                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Murphy, 2013 IL App (4th) 111128




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ELLIOTT T. MURPHY, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-11-1128


Filed                      May 9, 2013


Held                       Defendant’s convictions for first degree murder and attempted first
(Note: This syllabus       degree murder were reversed and the cause was remanded for a new trial
constitutes no part of     on the ground that defense counsel’s contemporaneous representation of
the opinion of the court   defendant and a prosecution witness in an unrelated case constituted a per
but has been prepared      se conflict of interest.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Macon County, No. 09-CF-1471; the
Review                     Hon. Timothy J. Steadman, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                     and Alan D. Goldberg and Charles W. Hoffman (argued), both of State
                           Appellate Defender’s Office, of Chicago, for appellant.

                           Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, Robert J.
                           Biderman, and Anastacia R. Brooks (argued), all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Knecht concurred in the
                           judgment and opinion.



                                             OPINION

¶1          A jury found defendant, Elliott T. Murphy, guilty of first degree murder (720 ILCS 5/9-
        1(a)(1) (West 2008)) and attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a) (West
        2008)), for which the trial court sentenced him to consecutive prison terms of 55 years and
        25 years. Defendant appeals. Because trial counsel labored under a per se conflict of interest,
        we reverse defendant’s convictions and remand this case for a new trial.

¶2                                       I. BACKGROUND
¶3                                          A. The Charges
¶4          In September 2009, the State charged defendant and several other persons with first
        degree murder (720 ILCS 5/9-1(a)(1) (West 2008)), attempt (first degree murder) (720 ILCS
        5/8-4(a), 9-1(a) (West 2008)), aggravated battery (720 ILCS 5/12-4(a) (West 2008)), robbery
        (720 ILCS 5/18-1 (West 2008)), and mob action (720 ILCS 5/25-1(a)(1) (West 2008)). The
        charges arose out of two incidents that took place in Decatur on August 24, 2009. In the first
        incident, a group of teenage boys battered and fatally injured Jerry Newingham near 540
        West Sawyer Street. The second incident occurred shortly thereafter, in which they battered
        and severely injured Kevin Wilson in nearby Garfield Park. Allegedly, defendant was one
        of the attackers of Newingham and Wilson. Because defendant was 16 at the time of the
        attacks and hence was over the statutory age of 15, the State prosecuted him in adult criminal
        court pursuant to section 5-130(1)(a) of the Juvenile Court Act of 1987 (705 ILCS 405/5-
        130(1)(a) (West 2008)).

¶5                       B. Shawn Stanley’s Testimony in the Jury Trial
¶6         In defendant’s trial, which took place in August 2011, the State called Shawn Stanley.
        During direct examination, Stanley testified he had no recollection seeing Wilson being

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       beaten on August 24, 2009, or of giving a statement to Detective Barry Hitchens regarding
       the beating.
¶7          Then, without objection, the prosecutor played for the jury People’s exhibit No. 29, a
       videotape of the statement Stanley had given to Hitchens regarding the beating of Wilson.
       The State presented this statement as substantive evidence pursuant to section 115-10.1 of
       the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2008)). In the
       statement, Stanley told Hitchens that on August 24, 2009, he was sitting in a pavilion in
       Garfield Park with his girlfriend and that a man, who appeared to be drunk and asleep, was
       sitting at another table in the pavilion. A group of about 12 teenage boys came to the park
       and surrounded the man. The man stood up and tried to leave, but one of the boys punched
       him in the face, knocking him down. Then another boy stomped on the man’s head. Several
       other boys joined in, stomping on his stomach, ribs, and face. Then the attackers ran out of
       the park.
¶8          In some photographs that Hitchens showed him, Stanley identified five of the attackers,
       including defendant. Stanley told Hitchens that defendant had been “the main one” stomping
       on the man; defendant had stomped on the man’s face at least six or seven times.
¶9          After the prosecutor played for the jury the video recording of Stanley’s statement to
       Hitchens, the assistant public defender, Howard Baker, cross-examined Stanley on
       statements he purportedly made to a Decatur park district ranger, Del Taylor, on the day of
       Wilson’s beating. In his cross-examination, Baker brought out inconsistencies between what
       Stanley told Taylor and what Stanley told Hitchens weeks later. Bringing out the
       inconsistencies between these statements was all Baker did in his cross-examination of
       Stanley.

