FILED

September 16, 2015 Carla Bender NO. 4-13-0847 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County DEMARCO POOLE, ) No. 12CF678 Defendant-Appellant. ) ) Honorable ) John W. Belz, ) Judge Presiding. ____________________________________________________________

PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.

OPINION

¶1 In August 2013, a jury convicted defendant, Demarco Poole, of armed robbery

(720 ILCS 5/18-2(a)(2) (West 2010)), aggravated battery (720 ILCS 5/12-3.05(f)(2) (West

2010)), and theft (720 ILCS 5/16-1(a)(1) (West 2010)). In September 2013, the trial court

sentenced defendant to concurrent prison terms of 28 years for armed robbery, 5 years for

aggravated battery, and 5 years for theft.

¶2 Defendant appeals, arguing a per se conflict of interest existed during trial where

his attorney contemporaneously represented defendant and his girlfriend, Amber Graves, who

was called by the State to testify as a hostile witness. We reverse defendant's conviction and

remand with directions for a new trial.

¶3 I. BACKGROUND ¶4 On July 6, 2012, at approximately 3 p.m., three men entered Pease's Candy Shop in

Springfield and conducted an armed robbery. Brighid Gallagher, one of the employees working

at the time of the robbery, was struck in the back of the head after turning around to weigh some

candy at the request of one of the men. Gallagher was also struck in the face and sustained a

bloody nose while the men were trying to get her to open the safe. Gallagher got a good look at

one of the three robbers' faces. One of the men had a gun, which he held to Gallagher's head in

an attempt to get her to open the safe. The man told Gallagher "he couldn’t believe [she] was

going to die for [her] job."

¶5 Lindsay Nation, the other employee working at the time of the robbery, reported

one of the men put a gun to her head during the robbery. Nation was then "very aggressively"

dragged around on the floor by her hair. The man dragging her wore a green bandana to cover

his face. The men were asking her whether she was willing to die for her job and telling her they

were going to hurt her if she did not open the safe. Just prior to leaving, the men ripped down

one of the store’s three surveillance cameras. The men took $780 cash as well as the employees'

cell phones. The safe was never opened.

¶6 During the course of his investigation, Springfield police sergeant Josh Stuenkel

and Detective Stephen Welsh took a bulletin showing images from the store’s surveillance video

to a nearby apartment complex. The building manager was able to immediately identify two of

the suspects involved. One of the suspects the manager identified was defendant's brother,

Michael Poole. The store employees identified Michael from a photo array as one of the

individuals involved in the robbery. The manager also identified Towan Davis. Following his

arrest on unrelated charges, Davis confessed to his role in the robbery. However, he did not

-2- identify the other two men involved.

¶7 During their attempt to locate Michael, police visited his mother's house and met

defendant, who was there with his girlfriend, Amber Graves. Police noted defendant was "very

inquisitive" regarding their interest in Michael's arrest and asked them about any other evidence

they had. Sergeant Stuenkel "immediately recognized similarities between [defendant] and ***

suspect number [three]." According to Stuenkel, defendant's body shape and physical size were

"very similar" to the third suspect. At that point, defendant became a suspect in the robbery.

¶8 Thereafter, Graves was arrested and charged with forgery and theft offenses

unrelated to the robbery. During questioning, Detective Welsh showed Graves pictures and

video from the robbery. Graves told Welsh she and defendant were at a casino in Peoria on the

day of the robbery. Casino surveillance video from July 6, 2012, showed defendant wearing a

"lighter colored grayish T-shirt" and "some type of gym short with a stripe down the side of them

that appear[ed] to be grayish or bluish in color." (The Pease's video showed the third suspect

was wearing a grey t-shirt and grey shorts.) Police then arrested defendant.

¶9 On August 13, 2012, the State charged defendant with armed robbery (counts I and

II), aggravated battery (count III), and theft (in excess of $500) (count IV).

¶ 10 After defendant's arrest, Detectives Keith Williams and Mark Pointer interviewed

Graves. During the interview, Graves told Williams after they left the casino she drove

defendant to a house on MacArthur Boulevard so he could meet his brother Michael. Graves

stated defendant did not change clothes between the time they left the casino and when she

dropped him off to meet his brother. Approximately 20 to 25 minutes later, she received a call

from defendant who wanted her to pick him, Michael, and Davis up in the parking lot of the Don

-3- Smith paint store, which is located near Pease's candy store. After picking up the three men,

Graves heard Davis state, "I hit that bitch in the head with a gun and I don't give a fuck."

