{ "id": 3383315, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL DRYSDALE, Defendant-Appellant", "name_abbreviation": "People v. Drysdale", "decision_date": "1977-07-15", "docket_number": "No. 76-218", "first_page": "667", "last_page": "674", "citations": [ { "type": "official", "cite": "51 Ill. App. 3d 667" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "258 N.E.2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896464 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0158-01" ] }, { "cite": "270 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 314", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2533478 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0314-01" ] }, { "cite": "299 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 349", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5343887 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0349-01" ] }, { "cite": "263 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 496", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2825677 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0496-01" ] }, { "cite": "363 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 702", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3370445 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0702-01" ] }, { "cite": "225 N.E.2d 445", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 2d 330", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2543376 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0330-01" ] }, { "cite": "265 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899177 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0266-01" ] }, { "cite": "344 N.E.2d 579", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 556", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2634679 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0556-01" ] }, { "cite": "364 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812309 ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0127-01" ] }, { "cite": "233 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857225 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0066-01" ] }, { "cite": "107 N.E. 165", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "265 Ill. 448", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4780233 ], "opinion_index": 0, "case_paths": [ "/ill/265/0448-01" ] }, { "cite": "362 N.E.2d 122", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 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App. 3d", "case_ids": [ 3368126 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0582-01" ] }, { "cite": "361 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "66 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464500 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/66/0162-01" ] }, { "cite": "263 N.E.2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2898138 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0149-01" ] }, { "cite": "239 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "40 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856293 ], "weight": 2, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0109-01" ] }, { "cite": "298 F.2d 461", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 229545 ], "opinion_index": 0, "case_paths": [ "/f2d/298/0461-01" ] }, { "cite": "315 U.S. 60", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374640 ], "weight": 3, "year": 1962, "opinion_index": 0, "case_paths": [ "/us/315/0060-01" ] } ], "analysis": { "cardinality": 747, "char_count": 14953, "ocr_confidence": 0.866, "pagerank": { "raw": 2.680475390434494e-07, "percentile": 0.8266246410505014 }, "sha256": "8f5c5bf8ad5ae8ed11207695b7bc659c8fe672bd2ed179127c5c8aebf3b8d33a", "simhash": "1:2e1039c443a6eff2", "word_count": 2421 }, "last_updated": "2023-07-14T14:38:54.645684+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. DANIEL DRYSDALE, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nDefendant, Daniel Drysdale, was charged in the circuit court of Franklin County with the offenses of burglary and theft (over *150). Following a jury trial, he was found innocent of burglary and guilty as charged of theft. Defendant appeals the judgment entered by the trial court and he presents two questions for review: (1) whether the court erred in refusing a tendered accomplice testimony instruction; and (2) whether defendant was denied the effective assistance of counsel where the attorney had formerly represented a State\u2019s witness.\nAt trial the State\u2019s evidence showed that on October 25, 1975, it was discovered that glass had been removed from a window at a lumber company and that various power tools and like items were missing from a display rack. On the following day, Police Officer James Pritchard had a conversation with Carl Overton during which Pritchard asked Overton if he had any information about the break-in. Overton stated that he had no information on the matter but that he would contact Pritchard if he learned of anything. Thereafter, on the evening of October 29, 1975, while Overton was walking in front of defendant\u2019s home, defendant called to him and asked him if he would want a power drill. Defendant told Overton that he had some power tools hidden up the road. Overton testified that he pretended interest in the offer in order to be of assistance to the police. Defendant led Overton to a field where various items were hidden. These were later identified at trial as those taken from the lumber company. Eventually, the items were brought to Overton\u2019s garage in order to protect them from the weather and so that Overton could attempt to sell them for defendant. At approximately 3 a.m. defendant departed and around 4:30 a.m. Overton called Officer Pritchard. Overton testified that he waited before making the call until defendant, who lived less than a block away, would have been asleep. Subsequently, Overton showed the police the items in his garage and the field where they had been originally hidden.\nDefendant presented no evidence.\nSince we find the issue to be dispositive of this appeal, we first turn to defendant\u2019s second contention that reversal here is required as a result of his trial counsel\u2019s conflict of interest.