¶ 10                          C. The Verdicts and the Sentences
¶ 11      The jury found defendant guilty of murdering Newingham and of attempting to murder
       Wilson.
¶ 12      In December 2011, the trial court sentenced defendant to consecutive prison terms of 55
       years and 25 years.

¶ 13         D. Appellate Counsel’s Discovery That Baker Also Represented Stanley
                     for a Time During the Pretrial Phase of Defendant’s Case
¶ 14        The office of the State Appellate Defender (OSAD) was appointed to represent defendant
       in this appeal, and while working on the appeal, OSAD learned that, during the pretrial phase
       of defendant’s case, Baker also represented Stanley in a separate criminal case. OSAD
       provides the following chronology.
¶ 15        On September 23, 2009, the trial court appointed Baker to represent defendant.
¶ 16        On October 1, 2009, Stanley’s name appeared in a discovery disclosure by the State, a
       disclosure filed with the trial court and served on Baker.
¶ 17        On November 23, 2009, in People v. Stanley, Macon County case No. 2009-CF-1816,
       the State charged Stanley with first degree murder, armed robbery, armed violence,

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       aggravated battery with a firearm, and unlawful possession of cannabis with the intent to
       deliver it.
¶ 18        On December 2, 2009, Baker entered his appearance on Stanley’s behalf in Macon
       County case No. 2009-CF-1816.
¶ 19        On April 1, 2010, Stanley’s name appeared again in a discovery disclosure by the State
       in the present case, a disclosure filed with the trial court and served on Baker.
¶ 20        On April 15, 2010, Baker represented Stanley in a guilty-plea hearing in Macon County
       case No. 2009-CF-1816 (An earlier docket entry, dated January 27, 2010, says: “Cause
       assigned on the trial call of Judge White.”). Stanley entered negotiated pleas of guilty to
       aggravated battery with a firearm and unlawful possession of cannabis with the intent to
       deliver it. The charges of murder, armed robbery, and armed violence were dismissed. The
       trial court sentenced Stanley to concurrent prison terms of six years and four years.
¶ 21        On August 12, 2011, the State called Stanley as a prosecution witness in defendant’s trial,
       with Judge Steadman presiding. Baker still was representing defendant, and he cross-
       examined Stanley.

¶ 22                                       II. ANALYSIS
¶ 23                                A. Our Standard of Review
¶ 24       All the facts germane to this appeal appear to be undisputed. “When the record shows
       that the facts are undisputed, the issue of whether a per se conflict exists is a legal question
       that this court reviews de novo.” People v. Fields, 2012 IL 112438, ¶ 19.

¶ 25                   B. The Two Primary Precedents Under Discussion
                               in This Appeal: Dopson and Fields
¶ 26       Defendant argues that Baker “operated under a per se conflict of interest under the
       controlling precedent of [the Fourth District’s] decision in People v. Dopson, 2011 IL App
       (4th) 100014, as attorney Baker contemporaneously represented [defendant] in the present
       case, and represented prosecution witness Shawn Stanley in an unrelated criminal case.”
¶ 27       The State counters that, in invoking our decision in Dopson, defendant ignores or
       overlooks the supreme court’s more recent decision in Fields, which, according to the State,
       destroys an essential presupposition of Dopson and thereby renders that case invalid as a
       precedent.
¶ 28       To understand these opposing arguments, one must understand Dopson and Fields.

¶ 29                                        1. Dopson
¶ 30       In Dopson, the defendant alleged in his postconviction petition that his appointed trial
       counsel, John Wright, had provided ineffective assistance in that, while representing him,
       Wright represented Anna Trotter, the confidential informant who eventually testified against
       the defendant in his trial. Dopson, 2011 IL App (4th) 100014, ¶ 12. This concurrent
       representation did not exist throughout the defendant’s entire case. Rather, there merely was