¶ 11 During defendant's jury trial, the State called Graves to the stand to testify. Before

any questions were put to her, the State asked the trial court if it could treat her as a "hostile

witness" for purposes of its direct examination. The court, absent any objection from defendant,

allowed the State's request. Graves testified she had been defendant's girlfriend for the past three

years and was in love with him. During the direct examination, the State asked Graves the

following question: "You told detectives at the time of your interview that you got back from

Peoria and dropped the Defendant off with his brother, right?" Graves responded, "I had told

them that." The State also asked Graves if she later picked defendant, his brother, and Davis up

at the paint store. Graves responded, "Yes, that's what I said." The State then asked whether she

told police Davis stated "I hit the bitch in the face with the gun." Graves responded, "Yeah,

that's what I told them." On cross-examination and again on redirect, Graves explained

statements she made to police were false and she lied to them. Graves testified her sister worked

at Pease's and she was friends with the girls who work there, which is why she was able to relate

details of the robbery to the police.

¶ 12 Tony Polk, a police informant, was in the Sangamon County jail at the same time

as defendant. According to Polk's testimony, defendant told him he and his brother robbed the

"Peas" candy store and that Graves "was supposed to be the getaway driver."

¶ 13 Following the trial, the jury found defendant guilty of armed robbery, aggravated

battery, and theft.

-4- ¶ 14 On August 20, 2013, on its own motion, the trial court held a hearing to investigate

a potential conflict of interest which had recently come to its attention. According to the court, it

was unaware of the contemporaneous representation of defendant and Graves by attorney Daniel

Fultz prior to trial. Fultz apologized to the court and explained as follows:

"[I]t wasn't a direct conflict and that's why it was less of an issue for

us in that regard because Ms. Graves's case is a forgery case that is

not a case related to [defendant's] case.

Ms. Graves had come to me regarding representation of

[defendant]. She had at some point after I began to represent

[defendant] told me that she had a pending forgery case of her own,

[and] had talked to me about representing her on that. We had talked

about my concern that I didn't know what was going to happen as far

as her testimony in his case and that could create a direct conflict.

She advised me on a number of occasions that she had lied

to the police, that she was not a witness who was going to be in direct

conflict to [defendant] because she was going to tell the Jury the truth

that she had lied to the police.

At that point because it was a potential conflict, I did ask for

a written waiver and received that, and I believe [the State] has that

and it's on file."

¶ 15 The waiver, which was signed by both defendant and Graves but undated, stated

the following:

-5- "Amber Graves and Demarco Poole [(defendant)] are aware

that the same attorney, Daniel Fultz, represents them in their pending

cases in Sangamon County. Demarco is charged with Armed

Robbery of the Pease's Candy Store. Amber is charged with cashing

a forged check. Both parties understand that, while the two cases are

unrelated, Amber could be called as a witness to testify against

Demarco in his case. Both parties waive any potential conflict that

may exist and affirmatively state that they wish for Daniel Fultz to be

their attorney in their respective cases."

¶ 16 The following discussion then took place between the trial court, Fultz, and the

Sangamon County State's Attorney, John Milhiser:

"THE COURT: *** [J]ust so the Court has an

understanding, [Graves] is considered by you to be a defense witness.

MR. FULTZ: Yeah, I mean, I will tell you that I questioned

her specifically about that issue because I was afraid that it could

create a conflict in trial if she testified in conformity with her written

statement. She told me that she had lied to the police and she was not

going to do that [on the stand]. I never—I never ever got anything to

the contrary from her. In fact, that's exactly what she said.

THE COURT: And the State called her as an adverse

witness.

MR. MILHISER: Yes, Judge, and prior to trial, we made

-6- attempts to meet with her and she refused to meet with us giving us

the indication that she was not cooperative and she was not

cooperative with the State, and then we did call her as a hostile

witness, and she did recant and indicated that the prior statements she

had given to the police were lies.

So, I mean, in essence, while she was called by us, she was,

in essence, a defense witness, and [as a result,] we called her as a

hostile witness."

¶ 17 At the conclusion of the hearing, the trial court found the following:

"I think under the circumstances *** it would appear at this

point that [Graves] was a defense witness.

I note for the record [Graves] stated on the stand they were

still in a relationship. The State called her as an adverse witness. I

think it was clear throughout that she was testifying for the

[d]efendant, and, in fact, would have testified for the [d]efendant but

for the State calling her as an adverse witness first. I don't think there

is any case law on this, but, basically, under the law as I understand

it, the [c]ourt isn't going to take any further action at this time."

