# Petition — Wolf v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 833

## Text

Supreme Court of the United Stutes

Ocroner Term, 1978

LOUIS WOLF,
Petitioner,
VS.
PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS

HARVEY M. SILETS
SILETS AND MARTIN, LTD.
10 South LaSalle, Suite 400
Chicago, Hlinois 60603
312/263-5800

Counsel for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

SUBJECT INDIGX

PAGE
Opinion below Rg |
Jurisdiction ——. ; ert ay EE Rae ree |
Questions presented hee 2
Constitutional provisions involved teh, 3
The manner in which the federal elaim was raised _.. 3
Statement of the case | | mss a fe 4
Reasons for allowing the writ = 12
oo cc icwietcanscomsnmodibecciniscmmoeosece 20
Appendix A

Opinion of Illinois Appellate Court) 0000000... App. 1
Appendix B

Opinion of Hlinois Supreme Court... _.App. 14

Appendix C—

Supplemental opinion of Hlinois
Supreme Court 2... Seapeaagacy ieiiicadass e<cocies CAMARGO

il
TABLE OF AUTHORITIES CUPED

Cases

Brady v. Maryland, 878 U.S. 83
Holloway v. Arkansas, 435 U.S. 475
Miller v. Pate, 386 U.S. 1

Napue v. Hlinois, 360 U.S. 264

People v. Berland, 52 Hh App. 8d 96 (Ist Dis. Fourth

PAGE
li

1Z

Division 1977) _ ............. 14
Pyle v. Kansas, $17 U.S. 218 19
Smith v. Regan, O83 F.2d (2nd Cir. 1978) _. 16
United States v. Agurs, 427 U.S. 97 17
United States v. Alvarez, O8O I.2d 1251 (Sth Cir. 1978) | 16
United States v. Donahue, 560 F.2d L089 (ist Cir.

1977) 16
United States v. Foster, 469 I.2d 1 (ist Cir. 1972) 16
United States v. Levy, 077 F.2d 200 (Srd Cir. 1978) 16
United States v. Mandell, 025 F.2d 671 (7th Cir. 1975) 16
United States v. Waldman, 579 F.2d 649 (Ist Cir.

(1978) Se enh SOT a eee

Other Authorities
ABA, Standards Relating to the Administration of

Justice —Funection of the Trial Judge Seetion 3.4(b)

at 171 (1974) 16
Sixth Amendment to United States Constitution ......15, 16

Iu the
Supreme Court of the United States

Qceronen Term, 1978

No.

LOUIS WOLF,

Petitioner,
VB.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS

I.
OPINION BELOW

The opinion of the Supreme Court of Illinois, review of
which is sought, is reported as People v. Berland, ..... .
Perey 9 | Rae and is set out in full in Ap-
pendix B. Petitioner was convicted in the Cireuit Court
of Cook County, Illinois after a bench trial of violating
Section 20-1 (b) of the Criminal Code of 1961 (TIL. Rev.
Stat. 1969, Ch. 38, Para. 20-1 (b)); he was sentenced to
serve a term of one and one-half to four and one-half years
in the Illinois State Penitentiary and fined $10,000.00. His
conviction was originally reversed by the Illinois Appellate

9)

~

Court, First District, Fourth Division, on August 11, 1977.
People v. Bertand, 52 We App. 3d 96, (Ist Dist. 1977). That

opinion appears in Appendix A. The Supreme Court of

IHinois heard the case on appeal by the state and ultimate
ly reversed the Appellate Court in May 1978. The Ulinois
Supreme Court denied Louis Wolf?’s petition for rehearing
on February 20, 1979, in an opinion which is recorded at

Ill. 2d ; N.M. 2nd (1978). ‘This opinion
is set out in Appendix C.

II.
JURISDICTION

The order of the Hlinois Supreme Court was entered on
Mebruary 20, 1979. This Court’s jurisdiction is invoked
under 28 U.S.C., $1257 (3). This Petition for a Writ of
Certiorari is filed within 90 days of that order.

ITI.
QUESTIONS PRESENTED FOR REVIEW

I. Is a defendant’s Sixth Amendment right to effective
assistance of counsel violated where the trial court (though
not requested to do so) fails to admonish jointly repre-
sented co-defendants about the possible confliets inherent
in dual representation and fails to inquire whether each
defendant has voluntarily and with full knowledge of the
consequences decided to aceept such representation.

2. Must a defendant make a showing of an actual con-
flict of interest manifested at trial (and if so, to what ex-
tent) in order to prevail in a constitutional claim of in-
effective assistance of counsel due to joint representation
of co-defendants by a single attorney.