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       a period of overlap during the pretrial phase of the defendant’s case, a period during which
       Wright represented both Trotter in two criminal cases against her as well as the defendant
       in his own separate case. By the time of the defendant’s trial, however, Trotter’s cases had
       been transferred to a different assistant public defender, Jim Tusek. Id. ¶ 7. Wright continued
       representing the defendant, and he cross-examined his former client, Trotter, in the
       defendant’s trial. Id. ¶ 9.
¶ 31       The defendant argued he had been “denied his right to effective assistance of counsel
       because his attorney [(Wright)] was operating under a per se conflict of interest arising from
       his prior and contemporaneous representation of Trotter.” Id. ¶ 12. We quoted the principle
       to which the defendant was alluding: “A per se conflict exists when ‘defense counsel has a
       prior or contemporaneous association with the victim, the prosecution, or an entity assisting
       the prosecution.’ ” Id. ¶ 25 (quoting People v. Taylor, 237 Ill. 2d 356, 374 (2010)). “In such
       instances,” we said, “no more than defense counsel’s prior or contemporaneous
       representation of the State’s witness is necessary to establish a per se conflict.” Id. ¶ 25.
¶ 32       The State argued, however, that two circumstances militated against the defendant’s
       claim that Wright had contemporaneously represented him and Trotter: (1) Wright no longer
       was representing Trotter when the defendant’s case went to trial, and (2) Wright’s prior
       representation of Trotter did not involve any charges or facts that were relevant to, or
       “ ‘commingled’ ” with, the defendant’s case. Id. ¶ 26.
¶ 33       We responded that the State was taking too narrow a view of “ ‘contemporaneous
       representation’ ” and was overlooking the potential for a clash of loyalties. Id. ¶ 28. One of
       the purposes of the per se conflict-of-interest rule was to ensure that defense counsel’s cross-
       examination and impeachment of the State’s witness was “thorough and unconstrained” (id.
       ¶ 29), “unhindered by the need to avoid privileged attorney-client information” (id. ¶ 27).
       Because the attorney-client privilege continued even after formal representation ended (id.),
       limiting the meaning of “contemporaneous representation” to “contemporaneous
       representation during trial” would have failed to ensure a zealous and uninhibited cross-
       examination of the State’s witness: a pretrial attorney-client relationship with the witness
       could make for a timid cross-examination the same way a continuing attorney-client
       relationship with the witness could do so (id. ¶ 28).
¶ 34       This was not to suggest that, in order for the per se conflict-of-interest rule to be
       applicable, there actually had to be privileged attorney-client information that defense
       counsel, to the defendant’s detriment, refrained from eliciting from the State’s witness during
       cross-examination. “Whether such information existed, or would have been useful to the
       defense, [was] irrelevant because such questions concern[ed] whether the conflict resulted
       in prejudice and *** prejudice [was] beyond the scope of the per se conflict rule.” Id. ¶ 27.
       The purpose of the per se conflict rule was to avoid not only actual prejudice but also the
       ambiguity of whether prejudice had resulted. We said: “The per se conflict rule is intended
       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.” (Internal quotation
       marks omitted.) Id. ¶ 23.


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¶ 35       Wright might not have consciously chosen between conflicting duties, given his
       testimony, in the postconviction hearing, that “he did not recall whether he recognized
       Trotter as his former client at the time of [the] defendant’s trial.” Id. ¶ 34. Even so, to remain
       faithful to the purpose of the rule, we “impute[d] to [Wright] his recognition of the identity
       of those he [had] represent[ed], even after formal representation end[ed].” Id. Again, the
       purpose was to avoid not only actual prejudice, but ambiguity.
¶ 36       We summed up:
                “Here, the only question before us is whether Wright’s representation of Trotter,
           clearly an ‘entity assisting the prosecution,’ was ‘prior or contemporaneous’ to Wright’s
           representation of [the] defendant. Taylor, 237 Ill. 2d at 374, 930 N.E.2d at 971. The
           breadth of the per se conflict-of-interest rule reflects the importance of removing doubt
           in the minds of the convicted that they were afforded loyal, unconflicted representation
           at trial.” Id. ¶ 35.
       To remove any such doubt, we applied the per se conflict rule on the basis of “a realistic
       appraisal of defense counsel’s professional relationship to someone other than the
       defendant,” not on the basis of “technicalities of the law, such as whether or not the dual
       representation existed at the moment the trial commenced.” (Internal quotation marks
       omitted.) Id. We concluded that Wright had been in a per se conflict of interest and that the
       defendant therefore had been denied the effective assistance of counsel. Id.

