                        Docket No. 107701.


                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS



THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
           LEVELL TAYLOR, Appellant.

                   Opinion filed March 18, 2010.



   JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
   Justices Thomas, Kilbride, Garman, Karmeier, and Burke
concurred in the judgment and opinion.
   Chief Justice Fitzgerald took no part in the decision.

                             OPINION

    Defendant, Levell Taylor, petitioned the circuit court of Cook
County for postconviction relief pursuant to the Post-Conviction
Hearing Act (725 ILCS 5/122–1 et seq. (West 2000)). Following an
evidentiary hearing, the circuit court denied defendant’s petition. The
appellate court affirmed. No. 1–06–0938 (unpublished order under
Supreme Court Rule 23). We allowed defendant’s petition for leave
to appeal (210 Ill. 2d R. 315), and now affirm the judgment of the
appellate court.
                          I. BACKGROUND
                                A. Trial
    Defendant, his brother Lowell Taylor, and Duante Anderson were
jointly charged with the first degree murder of the victim, Bruce
Carter. See 720 ILCS 5/9–1(a)(1), (a)(2) (West 2008). The events
leading to the victim’s death were uncontested at trial.
    On the afternoon of August 11, 1996, Tyeshia Clinton’s mother
hosted a barbeque at her home near 52nd Street and Lowe Avenue. A
south side Chicago streetgang (hereafter south side gang) claimed that
area as part of its turf and referred to it colloquially as “Motown.”
Approximately 13 or 14 south side gang members had gathered in the
front yard. At approximately 7 p.m., six of Clinton’s friends arrived
for the party, including Keith Baker and the victim. Clinton’s friends
belonged to a rival west side Chicago streetgang. The victim drove
these friends to the party in his brother’s car. The victim parked the
car on the side of the Clintons’ house.
    Upon their arrival, the six friends greeted Clinton in the front
yard, and then four of them entered the house. The victim, Baker, and
Clinton remained in the front yard conversing. Almost immediately,
they were approached by a group of south side gang members that
included Anderson, defendant, and Lowell. Anderson shouted at the
three friends: “You don’t know where you at. You in Motown.”
Anderson then approached the victim and punched him in the face. A
melee ensued wherein the south side gang members, including
Anderson, defendant, and Lowell, forced Baker and the victim to the
ground and kicked them. Also, the victim’s car windows were
smashed. Baker and the victim broke away from their attackers and,
with Baker in the lead, ran toward the front door of the house.
Witnesses heard two gunshots. The victim was shot once in the upper
right arm. He fell into Baker, who carried him into the house. The
victim died shortly thereafter in the living room. A subsequent
autopsy revealed that the victim had been shot at very close range,
that the bullet traversed his torso and lodged in the lower left chest
cavity, and that the victim internally bled to death.
    At approximately 9 p.m., Chicago Police Detective James
O’Brien interviewed Baker and several other witnesses. Baker
identified Anderson as the person who had punched the victim,


                                 -2-
defendant as the person who had passed a gun to Lowell, and Lowell
as the person who had actually shot the victim. Detective O’Brien
also interviewed Phillip Marshall, who was a 16-year-old member of
the south side gang. On August 12, 1996, Marshall testified before a
grand jury. Marshall testified that he had known Anderson, defendant,
and Lowell all of his life. Also, Marshall testified that on the night of
August 11, he was standing across the street from the Clintons’ front
yard. Marshall testified that he saw the melee begin, heard gunshots,
and then saw everyone run. Marshall further testified that he saw
Lowell holding a gun as he was running from the scene. The grand
jury indicted Anderson, defendant, and Lowell for first degree
murder.
     Anderson, defendant, and Lowell were jointly tried. Anderson
was represented by his own trial counsel, and defendant and Lowell
were both represented by Raymond Prusak. Anderson and defendant
waived their right to a jury and received a bench trial, while Lowell
received a jury trial.
     As indicated by opening statements and closing arguments, the
State’s theory of the case was that Lowell was guilty of first degree
murder because Lowell shot the victim, and that Anderson and
defendant were legally accountable for Lowell’s acts. Baker testified
that he saw Anderson punch the victim, that he saw defendant hand
a gun to Lowell, and that he saw Lowell shoot the victim. The State
called Marshall as a witness, but he recanted his grand jury testimony
implicating Lowell. On cross-examination, Marshall testified that he
implicated Lowell before the grand jury based on police promises of
leniency and threats of charging him in the case if he failed to do so.
Detective O’Brien and Chicago police officer Thomas Glynn, who
picked up Marshall for questioning, each testified that he never
threatened Marshall or offered Marshall any favors in exchange for
implicating Lowell. Marshall’s grand jury testimony was read into the
trial record for purposes of impeachment. The gun was never
recovered and no gunpowder residue tests were performed on Lowell
or defendant.
     The defense theory for each defendant was that the State failed to
prove him guilty of the charged offense beyond a reasonable doubt.
Each defendant did not testify, or present any witnesses or other
evidence. Anderson’s trial counsel and Prusak each cross-examined

