 249, 615 N.E.2d 843, 848 (1993). A court should not look to the technicalities of the law of offer and acceptance for guidance. Hernandez, 246 Ill. App. 3d at 249, 615 N.E.2d at 848. Where defendant fails to make a showing of a per se conflict of interest, defendant has the burden to show an actual conflict of interest and to demonstrate prejudice. Flores, 128 Ill. 2d at 83, 538 N.E.2d at 487.\nThe Supreme Court of Illinois in People v. Enoch, 146 Ill. 2d 44, 53, 585 N.E.2d 115, 120 (1991), held that defense counsel\u2019s previous representation of the State\u2019s witness in a separate felony matter four years prior to defendant\u2019s murder trial did not establish a contemporaneous professional relationship. In Flores, the court found no contemporaneous professional relationship where defense counsel did not represent the State\u2019s witness at the time of the defendant\u2019s trial or \u201cconcerning\u201d defendant\u2019s trial. Flores, 128 Ill. 2d at 83, 538 N.E.2d at 487. In Hernandez, the Second District held that a contemporaneous professional relationship did not exist between defense counsel and the State\u2019s witness where counsel represented the witness in her divorce case, which terminated long before defendant\u2019s murder trial. Hernandez, 246 Ill. App. 3d at 249, 615 N.E.2d at 848. In these cases, the courts examined the time frame and relevancy of defense counsel\u2019s prior representation of the State\u2019s witness. The State argues that \u201ccontemporaneous professional relationship\u201d means that defense counsel must be engaged in a simultaneous representation of defendant and the State\u2019s witness. We disagree.\nIf Endres had represented Jockisch in a divorce case that terminated long before defendant Daly\u2019s felony trial, it might be possible to conclude there was no per se conflict of interest. That is not our situation, however. Unlike the cases cited by the State, Endres\u2019s representation of Jockisch was in a matter that concerned defendant\u2019s trial, a matter of significant relevance to defendant\u2019s trial. This relevance is shown by the fact that Endres, to properly represent Daly, needed to cross-examine Jockisch about matters that arose during the very time that Endres was representing Jockisch \u2014 specifically, the charges against Jockisch, the dismissal of those charges, and any agreement or arrangement Jockisch made with law-enforcement authorities to achieve dismissal. Clearly, given that Endres was representing Jockisch at the time, he could not properly cross-examine Jockisch about any of these matters. Thus, another way of looking at this situation is to view Endres\u2019s professional relationship with Jockisch as continuing indefinitely, at least to the extent that, in any subsequent case, Endres would ever be called upon to cross-examine Jockisch about matters occurring during the time Endres represented Jockisch. Further, where charges are dismissed on July 7 in the informant\u2019s case, and the informant allegedly makes a purchase from the defendant on July 24, resulting in charges being filed against the defendant on November 28, it is not accurate to say the informant\u2019s case terminated \u201clong before\u201d defendant\u2019s felony trial.\nAlthough it seems likely, especially given the difficulty the State\u2019s Attorney and Endres had in remembering the transaction, that the December 10, 1999, agreement between the Schuyler County sheriff and Jockisch was in exchange for the December 6, 1999, dismissal of charges, that fact is not controlling. It is clear that the charges were dismissed, following negotiations by Endres, because of Jockisch\u2019s status as an informant. Endres\u2019s negotiations resulted in Jockisch being out on the street, attempting to buy drugs from defendant. A successful prosecution of defendant would show the wisdom of dismissing the charges against Jockisch; an unsuccessful prosecution would cast doubt on the wisdom of that dismissal. Endres was placed in the position of attacking his work. A professional relationship is ongoing, even if formal representation has ended, if circumstances exist such that the attorney-client privilege may be violated. Endres could not be expected to impeach Jockisch with information that would void Jockisch\u2019s informant agreements and perhaps lead to retrial on the dismissed charges.\nEndres\u2019s prior representation of Jockisch might affect Endres\u2019s performance in ways difficult to detect and demonstrate. People v. Woidtke, 313 Ill. App. 3d 399, 409, 729 N.E.2d 506, 513 (2000). For example, there is a danger that Endres would fail to conduct a rigorous cross-examination for fear of misusing confidential information. An attorney who represented a witness is likely, in cross-examining that witness, to avoid areas where he has personal knowledge, areas where an attorney-client privilege might exist. The State also has an interest in preventing defense counsel from cross-examining a critical State witness on matters that were the subject of a prior attorney-client relationship. The situation is \u201ctoo fraught with the dangers of prejudice, prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a violation of [defendant\u2019s] rights whether or not it in fact influences the attorney or the outcome of the case.\u201d People v. Stoval, 40 Ill. 2d 109, 113, 239 N.E.2d 441, 443 (1968).\nIn a per se conflict of interest case, we will reverse the convictions unless defendant has been made aware of the conflict and has knowingly waived his right to conflict-free counsel. Woidtke, 313 Ill. App. 3d at 409, 729 N.E.2d at 513. In this case, the record does not indicate and the State does not allege waiver. We are compelled to reverse the trial court and remand for a new trial. Accordingly, we do not reach defendant\u2019s various other arguments, including an ineffective-assistance-of-counsel claim based on actual conflict, failure to object to \u201crecycled\u201d jurors, failure to impeach Jockisch, failure to object to hearsay, and eliciting damaging testimony.\nIII. CONCLUSION\nThe same issues that require reversal in the case of defendant Daly are also present in the cases of defendants Umphryes, Thompson, Wickert, and Jones. In other words, Endres was called upon in his representation of each of these other defendants, just as he was called upon in his representation of Daly, to cross-examine Jockisch about matters occurring during the time Endres was representing Jockisch. For the reasons we earlier explained, this is not constitutionally permissible. Reversal and remand are required in all cases. The per se conflict of interest in these cases endangered defendants\u2019 constitutional rights. Accordingly, we reverse the trial court and remand for a new trial with directions.\nReversed and remanded with directions.\nKNECHT and STEIGMANN, JJ., concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "Daniel D. Yuhas, Jacqueline L. Bullard, Jenifer L. Johnson, Robert N. Markfield (argued), and Susan M. William, all of State Appellate Defender\u2019s Office, of Springfield, for appellants.", "Scott J. Butler, State\u2019s Attorney, of Rushville (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PATRICK DALY, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JON P. UMPHRYES, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRACY M. THOMPSON, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID J. WICKERT, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEWIS E. JONES, Defendant-Appellant.\nFourth District\nNos. 4 \u2014 01\u20140575, 4 \u2014 01\u20140576, 4 \u2014 01\u20140577, 4 \u2014 01\u20140657, 4 \u2014 02\u20140823 cons.\nArgued May 13, 2003.\nOpinion filed June 30, 2003.\nDaniel D. Yuhas, Jacqueline L. Bullard, Jenifer L. Johnson, Robert N. Markfield (argued), and Susan M. William, all of State Appellate Defender\u2019s Office, of Springfield, for appellants.\nScott J. Butler, State\u2019s Attorney, of Rushville (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0372-01", "first_page_order": 390, "last_page_order": 397 }