¶ 37                                           2. Fields
¶ 38       In Fields (which the supreme court decided after Dopson), the defendant was charged
       with sexually assaulting K.N.J. Fields, 2012 IL 112438, ¶ 4. The defendant previously was
       convicted of sexual offenses against another minor, C.S., and in the subsequent case, in
       which K.N.J. was the victim, the State called C.S. to prove the defendant’s propensity to
       commit the charged offenses. Id. ¶ 7. The trial court had ruled this propensity evidence to be
       admissible under section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS
       5/115-7.3 (West 2006)). Id. ¶ 5.
¶ 39       In June 2008, the jury found the defendant guilty of the sexual offenses against K.N.J.
       Id. ¶ 8.
¶ 40       On appeal, the defendant argued ineffective assistance. He argued that his trial counsel,
       Edward Woller, had been in a per se conflict of interest because he served as guardian ad
       litem for C.S. in a case that ended in 2002 or 2003. Id. ¶ 9.
¶ 41       The guardian ad litem proceedings had no relation to either of the criminal cases against
       the defendant. Id. Nevertheless, the appellate court held that Woller had indeed labored under
       a per se conflict of interest and that the defendant therefore should receive a new trial. Id.
       ¶ 10. The appellate court noted that there were three situations in which a per se conflict of
       interest existed: “(1) where defense counsel has a prior or contemporaneous association with
       the victim, the prosecution, or an entity assisting the prosecution; (2) where defense counsel
       contemporaneously represents a prosecution witness; and (3) where defense counsel was a
       former prosecutor who had been personally involved in the prosecution of the defendant.”
       Id. See also Taylor, 237 Ill. 2d at 374 (“This court has identified three situations where a per

                                                  -6-
       se conflict exists: (1) where defense counsel has a prior or contemporaneous association with
       the victim, the prosecution, or an entity assisting the prosecution; (2) where defense counsel
       contemporaneously represents a prosecution witness; and (3) where defense counsel was a
       former prosecutor who had been personally involved in the prosecution of defendant.”).
       According to the appellate court, the first of those three situations existed: C.S. was an
       “entity” assisting the prosecution, and Woller had a prior association with her in that he had
       served as her guardian ad litem. Fields, 2012 IL 112438, ¶ 10.
¶ 42        The supreme court disagreed with the appellate court. Id. ¶ 20. The term “entity,” the
       supreme court explained, did not mean an individual person (id. ¶ 30); rather, it meant a
       nonindividual, such as a municipality (id. ¶ 33). C.S. was not an “entity” for purposes of the
       first situation in Taylor, and the second situation negated the defendant’s theory of a per se
       conflict because it required “contemporaneous representation” as opposed to prior
       representation. Id. ¶ 29. The supreme court observed: “Illinois supreme court case law has
       clearly and consistently held that, in cases where defense counsel has represented a State’s
       witness, a per se conflict of interest will not be held to exist unless the professional
       relationship between the attorney and the witness is contemporaneous with defense counsel’s
       representation of the defendant.” Id. ¶ 20. Woller did not represent C.S. at the same time he
       represented the defendant, and his prior representation of her did not create a per se conflict
       of interest. Id. ¶ 35.

¶ 43                            C. The Effect of Fields Upon Dopson
¶ 44       In the State’s view, our decision in Dopson “lacks continuing vitality after Fields because
       Dopson erroneously considered a witness to be an ‘entity assisting the prosecution’ and
       thereby allowed a per se conflict to arise from a counsel’s ‘prior’ representation of a
       prosecution witness.”
¶ 45       It is true that, in Dopson, we described Trotter as “clearly an ‘entity assisting the
       prosecution’ ” (Dopson, 2011 IL App (4th) 100014, ¶ 35 (quoting Taylor, 237 Ill. 2d at
       374)), and it is true that, in light of the supreme court’s subsequent decision in Fields, a
       witness for the State does not qualify as an entity assisting the prosecution (Fields, 2012 IL
       112438, ¶ 30). So, here in a nutshell is the problem: We held, in Dopson, that the facts in that
       case conformed to the first situation described in Taylor: “defense counsel has a prior or
       contemporaneous association with *** an entity assisting the prosecution” (Taylor, 237 Ill.
       2d at 374), but Fields thereafter kicked out an essential underpinning of that holding–i.e., the
       presupposition that Trotter was an “entity”–causing the holding to collapse.
¶ 46       Did our discussion, in Dopson, of “contemporaneous representation” survive the
       collapse? See Dopson, 2011 IL App (4th) 100014, ¶¶ 27-28. The answer appears to be no.
       In Dopson, we did not make a rigorous distinction between prior and contemporaneous
       representation; we referred to the two in the alternative (id. ¶¶ 25, 35). We reasoned that,
       even though the defense counsel’s “formal representation” of the State’s witness had ended
       by the time of the defendant’s trial, the defense counsel was still, in a manner of speaking,
       “representing” the witness by observing the ongoing attorney-client privilege, which possibly
       hindered the defense counsel when cross-examining the State’s witness. Id. ¶¶ 27-28. That