                                  -3-
the State’s witnesses. In closing argument, Anderson’s trial counsel
and Prusak each attacked the credibility of the State’s witnesses and
described purported discrepancies in their testimony.
    The jury convicted Lowell, and the trial court convicted
defendant, of first degree murder. The court found that defendant
handed the gun to Lowell, and therefore was legally accountable for
the actions of Lowell, the shooter.1 On October 28, 1998, at the close
of a sentencing hearing, the court sentenced Lowell to 45 years’
imprisonment and sentenced defendant to 35 years’ imprisonment.
    Defendant and Lowell separately appealed from their respective
convictions; the appellate court consolidated the two appeals. Each
claimed, inter alia, ineffective assistance of counsel arising out of an
alleged conflict of interest in trial counsel’s joint representation of
them. The appellate court affirmed defendant’s conviction and
sentence. People v. Taylor, Nos. 1–99–0074, 1–99–1982 cons. (2001)
(unpublished order under Supreme Court Rule 23).

                          B. Postconviction
    On November 15, 2001, defendant filed a postconviction petition,
again claiming ineffective assistance of counsel based on an alleged
conflict of interest arising out of Prusak’s joint representation of
defendant and Lowell. The petition alleged that “potential defense
witnesses” were at the scene of the shooting and were willing to
testify on defendant’s behalf. The petition further alleged that Prusak
did not call them because “they would make his other client [Lowell]
the shooter.”
    Defendant attached affidavits from himself, codefendant
Anderson, his parents Joyce and Alfonso Parker, Michael Woods, and
Teddy Plummer. Defendant, Anderson, Woods, and Plummer averred
that each knew the others; that each was at the party; and that each
saw Lowell fire a gun at the victim. Defendant further averred that he
did not hand a gun to Lowell. Anderson, Woods, and Plummer


  1
   The trial court acquitted Anderson, finding: “[A]lthough he may have
been the instigator,” his part “was minimal. There’s nothing to show that
he had knowledge of any weapons or did anything other than punch [the
victim].”

                                  -4-
likewise stated that defendant did not hand a gun to Lowell and,
further, that defendant was not even involved in the fight. Defendant,
Woods, and Plummer further averred that each went to Prusak’s
office; that each gave Prusak this information; and that Prusak told
them that their testimony would not be needed because it would hurt
defendant’s case, and that defendant “had nothing to worry about” or
“had the case beat.” Joyce and Alfonso Parker each averred that they
brought three persons, including Woods and Plummer, to Prusak’s
office to offer their testimony. According to the Parkers, Prusak “said
he could not call them as witnesses because they would convict
Lowell. He said [defendant] ‘had the case beat’ anyway.” The Parkers
each further averred: “Each time we spoke to Mr. Prusak about
witnesses he told us they were not necessary since there was no way
[defendant] could be found guilty.”
    The State moved to dismiss defendant’s postconviction petition
without an evidentiary hearing. The circuit court denied the motion
to dismiss and held an evidentiary hearing.
    The following witnesses testified on behalf of defendant. Joyce
Parker testified that she retained Prusak to represent both defendant
and Lowell. Joyce had retained Prusak to represent defendant in a
prior criminal prosecution.2 Joyce was satisfied with Prusak’s
performance in the prior case and trusted him. Joyce knew that
Lowell was accused of shooting the victim and defendant was
accused of handing the gun to Lowell.
    Sometime in 1997, Joyce and her husband brought defendant,
who was released from jail on bond, Plummer, Woods, Rufus
Bingham, and Natavian Simms3 to Prusak’s office. After interviewing


  2
    The record shows that in 1994, defendant was charged with multiple
counts of aggravated battery, armed violence, and aggravated discharge of
a firearm. The State entered a nolle prosequi on all counts except one count
of aggravated battery. Defendant was convicted on that count and
sentenced to two years’ imprisonment. Joyce believed that defendant “was
in jail approximately 17 months.”
  3
   Simms briefly testified at the evidentiary hearing. He was nowhere near
the crime scene and lacked any personal knowledge of the shooting. He was
present at the meeting with the others in Prusak’s office, and he testified