\nAt trial defendant was represented by privately retained counsel, Paul Caldwell. During Caldwell\u2019s cross-examination of Overton it was revealed that three years previously Caldwell had been appointed to represent Overton in an involuntary commitment proceeding. Evidence was also introduced consisting of a petition for emergency hospitalization, dated January 16, 1973, which alleged that Overton was in need of mental treatment; an order, dated January 19, 1973, finding Overton in need of mental treatment and directing his immediate hospitalization; a motion by Caldwell, dated January 19, 1973, for attorney\u2019s fees in connection with his representation of Overton at the involuntary commitment proceeding; and lastly, a notice showing Overton\u2019s absolute discharge on March 22, 1974.\nDefendant contends for the first time in this appeal that Caldwell\u2019s commitments stemming from his past representation of Overton and his present representation of defendant constitutes a per se conflict of interest since the general subject matter of Overton\u2019s involuntary commitment. was proper evidence with which Overton could be impeached and hence Caldwell's ability to effectively cross-examine Overton was limited. The State responds, in effect, by arguing that the record does not demonstrate any actual conflict of interest nor, in any event, is any resulting prejudice shown thereby.\nAt issue is whether defendant was denied the effective assistance of counsel due to a per se conflict of interest. The fundamental right to the effective assistance of counsel requires that the person represented shall receive the undivided loyalty of counsel. (Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457.) As the court stated in Porter v. United States (5th Cir. 1962), 298 F.2d 461, 463:\n\u201cThe Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents \u2014 as\" a vigorous advocate having the single aim of acquittal by all means fair and honorable \u2014 are hobbled or fettered or restrained by commitments to others.\u201d\nAn analysis of the cases in Illinois leads us to conclude that a per se conflict of interest will be found whenever there is a showing that a defense counsel\u2019s past or present commitment to others raises the possibility of an unwillingness or inability to effectively represent a defendant and in such a situation a reversal will be warranted even without a showing of any actual prejudice resulting thereby.\nIn People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441, the defendant was convicted of the burglary and theft of a jewelry store. The store and its owner were clients of the law firm of the court appointed defense counsel. Moreover, the defense attorney, himself, had previously represented the store and its owner in unrelated matters. On appeal, the defendant contended that he was denied effective representation. The court in reversing the judgment stated:\n\u201cThere is no showing that the attorney did not conduct the defense of the accused with diligence and resoluteness, but we believe that sound policy disfavors the representation of an accused, especially when counsel is appointed, by an attorney with possible conflict of interests. It is unfair to the accused, for who can determine whether representation was affected, at least, subliminally, by the conflict. Too, it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later charges that his representation was not completely faithful. In a case involving such a conflict there is no necessity for the defendant to show actual prejudice.\u201d 40 Ill. 2d 109, 113, 239 N.E.2d 441, 444.\nIn Stoval the \u201ccommitment to others\u201d primarily consisted of the law firm\u2019s representation of the store and its owner in unrelated matters. This commitment raised a potential conflict of interest since, the court felt, the attorney might hesitate to jeopardize the good graces and future legal business of his firm\u2019s client who was the victim of the crime by a vigorous defense of the defendant. Hence, even though actual prejudice was not shown, the mere possibility of an unwillingness to effectively represent the defendant was held sufficient to require the granting of a new trial. See also People v. Meyers, 46 Ill. 2d 149, 263 N.E.2d 81.\nIn People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569, the defendant\u2019s court appointed attorney had made three court appearances on behalf of the State in the same proceedings in which he later assumed the duties of defense counsel. The court, while noting that there appeared to be no continuing commitments between the attorney and the State and thus there was no concurrent representation of two clients with conflicting interests, nonetheless found that the past commitment was such as to raise a potential conflict of interest. The conflict arose from the possible unwillingness or possible \u201csubliminal reluctance\u201d of the attorney to attack any of the actions or decisions he might have been previously involved with on behalf of the prosecution. Moreover, the court found it neither \u201cnecessary or desirable\u201d to inquire into the precise nature and extent of the attorney\u2019s prior personal involvement in the case for the prosecution. That there had been a prior involvement was per se a conflict of interest requiring reversal although no prejudice was shown. See also People v. Wyatt, 47 Ill. App. 3d 582, 362 N.E.2d 122 (the court following Kester held a single appearance by the attorney on behalf of the State was per se a conflict of interest without regard to the nature of the involvement).