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       reasoning does not survive Fields, either, and here is why. In Fields, the supreme court
       rejected the notion that the defense counsel’s prior representation of the State’s witness
       created a per se conflict of interest. Fields, 2012 IL 112438, ¶ 29 (“[T]his court has always
       held that a defense counsel’s representation of a prosecution witness constitutes a per se
       conflict of interest when the representation is contemporaneous with defense counsel’s
       representation of the defendant, but is not a per se conflict of interest when defense counsel’s
       representation of the witness is prior to counsel’s representation of defendant.”). In the case
       of any such prior representation, defense counsel would remain bound by the ongoing
       attorney-client privilege. One must infer, then, from Fields, that this ongoing attorney-client
       privilege does not create a per se conflict of interest. See also People v. Schaefer, 188 Ill.
       App. 3d 317, 322 (1989) (“[T]he mere possession of confidential information does not
       preclude an effective cross-examination of a codefendant witness; furthermore, the burden
       of demonstrating the existence and materiality of the alleged confidential information lies
       with the defendant. [Citation.] Mere hypothetical or speculative conflicts will not suffice.”).
¶ 47       Thus, we agree with the State that Fields has invalidated our analysis in Dopson. Even
       so, we arrived at the correct result in Dopson, as we will explain.

¶ 48         D. According to Case Law, Must the Contemporaneous Representation
                 Occur During the Trial, as Opposed to During the Pretrial Phase,
                                 for There To Be a Per Se Conflict?
¶ 49       The State says: “After Fields, it should be undisputed that a per se conflict requires
       ‘contemporaneous’ representation by a counsel of a defendant and a prosecution witness. The
       problem then becomes identifying what the word ‘contemporaneous’ actually means in this
       context through examining how courts have applied that requirement in various factual
       scenarios.”
¶ 50       Actually, there is no question as to what the word “contemporaneous” means; it means
       “existing, occurring, or originating at the same time.” Merriam-Webster’s Collegiate
       Dictionary 249 (10th ed. 2000). More precisely, the question is, When the supreme court
       says–over and over in Fields, for example–that a per se conflict of interest exists where
       defense counsel contemporaneously represents a prosecution witness (Fields, 2012 IL
       112438, ¶¶ 18, 20, 22, 24, 25, 29), is that statement subject to an implied qualification that
       the contemporaneous representation must occur during the defendant’s trial as opposed to
       during the pretrial phase of the defendant’s case, in order for there to be a per se conflict of
       interest?
¶ 51       The State argues that “dual representation is contemporaneous only if the defendant’s
       attorney is still representing the prosecution witness on the date of trial.” The trouble with
       that argument is it would have us second-guess the plain meaning of words. As a matter of
       English, “dual representation” is “contemporaneous representation” because it is
       representation “occurring *** at the same time.” Merriam-Webster’s Collegiate Dictionary
       249 (10th ed. 2000) A better way of putting the State’s argument might be: the only
       contemporaneous representation that counts for purposes of the per se conflict rule is
       contemporaneous representation during trial. According to the State, cases before Dopson

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       found a per se conflict only in contemporaneous representation during trial, and Dopson was
       a radical and ill-supported extension of that rule to pretrial proceedings.
¶ 52       The primary cases the State cites as representative of the law before Dopson are People
       v. Thomas, 131 Ill. 2d 104 (1989), People v. Flores, 128 Ill. 2d 66 (1989), and People v.
       Strohl, 118 Ill. App. 3d 1084 (1983). We will discuss each of those cases in turn.