                                    -5-
these persons, Prusak informed them that he would not call them as
witnesses on defendant’s behalf “because they would hurt Lowell’s
case.” Joyce met with Prusak several times, during which she raised
the issue of a conflict of interest between defendant and Lowell.
Prusak repeatedly assured Joyce and defendant that “he did not need
the witnesses because they had nothing on [defendant],” and that
Joyce and defendant “had nothing to worry about.” Joyce was not
happy with Prusak’s decision not to call the proffered witnesses.
However, Joyce did not consider firing Prusak and retaining another
attorney because she had already paid Prusak “so much money at that
time” that she could not afford to retain another attorney.
    Rufus Bingham testified as follows. He was at the scene of the
crime, where he saw Lowell shoot the victim and where he did not
see defendant hand a gun to Lowell. Bingham related what he saw to
Prusak. However, Prusak would not call Bingham and the other
proffered witnesses because their testimony would be worse for
Lowell. On cross-examination, Bingham revealed that he had five
prior felony convictions, was a friend of defendant, and was a fellow
south side gang member. Further, Bingham admitted that he talked
about the case with Anderson and Simms, who are also south side
gang members. Although Bingham told Prusak that defendant did not
give a gun to Lowell, Bingham disclosed that he never said so to law
enforcement officials. Immediately following the shooting, Bingham
was taken to a police station where police and an assistant State’s
Attorney questioned him. Bingham knew that defendant was under
arrest for the shooting. However, Bingham acknowledged that he
failed to mention anything about defendant during his interviews,
including that defendant did not hand a gun to Lowell.
    Plummer testified that he was present at the shooting, that he saw
Lowell shoot the victim, and that he told police that Lowell was the
shooter. Also, consistent with his affidavit, Plummer testified that not
only did defendant not hand a gun to Lowell, but that defendant was
not even with the group of people near the shooting. At the group
meeting with Prusak, Plummer related this information and added
that defendant did not hand a gun to Lowell but, rather, Lowell



only that the meeting occurred.

                                  -6-
possessed the gun at all times. Prusak responded that Plummer
“would hurt both of his clients” if Plummer testified. On cross-
examination, Plummer disclosed that he had prior convictions for two
felonies and one misdemeanor. Plummer acknowledged that he is
friends with both defendant and Lowell. Although Plummer denied
being a member of the south side gang with defendant and Lowell,
Plummer explained that he was a member of another streetgang, and
that “those two gangs get along.” Plummer also admitted that he
never told police that defendant did not have a gun or hand a gun to
Lowell.
    Anderson testified that he did not see Lowell shoot the victim, but
that he saw Lowell holding a gun after the shooting. According to
Anderson, defendant did not hand a gun to Lowell because defendant
was away from Lowell; defendant “was on the side of the building
destroying the [victim’s] car.” However, Anderson admitted that he
could not actually see defendant from where Anderson was located.
Anderson revealed that he had prior convictions for four felonies and
one misdemeanor. Anderson acknowledged that he was a friend of
defendant and a fellow south side gang member.
    Defendant testified as follows. He and his parents went to
Prusak’s office and spoke with him on three occasions. On the second
visit, they brought Plummer, Woods, Bingham, and Simms. Prusak
told defendant that he did not need to testify at his trial. According to
defendant: “He [Prusak] said it wasn’t necessary. He said I already
had my case beat.” Defendant told Prusak that he saw Lowell shoot
the victim, but that he did not give Lowell the gun.
    On cross-examination, defendant acknowledged that his parents
paid Prusak “a lot of money” to represent him in his murder case.
Defendant expected Prusak’s representation to result in a finding of
not guilty. Defendant acknowledged that he was angry about being
convicted and sentenced to 35 years’ imprisonment, and that he was
“especially angry” with Prusak because he did not call defendant’s
proffered witnesses to testify. Defendant repeated that he did not hand
a gun to Lowell, and added that he did not even participate in the
attack on Baker and the victim. Rather, during the attack, defendant
was on the side of the Clinton’s house “busting out his [the victim’s]
car windows.” Upon further questioning, defendant repeated: “I was
busting out the car windows. I was the one busting out the car