¶ 18 On September 18, 2013, the trial court, noting defendant's numerous prior felonies

as well as a lack of factors in mitigation, sentenced defendant to concurrent prison terms of (1)

28 years for the armed robbery conviction, (2) 5 years for aggravated battery, (3) and 5 years for

theft. Thereafter, defendant filed a motion to reconsider sentence. Following a September 26,

-7- 2013, hearing, the court denied defendant's motion.

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant argues the trial court erred in failing to find a per se conflict

of interest on the part of his trial counsel where counsel contemporaneously represented both

defendant and Graves. Specifically, defendant contends the conflict arose when Graves testified

against him as a witness for the State.

¶ 22 The State, on the other hand, argues Graves was not a prosecution witness because

she was declared hostile and all of her testimony benefitted defendant. In the alternative, the

State maintains even if a per se conflict existed, the waiver defendant signed was sufficient to

overcome it.

¶ 23 For the reasons that follow, we find defendant's trial counsel suffered from a per se

conflict of interest due to the dual representation and the purported waiver was insufficient to

overcome that conflict.

¶ 24 A. Conflict of Interest

¶ 25 "The sixth and fourteenth amendments to the United States Constitution guarantee

the right to effective assistance of counsel." People v. Taylor,

,

(2010). "A criminal defendant's sixth amendment right to effective assistance of

counsel includes the right to conflict-free representation." Taylor,

,

. There are two types of conflicts: per se and actual. People v. Fields,

,

. We note defendant does not argue an actual conflict of interest existed.

Whether a conflict of interest exists must be evaluated on the specific facts of each case. See

-8- People v. Johnson,

,

(1992). Where, as here, the

facts are undisputed, we review the issue of whether a per se conflict exists de novo. Fields,

,

.

¶ 26 A per se conflict of interest exists where "certain facts about a defense attorney's

status were held to engender, by themselves, a disabling conflict." (Emphasis omitted.) People

v. Spreitzer,

,

(1988). When a per se conflict of interest is

shown, a defendant is not required to show prejudice resulting from the conflict in order to

obtain relief. Spreitzer,

,

(citing People v. Stoval,

,

(1968)). The per se conflict rule " 'is a rigid one, designed not

alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the

honest practitioner from putting himself in a position where he may be required to choose

between conflicting duties.' " People v. Lawson,

,

(1994) (quoting People v. Gerold,

,

, 177 (1914)).

¶ 27 The supreme 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 with the prosecution of defendant." Fields,

,

. The determinative question in this case involves the second enumerated

scenario, i.e., whether defendant's trial counsel contemporaneously represented defendant and a

prosecution witness. It is undisputed defendant's counsel represented both defendant and Graves

at the same time and that Graves was called by the State to testify at defendant's trial. We note

-9- the parties stated at oral argument the State had listed Graves as a witness for the State.

¶ 28 While the State now contends Graves was not a prosecution witness because she

was declared hostile and all of her testimony benefitted defendant, it is clear the State used

Grave's testimony to introduce her prior inconsistent statements, made during her police

interviews, as substantive evidence. See People v. Thomas,

,

(1989) (finding the witness was a prosecution witness in a per se conflict analysis

where the State extracted responses of " 'I don't remember' " in a way so as to highlight her

previous statements to police under the guise of impeachment).

¶ 29 Although Graves recanted her prior statements during her testimony, once she

admitted she made them, it became a matter of credibility for the jury as to which version of

events to believe. More important, through her testimony, the State was able to place defendant

with the other two suspects, one of whom admitted to the crime, just after the robbery. Those

statements, if believed over her live testimony, provided the link necessary to conclude

defendant was one of the three individuals involved in the armed robbery. Viewing Graves'

testimony in this light defeats any argument it was strictly beneficial to defendant. Thus, it

would be improper to characterize Graves as a defense witness. As a result, we find a per se

conflict of interest existed.

¶ 30 We note the record also demonstrates conduct which could be used in an actual

conflict of interest analysis. For example, because Graves' testimony differed from her prior

statements, the State sought to introduce audio and video recordings of her police interviews into

evidence. Not only did counsel fail to object to the State's request to introduce this evidence, he

actually acquiesced to that request by stipulating to their admissibility. The audio and video

- 10 - recordings were then played for the jury without objection. Written transcripts of the interviews

were also handed out to the jury absent any objection. We question the admissibility of the

recorded interviews where Graves admitted making the statements in the first instance, rather

than denying she made them. This example alone demonstrates defendant received less than the

aggressive advocacy to which he was entitled. See Thomas,

,

. Other examples include counsel's failure to conduct any meaningful cross-examination of

Graves or otherwise attempt to impeach her with a prior conviction.