¶ 53                                          1. Thomas
¶ 54       The most recent of the three cases is Thomas. In Thomas, a jury found the defendant
       guilty of murder and indecent liberties with a child. Thomas, 131 Ill. 2d at 106. The victim
       was a 15-year-old girl, whose body was found by the side of a driveway in Harvey; she had
       been disemboweled, and semen was on her clothing. Id. at 107. The defendant’s cousin,
       Madis Lacy, implicated the defendant. Id. She stopped some Chicago police officers and
       allegedly told them she had seen bloodstains in the defendant’s car and that the defendant’s
       wife had told her he “had ‘gutted’ a girl in Harvey.” Id.
¶ 55       The defendant hired an attorney, Cassandra Watson, to represent him in the murder case,
       and after entering her appearance as the defendant’s attorney, Watson undertook the
       representation of Madis Lacy in a separate criminal case charging her with welfare fraud. Id.
       at 108. “Although the documents from Lacy’s pending criminal case [did] not reveal when
       Watson’s representation of Lacy terminated, clearly, Watson was still representing Lacy on
       April 21, 1986, at the time of [the] defendant’s suppression hearing,” because that was the
       date when “Watson filed an answer to the State’s request for discovery in Lacy’s case.” Id.
       at 108-09. So, in Thomas, it was clear that Watson was representing both the defendant and
       Lacy at the time of the defendant’s suppression hearing, but it was unclear whether she still
       was representing Lacy while representing the defendant in his trial.
¶ 56       Nevertheless, according to the supreme court, contemporaneous representation was the
       single dispositive issue in Thomas. The supreme court said: “Our review of the record reveals
       one issue to be dispositive of the appeal: Was [the] defendant denied effective assistance of
       counsel by his attorney’s contemporaneous representation of an informant/witness against
       [the] defendant?” Id. at 106-07. After so stating the issue, the supreme court said: “We
       believe [the] defendant was denied effective assistance of counsel because his attorney
       labored under a per se conflict of interest ***.” Id. at 107. Then the supreme court said: “We
       will briefly summarize the facts as they pertain to this issue.” Id. One of the facts the
       supreme court summarized was Watson’s contemporaneous representation of the defendant
       and Lacy at the time of the defendant’s suppression hearing. Id. at 108-09. Therefore, in the
       supreme court’s view, contemporaneous representation during the suppression hearing was
       pertinent to the issue of a per se conflict.
¶ 57       Watson chose not to call Lacy to testify in the suppression hearing, even though, “as an
       informant providing hearsay information,” “[Lacy’s] veracity and basis of knowledge were
       highly relevant to a probable-cause determination.” Id. at 113. The supreme court remarked:
       “[Watson] may well have declined to call Lacy as a witness for fear of offending her in the
       course of examination and losing her business, or counsel may have felt that an attack on
       Lacy’s veracity might later come to haunt Lacy in her felony case.” Id.

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¶ 58       Ultimately, it was unknowable why Watson did not call Lacy in the defendant’s
       suppression hearing. Likewise, it was unknowable whether calling Lacy would have helped
       the defense in the probable-cause determination. Definitively resolving those questions was
       unnecessary, for, as the supreme court held, if an attorney represented a State witness at the
       same time the attorney represented the defendant in his or her criminal case, there was a per
       se conflict of interest, and prejudice was presumed; prejudice did not have to be shown. Id.
       at 111.
¶ 59       Lacy could “be properly characterized as a State witness for the purpose of applying the
       per se rule,” the supreme court said. Id. at 112-13. The status of Lacy as a State witness
       would have been irrelevant if, as the State would have us believe, the supreme court cared
       only about contemporaneous representation during trial when applying the per se conflict
       rule–because, again, it was unclear whether Watson was still representing Lacy at the time
       of the defendant’s trial, but it was clear she was representing Lacy at the time of the
       defendant’s suppression hearing, some eight months before trial (id. at 108-09). If one took
       the position that contemporaneous representation during the pretrial phase of a defendant’s
       case did not count for purposes of the per se conflict rule, Thomas would be
       incomprehensible. The supreme court’s discussion of Watson’s potentially conflicting
       loyalties in the suppression hearing would be pointless.