                                  -7-
windows.”4 Defendant further acknowledged that he was still a south
side gang member; that he was friends with fellow gang members
Bingham and Plummer; and that he gave their names and addresses,
among others, to Prusak. Although defendant was arrested only about
two hours after the shooting, defendant admitted that he did not
mention any of these proffered witnesses to the police or the assistant
State’s Attorney who questioned him.
    The State called Prusak, who testified as follows. He was
admitted to the Illinois bar in 1980, and criminal law was “the major
portion” of his practice. By the time of defendant’s and Lowell’s
1998 murder trial, Prusak had tried between 25 and 50 murder cases,
both bench and jury trials. In some of his prior murder trials, Prusak
had jointly represented codefendants. When codefendants request his
joint representation, “the first thing” Prusak considers is whether an
actual or potential conflict of interest exists. Prusak did not perceive
a conflict of interest in this case. He testified: “The trials were
severed. They were going to be separate juries or one was going to
take a bench trial. From the beginning we all knew that [defendant]
was going to have a bench trial because we all believed that the case
against him was fairly weak.” Prusak remembered that he had
represented defendant in a prior case.
    Prusak recalled meeting with defendant and family members in
his office several times. Although Prusak did not remember Bingham
and Plummer specifically, Prusak did recall that several putative
witnesses came to his office on one occasion with defendant’s family.
Prusak clarified that he never categorically decided not to call any
witnesses on behalf of defendant. Rather, according to Prusak, there
was never any clear-cut reason to call those witnesses.
    When questioned why Prusak believed that there was no reason
to call defendant’s putative witnesses, Prusak testified that he had
reviewed copies of the police reports. He explained that defendant’s
case “was a single finger I.D. case, meaning there was only one
person who had identified [defendant as the person] who had actually
handed a gun to his brother who in turn shot the victim.” Prusak


 4
  Defendant could not explain why he smashed the victim’s car windows,
only that he “just did it.”

                                  -8-
noted that there were only two eyewitnesses: Marshall, who saw
Lowell holding the gun; and Baker, who saw defendant hand the gun
to Lowell. Prusak reasoned:
        “So essentially there were two witnesses, one was a flipper,
        one stuck to his story but both of those witnesses had
        convictions. They were both gang members and they both had
        lied in the past and I felt that neither of them would be
        credible witnesses to support a first degree murder
        conviction.”
Indeed, it was because Prusak viewed the State’s case as “very weak”
that he requested a bench trial for defendant and took a jury trial for
Lowell.
    Prusak was asked whether he decided to try defendant and Lowell
before separate triers of fact because he knew that he had a conflict
of interest. Prusak responded as follows:
             “No. One was a bench trial ***. One was a jury trial. One
        client had a great case and *** you don’t risk it in front of a
        jury. You leave it up to a judge on a single-finger I.D. case.
        The other client is obviously guilty. You just try your best
        with the jury and hope for the best. That’s why I took a jury
        on one and I took a bench on the other.”
    In addition to viewing the State’s case as very weak, Prusak also
considered the strength or weakness of the putative witnesses who
had visited his office. Prusak remembered that two of them had
already spoken to police. Prusak compared what they told police to
what they, and defendant, told him. Defendant told Prusak that he
arrived at the party with Lowell and several other friends.5 Defendant
further told Prusak that when the brawl ensued on the front yard of
the Clinton house, defendant was on the side of the house breaking
out the victim’s car windows–with a gun. According to Prusak: “So
they all–so while his brother [Lowell] and the other gentleman
[Anderson] were making a confrontation he [defendant] was out
breaking windows using a firearm to break the windows with, not


  5
   After a colloquy with counsel, the court correctly determined that the
attorney-client privilege had been waived. See People v. Griffin, 109 Ill. 2d
293, 303 (1985).

                                    -9-
shooting it but using it to break the windows.” On cross-examination,
Prusak was asked whether defendant told Prusak that defendant never
handed a gun to Lowell. Prusak answered:
            “He did tell me that he had a gun and that he was breaking
        windows with the gun. You are correct, he never told me that
        he handed the gun back then to his brother. But I never asked
        him that question, sir, because I didn’t want to hear the
        answer to it.”
In contrast to what defendant told Prusak, defendant told police that
he was two houses away when the brawl began. Prusak explained: “I
had to take into account what [defendant] had told me in private and
what these other two gentlemen were saying to me in light of what
they told the police and in light of their backgrounds and in light of
the whole, whether they contradicted each other or not.”
    Following that comparison, Prusak decided not to call defendant’s
proffered witnesses to testify. Prusak explained that the witnesses
were inconsistent: “One put [defendant] at one place, one put
[defendant] at another place.” Further, according to Prusak: “I knew
that after, once they opened their mouth and how they presented
themselves in my office that they would not make a good impression
upon [the trial judge] because they made a terrible impression upon
me.” Prusak explained that if he called the witnesses, he “would just
be handing the State ammunition to lose a case,” which, he believed,
in his words, “was weak to begin with, which I thought we had a very
good chance of winning and I didn’t want to lose the chance of
winning the case by calling witnesses who in my opinion were not
credible.”
    Prusak would have presented evidence on behalf of defendant if
Prusak “had evidence that would help him [defendant] and it was
credible evidence and it wasn’t tainted by a conviction or
inconsistency or somehow I would not be suborning perjury by
[presenting] that evidence.” For example, Prusak testified that he
asked Lowell to testify for defendant, but Lowell “just shook his head
and walked away from me.” Prusak explained: “And if I’m begging
his [defendant’s] brother in the lockup to testify I would have gladly
have helped, taken help from anybody who would have come off the
street and testified to say a good thing about that young man because
I was trying to win his case.”

