People v. Wilkerson, 2016 IL App (1st) 151913 (August). Episode 229 (Duration 9:25)
Codefendant who was found not guilty paid for this defendant’s attorney.
This was a search warrant of a three-story building.
Defendant was there when the police came in and recovered drugs and guns. Defendant ran out the building when the police came in and he was seen throwing a gun on the roof.
Over 900 grams of heroin were recovered.
Defendant was convicted of possess with intent to deliver, being an armed habitual criminal, and AUUW Felon. A codefendant was found not guilty.
This codefendant was paying for this defendant’s representation. On appeal defendant claimed counsel had a conflict of interest.
Illinois recognizes two categories of conflict of interest: per se and actual conflict. Per se conflict of interest arises when certain facts about a defense attorney’s status create a disabling conflict, which is grounds for automatic reversal regardless of whether the conflict actually impacted the attorney’s performance.
In Illinois the courts have identified three per se conflicts of interest specific to criminal defense attorneys:
(2) when defense counsel contemporaneously represents a prosecution witness; and
(3) when defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.
see ¶ 216. See also Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself?; People v. Poole, 2015 IL App (4th) 130847 (September 2015); and Episode 176 Prosecutor Probably Had a Conflict of Interest
With a per se conflict there is no waiving of it. Reversal is automatic and there is no requirement of a finding of an actual conflict.
To prove an actual conflict, the accused need not prove prejudice in that the conflict contributed to the conviction, but it is necessary to establish that an actual conflict of interest adversely affected the lawyer’s performance.
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.
This was not a per se conflict of interest and there was no actual conflict. Defendant was aware that codefendant was paying for defendant’s representation, but it did not have an adverse impact on trial counsel’s performance.
It was not unreasonable for defendant’s trial counsel to argue that defendant was merely present instead of asserting that codefendant was responsible for the narcotics because it was sound trial strategy to rely on discrediting the police officer’s testimony about his vantage point.
In the evidentiary hearing about defendant’s ineffective assistance of counsel claim, trial counsel testified he and defendant discussed this strategy and both agreed to pursue this defense.
Therefore, there was not a conflict of interest that affected trial counsel’s performance.
Further, there was proof that defendant was in constructive possession of these drugs because defendant fled from the police; no one else was observed in the area besides defendant and codefendant, who also fled the scene before he was apprehended with over $3000 in cash; defendant attempted to hide a gun from police by throwing it from a window in his residence to the neighboring roof; and the storefront from which narcotics were recovered is located just below defendant’s self-admitted residence.
Also, the storefront was vacant, and defendant had no reason to be present there unless he was in possession of the drugs; both defendant and codefendant were heard inside the storefront, both fled the scene, and both were the only individuals in the area.
This evidence is enough to establish constructive possession. The recovery of Dormin (a cutting agent), scales, and a quantity of drugs much too large for personal use is sufficient to establish the intent to deliver. This evidence, when viewed in the light most favorable to the prosecution, is sufficient to establish guilt of possession with intent to deliver beyond a reasonable doubt.