¶ 60                                          2. Flores
¶ 61       In Flores, a jury found the defendant guilty of the armed robbery and murder of Gilbert
       Perez. Flores, 128 Ill. 2d at 75. On appeal to the supreme court, the defendant argued he had
       been “denied [his] sixth amendment guarantee of conflict-free representation of counsel
       because at the time of trial, defense counsel also represented one of the State’s witnesses,
       Sammy Ramos.” Id. at 82. This “dual representation,” the defendant argued, “raised a per
       se conflict of interest which required counsel to withdraw as his attorney, and because
       counsel did not, he was denied a fair trial.” Id.
¶ 62       The supreme court responded:
               “Contrary to what the defendant asserts, nothing in the record shows that defense
           counsel represented Ramos at the time of [the] defendant’s trial. While defense counsel
           stated that he had ‘previously’ represented Ramos, he did not say that he represented him
           at that time or concerning Perez’[s] murder prior to trial. The defendant has failed to
           show an actual or per se conflict of interest on the part of defense counsel.” Id. at 83.
¶ 63       As one can see from the quoted passage, the supreme court never really held, in Flores,
       that an attorney’s contemporaneous representation of the defendant and of a witness for the
       State had to occur during the defendant’s trial in order to be a per se conflict of interest.
       Instead, the defendant in Flores argued that, “at the time of trial, defense counsel also
       represented one of the State’s witnesses, Sammy Ramos” (id. at 82), and the supreme court
       merely responded to that argument: “Contrary to what the defendant asserts, nothing in the
       record shows that defense counsel represented Ramos at the time of [the] defendant’s trial.”
       (Emphasis added.) Id. at 83. “A judicial opinion is a response to the issues before the court,
       and these opinions *** must be read in the light of the issues that were before the court for

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       determination.” Nix v. Smith, 32 Ill. 2d 465, 470 (1965).

¶ 64                                           3. Strohl
¶ 65       In Strohl, a jury found the defendant guilty of murdering William Prather. Strohl, 118 Ill.
       App. 3d at 1087. The defendant argued, on appeal, that his trial counsel, Lonnie Lutz, had
       been in a per se conflict of interest in that Lutz had simultaneously represented the State’s
       witness, Collin Runner. Id. at 1091.
¶ 66       “The [defendant’s] trial commenced on August 24, 1982, and there [was] no showing in
       the record as to the disposition of Runner’s case.” Id. We said: “In the instant case there is
       no showing that Lutz was representing Runner on August 24, 1982. In fact, the fair inference
       *** is to the contrary, that Runner’s case was closed. *** It follows that no per se conflict
       has been demonstrated.” Id. at 1092.
¶ 67       Strohl could be interpreted as assuming that the sine qua non of a per se conflict is
       contemporaneous representation during a defendant’s trial as opposed to contemporaneous
       representation during the pretrial phase. That assumption did not survive the supreme court’s
       subsequent decision in Thomas.

¶ 68                    E. Additional Reasons To Find a Per Se Conflict in
                    Contemporaneous Representation During the Pretrial Phase
¶ 69                      1. The Right to Effective Assistance by Counsel,
                              and Therefore to Unconflicted Counsel,
                      From the Very Initiation of the Criminal Proceedings
¶ 70       The sixth amendment provides that, “[i]n all criminal prosecutions, the accused shall
       enjoy the right to *** have the Assistance of Counsel for his defense.” U.S. Const., amend.
       VI. This sixth amendment right to counsel arises the moment when adversarial criminal
       proceedings are initiated against the defendant. People v. Young, 153 Ill. 2d 383, 401-02
       (1992). The right to counsel encompasses the right to effective assistance by counsel. People
       v. Wilk, 124 Ill. 2d 93, 107 (1988). Effective assistance by counsel in turn entitles the
       defendant to counsel who has no conflict of interest, whose loyalty to the defendant is
       undivided. Thomas, 131 Ill. 2d at 111. See also People v. Stoval, 40 Ill. 2d 109, 112-13
       (1968) (“[A] [defendant’s] right to counsel under the Constitution is more than a formality,
       and to allow him to be represented by an attorney with such conflicting interests as existed
       here without his knowledgeable consent is little better than allowing him no lawyer at all.”
       (Internal quotation marks omitted.)). It follows that, not only during the trial, but from the
       very initiation of the criminal proceedings, the defendant has a sixth amendment right to
       unconflicted counsel.