                                -10-
    Regarding defendant’s proffered witnesses, Prusak concluded:
              “These witnesses had bad backgrounds. I wish I can
         remember in great detail exactly what their backgrounds were,
         but they were convicted felons, at least one or two of them.
         And the other ones were, they were inconsistent with each
         other. And had I seen one witness, anybody, including his
         brother who was being tried separately by a jury, anybody
         [who] could have offered anything positive for [defendant] I
         would have put them on.
              But in light of the inconsistencies that they were saying,
         in light of what he [defendant] told me which was different
         than what they were telling me, and in light of their
         backgrounds I thought that I would overtry the case and that
         I would give ammunition to the State, and I would lose any
         chance I had of winning the case, which was basically a
         single-finger I.D. based on reasonable doubt.”
    Prusak discussed his view of defendant’s case “in detail” with
defendant. If defendant had wanted certain witnesses to testify, or had
wanted to testify on his own behalf, Prusak would have explained his
reluctance to do so. However, Prusak would have acceded to
defendant’s wishes. Also, Prusak could not recall if defendant’s
mother, Joyce, had requested that he call witnesses. Prusak did
remember that they “were talking all the time,” and whenever a break
occurred during the trial, she would approach and talk to him. Prusak
testified that if Joyce had requested in defendant’s presence, or if both
of them had requested, that Prusak call witnesses, he would have
done so. According to Prusak: “They might have asked me to call a
witness and I might have told them my reasons *** [why] I didn’t
think it was wise to call them. But I didn’t think the witnesses that
they had would benefit [defendant’s] case in any way, shape or form.”
Prusak denied telling defendant or his parents that he had the case
“beat,” but rather told them that the case was weak. Prusak also
denied ever saying that he would not call the witnesses because it
would hurt Lowell’s case.
    In rebuttal, defendant admitted that he did not tell police that he
was breaking the victim’s car windows during the brawl. Rather, he
told police that he was two houses away when the fight began. Also,
defendant denied telling Prusak that he used a gun to smash the

                                  -11-
victim’s car windows.
    Following the evidentiary hearing, the circuit court denied
defendant’s postconviction petition, and the appellate court affirmed.
No. 1–06–0938 (unpublished order under Supreme Court Rule 23).
Defendant appeals to this court. Additional pertinent facts will be
discussed in the context of the issues raised on appeal.

                             II. ANALYSIS
    The Post-Conviction Hearing Act (Act) (725 ILCS 5/122–1 (West
2000)) provides a remedy to criminal defendants who claim that
substantial violations of their federal or state constitutional rights
occurred in their original trials. However, a postconviction action is
not an appeal from a defendant’s underlying judgment. Rather, it is
a collateral attack on a prior conviction and sentence. The purpose of
the postconviction proceeding is to permit inquiry into constitutional
issues involved in the original trial that have not been, and could not
have been, adjudicated previously upon direct review. Issues that
were raised and decided on direct review are barred by the doctrine
of res judicata; issues that could have been presented on direct
review, but were not, are procedurally forfeited. An evidentiary
hearing is warranted only where the allegations of the postconviction
petition, supported where appropriate by the trial record or
accompanying affidavits, make a substantial showing that a
defendant’s constitutional rights have been violated. People v.
Rissley, 206 Ill. 2d 403, 411-12 (2003); People v. Morgan, 187 Ill. 2d
500, 527-28 (1999).

                             A. Res Judicata
    We observe at the outset that defendant raised a conflict-of-
interest claim on direct review of his conviction. Defendant alleged,
inter alia, that Prusak’s trial tactics exhibited a conflict of interest in
that Prusak did not attempt to exonerate defendant at Lowell’s
expense. Defendant recited a list of alleged problems including
Prusak’s failure to call any witnesses strictly on defendant’s behalf.
On direct review, the appellate court rejected defendant’s conflict-of-
interest claim. On review of the circuit court’s denial of defendant’s
postconviction petition, the appellate court correctly rejected the

                                   -12-
State’s argument that the doctrine of res judicata barred defendant’s
conflict-of-interest claim. Rules of procedural default and res judicata
are relaxed where the facts pertaining to a postconviction claim do
not appear on the face of the trial record. See People v. Easley, 192
Ill. 2d 307, 318 (2000); People v. Haynes, 192 Ill. 2d 437, 464-67
(2000); People v. Evans, 186 Ill. 2d 83, 94 (1999). We agree with the
appellate court that defendant did not–and could not–argue on direct
review that he brought Bingham, Plummer, and Woods to Prusak’s
office, that those witnesses were present at the shooting, and that they
did not see defendant hand a gun to Lowell. This information was
outside of the trial record and, therefore, could not have been
considered on direct review. Therefore, we will address the issue.