\nWhile in Stoval and Kester the conflict arose where there was found to exist a potential unwillingness to effectively represent the defendant, such a conflict may also arise from a potential inability to effectively represent the defendant due to the attorney\u2019s commitment to others. Once an attorney has been retained by a client he cannot serve an interest adverse to that client regarding the same general subject matter of that employment even after the termination of his services. (People v. Gerold, 265 Ill. 448, 107 N.E. 165.) Thus where the same attorney represents a defendant and a co-defendant whose interests are \u201cantagonistic\" reversal is warranted. (People v. Ware, 39 Ill. 2d 66, 233 N.E.2d 421; see also People v. Coslet, 67 Ill. 2d 127, 364 N.E.2d 67, where the same attorney represented the defendant charged with the murder of her husband and the administrator of her husband\u2019s estate.) In such a situation, even where the attorney\u2019s services to the co-defendant have been terminated but where the co-defendant testifies against the defendant, there exists the potential of an inability to effectively cross-examine the co-defendant due to the continuing commitment of the attorney not to disclose any confidence given him by his former client. People v. Halluin, 36 Ill. App. 3d 556, 344 N.E.2d 579; People v. Johnson, 46 Ill. 2d 266, 265 N.E.2d 869.\nIn the case at bar, the defense attorney, Caldwell, represented Overton in a prior involuntary commitment proceeding resulting in an adjudication that Overton was in need of mental treatment. The general subject matter of this previous employment was a proper subject for cross-examination and impeachment in the instant case. (People v. Dixon, 81 Ill. App. 2d 330, 225 N.E.2d 445.) Caldwell, however, was subject to a continuing commitment not to disclose any confidence given him by his former client. As such, there existed a per se conflict of interest denying defendant effective representation arising from the possible inability of Caldwell to effectively cross-examine Overton. Although no prejudice is shown in the record by the potential conflict of interest, as pointed out by the State, we believe that if an exception is to be carved out of the above cited cases and the rule embraced therein, such exception is not to be made by this Court. We also note that while defendant was aware of his attorney\u2019s prior representation of Overton, the record does not show that defendant was in any manner admonished as to the significance of the potential conflict. Thus he cannot be held to have waived his right to assert this issue on appeal. (People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569.) Accordingly, we reverse defendant\u2019s conviction and remand for a new trial.\nSince we believe the issue may again arise on retrial, we next will address defendant\u2019s first contention.\nAt trial, defendant tendered Illinois Pattern Jury Instruction, Criminal, No. 3.17, which was refused by the trial court. It states:\n\u201cAn accomplice witness is one who testified that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.\u201d\nOn appeal defendant contends that the court erred in refusing the instruction. In People v. Riggs, 48 Ill. App. 3d 702, 363 N.E.2d 137 we stated:\n\u201cThe instruction is properly given when the accomplice testifies on behalf of the State implicating a defendant. (People v. Howard, 130 Ill. App. 2d 496, 263 N.E.2d 633.) In such a situation, the purpose of an admonishment of caution is apparent. Due to the relationship of the witness and the State, there may be a strong motivation to testify falsely for the accomplice who seeks, hopes or expects lenient treatment by the State in return for favorable testimony.\u201d\nThe instruction, however, is properly refused when there is no evidence that the witness is an accomplice in the crime. (People v. Barker, 13 Ill. App. 3d 349, 299 N.E.2d 365; People v. Hunt, 132 Ill. App. 2d 314, 270 N.E.2d 243.) An accomplice has been defined as one who could himself have been indicted for the offense as either a principal or accessory. (People v. Nowak, 45 Ill. 2d 158, 258 N.E.2d 313.) IPI Criminal No. 3.17, states that an accomplice witness \u201cis one who testifies that he was involved in the commission of a crime with the defendant.\u201d\nIn the case at bar, defendant argues that Overton\u2019s possession of the stolen property at the time the police recovered the property gave rise to an inference that Overton was involved in the theft because, he asserts, the possession thereof was recent, exclusive and unexplained. The argument is specious.\nOverton\u2019s possession of the stolen property was fully explained and the explanation was corroborated and uncontradicted. Overton testified that he had associated himself with defendant and had acted as a pretended confederate in order to obtain evidence and to prevent defendant from effecting his criminal purposes. This assertion was strongly corroborated by the evidence that he had informed the police within a reasonable time, under the circumstances, after obtaining the evidence used to prosecute defendant. In fact, the police recovered the stolen property only because of his phone call. Moreover, his description of his activities on the evening in question was corroborated by evidence that an investigation on the next morning of the field where the stolen property had originally been hidden showed marks and indentations in the weeds and footprints on the muddy ground all of which were consistent with Overton\u2019s testimony. While normally an accomplice acknowledges himself to have been involved in the crime, Overton made no such acknowledgment and he denied in effect any complicity in the theft. Defendant contends that it was for the jury to accept or reject Overton\u2019s explanation of his possession of the stolen property. However, the record shows that the explanation was uncontradicted. Since there was no evidence that Overton was an accomplice, the court properly refused the admonishment of caution.\nThe judgment of the circuit court of Franklin County is reversed and the cause is remanded for a new trial.\nReversed and remanded for a new trial.\nCARTER, P. J., and G. MORAN, J., concur.", "type": "majority", "author": "Mr. JUSTICE EBERSPACHER" } ], "attorneys": [ "Ralph Ruebner and Allen L. Wiederer, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Terrence J. Hopkins, State\u2019s Attorney, of Benton (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL DRYSDALE, Defendant-Appellant.\nFifth District\nNo. 76-218\nOpinion filed July 15, 1977.\nRalph Ruebner and Allen L. Wiederer, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nTerrence J. Hopkins, State\u2019s Attorney, of Benton (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0667-01", "first_page_order": 689, "last_page_order": 696 }