¶ 71                         2. The Artificiality of a Dividing Line
                           Between the Pretrial Phase and the Trial
¶ 72      The pretrial phase and the trial do not exist in separate watertight compartments. What


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       happens during the pretrial phase affects what happens at trial. For example, the ruling on
       a motion in limine or on a motion for suppression will determine what evidence is presented
       at trial. More broadly, trial preparation has a profound effect on the trial, and if a conflicting
       loyalty to the State’s witness inhibits the defense counsel in his or her trial preparation, the
       defense could suffer in the trial. See People v. Coleman, 301 Ill. App. 3d 290, 300 (1998).
       Because the trial depends on the pretrial phase, it would be illogical to hold that only
       contemporaneous representation during the trial, not during the pretrial phase, qualifies as
       a per se conflict of interest.

¶ 73                3. The Unlikelihood That the Supreme Court Would Leave
                          Such an Important Qualification to Implication
¶ 74       We are aware of no case in which the supreme court has said, plainly and outright, that
       the only contemporaneous representation that counts, for purposes of the per se conflict rule,
       is contemporaneous representation during trial. Rather, the supreme court always seems to
       say, “Where defense counsel has represented a State’s witness, a per se conflict of interests
       exists if the professional relationship between the attorney and the witness is
       contemporaneous with counsel’s representation of [the] defendant,” or words to that
       effect–without any qualification. Thomas, 131 Ill. 2d at 111. In Fields, for example, the
       supreme court says 10 times (by our count) that an attorney’s contemporaneous
       representation of the defendant and a witness for the State constitutes a per se conflict of
       interest, and not once during those 10 times does the supreme court add the qualifier
       “contemporaneous representation during trial.” Fields, 2012 IL 112438, ¶¶ 18, 20, 22, 24,
       25, 29. It strikes us as unlikely that the supreme court would leave such an important
       qualification to implication.

¶ 75                 4. An Illustration of Why Contemporaneous Representation
                 During the Pretrial Phase Should Be Considered a Per Se Conflict
¶ 76        Defendant points out:
            “[I]t was in Elliot Murphy’s best interests that Shawn Stanley be convicted of every
            felony with which he was charged, in order to maximize the impeachment of his
            credibility should he testify against Murphy (or, as it turned out, should his video
            recorded statement be admitted against Murphy as substantive evidence). On the other
            hand, it was in Shawn Stanley’s best interests that he be convicted of the fewest felonies,
            if any, with which he was charged, in order to minimize his potential punishment.”
¶ 77        This dilemma illustrates why defense counsel’s contemporaneous representation of the
       defendant and the State’s witness during the pretrial phase of the defendant’s case should be
       considered a per se conflict of interest. Why, during defendant’s trial, did Baker not impeach
       Stanley with his prior felony convictions? Not, apparently, because Baker was worried he
       might shake the jury’s confidence in Stanley’s testimony that he lacked any memory of
       telling Hitchens about the beating of Wilson. Surely, People’s exhibit No. 29, the video of
       the interview, already destroyed the believability of Stanley’s lack of memory. Even though


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       it was important, for the defense, that the jury not believe Stanley’s video-recorded
       statement, maybe Baker refrained from impeaching Stanley with his felony convictions
       because, subliminally, Baker sensed the tension that defendant points out in the paragraph
       quoted above. Maybe Baker sensed it would be rather crass first to recommend, as Stanley’s
       attorney, that Stanley plead guilty to felony charges and then, as defendant’s attorney, turn
       around and use the felony convictions against Stanley. See People v. Spreitzer, 123 Ill. 2d
       1, 16 (1988) (“[T]he knowledge that a favorable result for the defendant would inevitably
       conflict with the interest of his client *** might ‘subliminally’ affect counsel’s performance
       in ways difficult to detect and demonstrate.”).

¶ 78               F. Defendant’s Motion for Summary Reversal and Remand
¶ 79        Defendant has moved for summary reversal and for remand for a new trial because of
       trial counsel’s per se conflict of interest in contemporaneously representing defendant and
       Stanley. For the reasons we have discussed, we grant the motion.
¶ 80        We emphasize, though, that this is an exceptional case and that motions for summary
       reversal generally are disfavored.

¶ 81                                   III. CONCLUSION
¶ 82       For the foregoing reasons, we reverse the trial court’s judgment and remand this case for
       a new trial.

¶ 83      Reversed and remanded.




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