                        B. Standard of Review
     Defendant argues that the circuit court did not make any oral
finding of fact and did not enter a written order detailing findings of
fact and conclusions of law. Defendant contends that review should
be de novo because the circuit court made no factual findings to
which a reviewing court must defer. The State disagrees, contending
that we should employ the manifest error standard of review.
     We reject defendant’s contention. While a de novo standard of
review is appropriate in addressing issues that are pure questions of
law (People v. Chapman, 194 Ill. 2d 186, 217 (2000)), this case does
not present such a question. The fact of joint representation, standing
alone, does not establish a conflict of interest–evidence is required of
specific defects in the representation. At the evidentiary hearing,
defendant produced evidence purporting to establish such specific
defects. In contrast, the State produced evidence purporting to show
the opposite. Thus, the circuit court necessarily had to base its ruling
on the specific circumstances of this case and not a broadly applicable
rule of law. See People v. Hall, 195 Ill. 2d 1, 21 (2000). In light of the
above, the decision here will not be disturbed on review unless it is
manifestly erroneous. Rissley, 206 Ill. 2d at 412; People v.
Pitsonbarger, 205 Ill. 2d 444, 456 (2002); People v. Thompkins, 191
Ill. 2d 438, 468 (2000). “Manifest error” is error which is clearly
plain, evident, and indisputable. People v. Morgan, 212 Ill. 2d 148,
155 (2004).


                                  -13-
                          C. Conflict of Interest
     Defendant claims the evidence established that he was denied his
constitutional right to conflict-free representation when Prusak jointly
represented defendant and Lowell. The sixth and fourteenth
amendments to the United States Constitution guarantee the right to
effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 343-
44, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1715-16 (1980);
People v. Mahaffey, 165 Ill. 2d 445, 456 (1995); People v. Vriner, 74
Ill. 2d 329, 337 (1978). A criminal defendant’s sixth amendment right
to effective assistance of counsel includes the right to conflict-free
representation. People v. Hernandez, 231 Ill. 2d 134, 142 (2008);
People v. Morales, 209 Ill. 2d 340, 345 (2004). Such representation
means assistance by an attorney whose loyalty to his or her client is
not diluted by conflicting interests or inconsistent obligations.
Mahaffey, 165 Ill. 2d at 456; People v. Spreitzer, 123 Ill. 2d 1, 13-14
(1988).
     In determining whether defendant received conflict-free
representation, we first resolve whether Prusak labored under a per
se conflict of interest. This court has identified two categories of
conflicts of interest: per se and actual. Hernandez, 231 Ill. 2d at 142;
Morales, 209 Ill. 2d at 345. A per se conflict of interest exists where
certain facts about a defense attorney’s status engender, by
themselves, a disabling conflict. Hernandez, 231 Ill. 2d at 142;
Spreitzer, 123 Ill. 2d at 14. This court has identified three situations
where a per 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. Hernandez, 231 Ill. 2d at
143-44; Morales, 209 Ill. 2d at 345-46. If a per se conflict is found,
there is no need to show that the conflict affected the attorney’s actual
performance. Unless a defendant waives his or her right to conflict-
free representation, a per se conflict of interest is grounds for
automatic reversal. Hernandez, 231 Ill. 2d at 143; Morales, 209 Ill.
2d at 345; Spreitzer, 123 Ill. 2d at 15, 17. Defendant does not argue
the existence of a per se conflict of interest in this case.