¶ 31 However, because we find the circumstances present in this case resulted in a per

se conflict, it is unnecessary for the defendant to show actual prejudice in order to be entitled to a

reversal of his conviction. Stoval,

,

.

¶ 32 B. Waiver

¶ 33 The State maintains even if a per se conflict existed, the waiver defendant signed

was sufficient to overcome the conflict. We disagree.

¶ 34 If the record reveals a per se conflict of interest, reversal is required unless the

defendant waived his right to conflict-free counsel. Fields,

,

. However, a waiver of an existing conflict of interest is not valid unless the defendant is

admonished regarding the existence and the significance of the conflict, i.e., the waiver must be

made knowingly. People v. Olinger,

,

(1986) (citing

Holloway v. Arkansas,

, 483 n.5 (1978), and People v. Kester,

,

(1977)). Courts should attempt to "indulge every reasonable presumption

against waiver *** and *** not presume acquiescence" ((internal quotation marks omitted)

Stoval,

,

), even if counsel was retained (People v. McClinton,

- 11 -

,

(1978)). "Regardless of whether a

defendant is represented by a public defender or a private practitioner, a criminal defendant has a

constitutional right to the undivided loyalty of counsel, free of conflicting interests." People v.

Woidtke,

,

(2000) (citing People v. Coleman,

,

(1998)). In determining whether there has been

an intelligent waiver of the defendant's right to conflict-free counsel, the circumstances

surrounding the claimed waiver must be considered. People v. Washington,

,

(1984).

¶ 35 In this case, defendant was purportedly waiving his sixth amendment right to

conflict-free counsel. However, it is undisputed the trial court was not informed of the conflict

and no waiver was filed or discussed with the court prior to or during defendant's trial. It was

not until after defendant was convicted that the court, on its own motion, delved into the matter.

Because the issue came to the attention of the court after his conviction, defendant never had the

opportunity to be admonished by the court as to the potential consequences of the dual

representation. See Thomas,

,

(when a potential per se

conflict arises "the court must ascertain the extent of the risk and take whatever measures are

necessary to protect the accused's guarantee of effective assistance of counsel"). Instead, counsel

knew of dual representation prior to trial, took it upon himself to determine whether a conflict

existed, and then sought to secure defendant's waiver on his own when he thought a conflict

might be present. At best, this was improper. See Stoval,

,

("The difficulty in appropriately advising an accused of this right almost directs that counsel ***

be free from any such conflict.").

- 12 - ¶ 36 For all the State makes of the waiver, it admitted in its brief and again during oral

argument there is no way of knowing what counsel told defendant at the time the waiver was

signed. Thus, it cannot be said, on this record, the defendant was adequately informed of the

significance of the conflict. See Stoval,

,

("It cannot be said,

judging by this record, that the defendant was adequately informed of the significance of conflict

of interests *** and that he understood how a conflict could affect, sometimes subtly, a client's

representation."). Indeed, the record does not reveal whether defendant was advised of the

conflict in a way he might understand how it could affect his representation. See McClinton,

,

(for a waiver to be valid the record must show the

"defendant was adequately advised of the significance of his attorney's conflict of interest and

that he understood how a conflict could affect the attorney's ability to represent him" (citing

Stoval,

,

)). In the words of our supreme court:

"We caution attorneys in the future and remind them of their

obligation to bring to the trial court's attention any facts or

circumstances that may create a conflict of interest. Bringing the

situation to the trial court's attention would have provided the court

with an opportunity to explain the circumstances and ramifications to

defendant. Defendant could have made an informed decision about

the situation and the conflict could have been waived had defendant

so desired. Defendant was not afforded this opportunity in the case

at bar because the attorneys never advised defendant or the trial court

of the facts." People v. Hernandez,

, 896 N.E.2d

- 13 - 297, 308-09 (2008).

¶ 37 In sum, we are left with no choice but to reverse defendant's conviction and remand

for a new trial. See People v. Daly,

,

(2003).

In so concluding, we find no double jeopardy bar to retrial where the evidence presented against

defendant was such that a rational trier of fact could have concluded he was proved guilty

beyond a reasonable doubt. People v. Ward,

,

. However,

we note our determination regarding the evidence is not binding on retrial, and does not express

our opinion as to defendant's ultimate guilt or innocence. People v. Jackson,

,

.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, we reverse defendant's conviction and remand for a new

trial. Because we conclude the evidence was sufficient to convict defendant, no double jeopardy

impediment to retrial is present.

¶ 40 Reversed and remanded with directions.

- 14 -