                                  -14-
     This court has identified a second category of conflicts of interest
which generally, although not exclusively, involve joint or multiple
representation of codefendants. Spreitzer, 123 Ill. 2d at 17. The joint
representation of criminal codefendants is not per se violative of the
constitutional guarantee of conflict-free representation. Vriner, 74 Ill.
2d at 340. Of course, there is always the possibility that the interests
of codefendants may diverge. Cuyler, 446 U.S. at 348, 64 L. Ed. 2d
at 346, 100 S. Ct. at 1718; Vriner, 74 Ill. 2d at 340. Further, “defense
strategy in multiple representation situations often will invite, through
hindsight, conceived notions that the representation adversely
affected the interests of at least one defendant at some point in the
trial process.” Vriner, 74 Ill. 2d at 342. However, this court has
consistently held that a conflict of interest is not inherent in joint-
representation situations merely by virtue of such representation.
Vriner, 74 Ill. 2d at 340 (collecting cases); accord People v. Orange,
168 Ill. 2d 138, 156 (1995).
     Where, as here, a potential conflict of interest is not brought to the
attention of the trial court, “a defendant must establish that an actual
conflict of interest adversely affected his lawyer’s performance.”
Cuyler, 446 U.S. at 350, 64 L. Ed. 2d at 348, 100 S. Ct. at 1719.
Certainly, the defendant is not required to prove prejudice in that the
conflict contributed to his or her conviction. Spreitzer, 123 Ill. 2d at
18-19. However, to prevail on a claim of ineffective assistance of
counsel because of joint representation of criminal codefendants by
a single attorney, a defendant must show that an actual conflict of
interest manifested at trial. Orange, 168 Ill. 2d at 156; Mahaffey, 165
Ill. 2d at 456; Spreitzer, 123 Ill. 2d at 18. “What this means is that the
defendant must point to some specific defect in his counsel’s strategy
tactics, or decision making attributable to the conflict.” Spreitzer, 123
Ill. 2d at 18; see Mahaffey, 165 Ill. 2d at 456.
     In the present case, we conclude that defendant failed to establish
an actual conflict of interest in the joint representation of himself and
Lowell that adversely affected Prusak’s performance at trial. In
defendant’s postconviction petition, the only alleged specific defect
in Prusak’s representation that defendant attributes to the claimed
conflict is that Prusak failed to call defendant’s proffered witnesses,
who would have testified that only Lowell was involved in the


                                   -15-
shooting.6 Indeed, at oral argument, defendant argued that an “actual”
conflict manifested solely on defendant’s proffer of his witnesses.
     First, an actual conflict of interest never manifested. A conflict of
interest was not inherent in the joint representation of defendant and
Lowell. At most, defendant’s proffered witnesses merely raised the
possibility that the interests of defendant and Lowell may diverge. At
defendant’s trial, defendant and Lowell each denied his guilt and did
not implicate the other. Prusak vigorously cross-examined the State’s
witnesses, impeached their credibility, and argued that the State failed
to meet its burden of proof beyond a reasonable doubt. This strategy
alone does not reveal an actual conflict. See Vriner, 74 Ill. 2d at 341.
The mere availability of a strategy that would have helped one
criminal codefendant at the expense of another does not create
hostility between their interests. Defendant merely attempts to create
an actual conflict of interest through conjecture and hindsight as to
what strategy might have been pursued. This court will not overturn
a conviction based on possible or hypothetical conflicts. See
Mahaffey, 165 Ill. 2d at 456-57; Griffin, 109 Ill. 2d at 306.
     Second, the record fails to establish any specific adverse effect in
Prusak’s performance attributable to the alleged conflict. The circuit
court held an evidentiary hearing, in which the court heard defendant
and his witnesses testify. According to their postconviction hearing
testimony, defendant’s witnesses would have testified at defendant’s
trial that defendant did not hand a gun to Lowell. Further, according
to defendant’s witnesses, Prusak did not call them to testify at
defendant’s trial because they would have identified Prusak’s other
client, Lowell, as the shooter. At the evidentiary hearing, the circuit
court also heard Prusak testify. According to Prusak, his decision not


  6
    In his reply brief and at oral argument, defendant also speculates that
Prusak’s alleged conflict of interest manifested not only at trial but also as
to possible pretrial plea negotiations. Defendant argues that he was entitled
to an attorney who could make a decision to use or not use the testimony
of his proffered witnesses or to engage in plea negotiations unfettered by
the effect of those decisions on Lowell’s case. However, because defendant
did not include this specific alleged defect in his postconviction petition,
he has procedurally forfeited this contention. See People v. Davis, 156 Ill.
2d 149, 158 (1993).

                                    -16-
to call defendant’s proffered witnesses was not attributable to any
alleged conflict of interest, but rather because, in his professional
judgment, they were weak witnesses, who offered inconsistent
testimony and who were not credible. For example, Anderson
testified that defendant did not hand a gun to Lowell because
defendant was smashing the victim’s car windows. Prusak testified
that defendant likewise told him that defendant smashed the victim’s
car windows, however, with a gun.
     As earlier discussed, the testimony at the evidentiary hearing was
contradictory, setting up a question of fact as to whether Prusak’s
decision not to call defendant’s proffered witnesses was attributable
to the alleged conflict of interest. For example, Prusak denied telling
defendant, his parents, or his witnesses that the case was already
“beat” or that he would not call the witnesses because to do so would
hurt Lowell’s case. Defendant denied telling Prusak that he used a
gun to smash the victim’s car windows. The determination of this
question rested substantially on the credibility of the witnesses at the
evidentiary hearing. “Credibility is not, of itself, a question for a court
of review ***.” Griffin, 109 Ill. 2d at 307. Rather, in a postconviction
evidentiary hearing, the circuit court, which saw and heard the
witnesses, is in a better position than a reviewing court to engage in
fact-finding and credibility determinations. People v. Coleman, 183
Ill. 2d 366, 384-85 (1998) (and cases cited therein); People v. Rose,
48 Ill. 2d 300, 303 (1971); People v. Burton, 46 Ill. 2d 135, 141
(1970). In the present case, the circuit court evidently found Prusak’s
testimony more credible. See People v. Logue, 45 Ill. 2d 170, 174-75
(1970); People v. Wease, 44 Ill. 2d 453, 457 (1970).
     We observe that during his testimony, Prusak commented: “If
they [defendant and Lowell] had the same trier of fact it would have
been a conflict.” Defendant points to this comment and a few others
in contending that Prusak operated under a legal misunderstanding of
the concept of conflict-free representation. Defendant posits that
“severance does not automatically cure potential conflicts.”
     We cannot accept defendant’s contention. The clear weight of
Prusak’s testimony demonstrates his belief that the evidence against
defendant was weak, and that defendant’s proffered witnesses were
inconsistent and not credible. Prusak requested a bench trial for
defendant for those reasons and not to cure a perceived conflict of

                                   -17-
interest. The circuit court’s acceptance of this conclusion was not
manifestly erroneous.7
     Indeed, the circuit court’s credibility determination is particularly
justified based on the contradictions among defendant and his
witnesses. See People v. Downen, 45 Ill. 2d 197, 201 (1970)
(affirming circuit court’s denial of postconviction petition following
evidentiary hearing; noting contradictions in testimony of defendant’s
witnesses); Wease, 44 Ill. 2d at 457 (same). Bingham’s testimony did
not remove defendant from the fight. However, Plummer testified,
consistent with Woods’ affidavit, that defendant was not involved in
the fight. Further, Anderson testified that defendant was not involved
in the fight because he was destroying the victim’s car; however,
Anderson admitted on cross-examination that he could not see
defendant from where Anderson stood. Defendant testified that he
was smashing the victim’s car windows, but he admitted that he did
not tell this to police. We find no basis for upsetting the circuit
court’s evaluation of the credibility of the witnesses. See Griffin, 109
Ill. 2d at 307 (concluding that appellate court erroneously substituted
its view of witness credibility for that of circuit court; finding circuit
court’s denial of postconviction petition following evidentiary
hearing not manifestly erroneous); Logue, 45 Ill. 2d at 174-75; Wease,
44 Ill. 2d at 457.
     We lastly note that defendant cites cases in which a conflict was
found to exist. See, e.g., People v. White, 362 Ill. App. 3d 1056
(2005). Those cases are inapposite, as Prusak’s testimony at the
evidentiary hearing supports a finding that no such conflict existed in
the present case. Whether a conflict of interest exists must be
evaluated on the specific facts of each case. See People v. Johnson,
227 Ill. App. 3d 800, 811 (1992).
     In sum, Prusak’s joint representation of defendant and Lowell did
not result in a per se conflict of interest. Further, defendant failed to


   7
     In any event, while not an automatic cure, the trial of codefendants
before separate triers of fact “ ‘significantly reduce[s] the potential for a
divergence in their interests.’ ” Burger v. Kemp, 483 U.S. 776, 784, 97 L.
Ed. 2d 638, 651, 107 S. Ct. 3114, 3120 (1987), quoting Cuyler, 446 U.S. at
347, 64 L. Ed. 2d at 346, 100 S. Ct. at 1718.

                                    -18-
demonstrate how an actual conflict of interest adversely affected
Prusak’s performance at defendant’s trial. The circuit court found as
more credible Prusak’s testimony that his decision not to call
defendant’s proffered witnesses was not attributable to any alleged
conflict of interest, but rather was based on trial strategy and tactics,
and Prusak’s professional judgment. After reviewing the entire
record, we cannot say that the circuit court’s finding that defendant
failed to establish a substantial violation of his constitutional right to
conflict-free representation was manifestly erroneous. Therefore, we
uphold the circuit court’s order denying defendant’s postconviction
petition.

                        III. CONCLUSION
    For the foregoing reasons, the judgment of the appellate court is
affirmed.
                                                          Affirmed.

    CHIEF JUSTICE FITZGERALD took no part in the consideration
or decision of this case.




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