3. Whether a defendant’s Fourteenth Amendment right

to Due Process of law is violated when the prosecution in-
tentionally misrepresents the identity of their key eye-

3

witness in a criminal prosecution in order to suppress the
earlier inconsistent testimony which she gave at a related
civil trial?

IV.
CONSTITUTIONAL PROVISIONS INVOLVED
UNITED STATES CONSTITUTION
Amendment V1

In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and District wherein the crime shall
have been committed, which District shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confront
ed with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to
have the assistance of Counsel for his defence.

Amendment XIV

Section 1. All persons born or naturalized in’ the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immuni-
ties of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

V.

THE MANNER IN WHICH THE FEDERAL
CONSTITUTIONAL CLAIM WAS RAISED

Petitioner Wolf first raised his Sixth Amendment right
to counsel in the Appellate Court of Illinois, First District,
claiming that his attorney’s joint representation of he and
his co-defendant had deprived him of his right to effective
assistance of counsel. The Appellate Court reversed Peti-
tioner’s conviction relying, in part, on the fact that he had

4

been deprived of his constitutional right of effective as-
sistance of counsel. The Ilinois Supreme Court, however,
reversed the lower court's decision after an appeal by the
State. Petitioner then filed a petition for rehearing, again
asserting that his Sixth Amendment right to counsel had
been violated; the Illinois Stpreme Court denied this
petition.

Petitioner initially raised his Fourteenth Amendment
right to due process of law by making a specifie request
for Brady material from the State. This right was next
asserted in a post-trial motion for acquittal in the trial
court after the defendant discovered that the State had
fraudulently suppressed exculpatory evidence. Petitioner
then raised his claim in the Illinois Appellate Court, First
Distriet, which reversed his conviction. Subsequently, while
the State’s appeal of his acquittal was pending in the IIli-
nois Supreme Court, Petitioner discovered additional evi-
dence that the State had suppressed. As a result, he filed
another post-trial motion for acquittal with the trial court,
again asserting his right to due process of law. The trial
court denied this motion. Petitioner then raised this issue
with the Ilinois Appellate Court, First District. This ap-
peal was consolidated with the State’s appeal in the Illinois
Supreme Court. In its initial opinion, the Ilinois Supreme
Court did not address Petitioner’s claims for relief on
this issue. Ultimately, however, the Hlinois Supreme Court
denied Petitioner relief on these claims, in a supplemental
opinion that it filed in regards to his request for a_re-
hearing.

VI.
STATEMENT OF THE CASE

Petitioner Louis Wolf, along with Albert Berland, was
indicted for arson of a building with intent to defraud an
insurer, Both men were also charged with conspiracy to

5
commit arson (the act in furtherance of the conspiracy
allegedly being the setting of the fire by Wolf). In addh-
tion, Wolf, alone, was charged with arson to damage the
property without the consent of the owner. The owner of
the building in issue was Albert Berland.

The case was tried before the Cireuit Court of Cook
County, Illinois, without a jury. Count I of the indictment,
which charged Louis Wolf alone with setting the fire, was
dismissed at the close of the State’s case. Count IIT of the
indictment, which charged conspiracy, was found to — be
barred by the State statute of limitations. The trial court
entered a judgment of guilty for both defendants with
respect to Count [larson with intent to defraud an in-
surer. The Hlinois Appellate Court, First District, im a
unanimous opinion, reversed this judgment. People v. Ber-
land, 52 WN. App. 3d 96. The Appellate Court based its re-
versal, in part, on the fact that joint representation of these
defendants for most of the trial by one attorney and
throughout the State’s case had deprived cach of them of
their constitutional right to effective assistance of counsel.
The Illinois Supreme Court reversed the lower court and

reinstated these convictions, —...... Th 2d... OSH a2 N.I. 2d

ache A subsequent Petition for rehearing on behalf of

Petitioner Wolf was also denied. a) tS Bee
BACKGROUND

On November 19, 1969, at about 11:30 a.m., a fire occurred
in a 12-unit, three-story apartment building at 715 South
Lawndale in the City of Chicago. (R. 90, P.lsx. 11)" An

! References to Exhibits herein are as follows: People’s Exhibits,
Sp. Ex: *. Defendants’ Exhibits, “D.lex. 2..." ; Exhibits to
Motion of Defendant Wolf for New Trial, “Pet. Ix. ......”, The
State’s Petition for Leave to Appeal is referred to as “S.Pet.”
R. .... indicates a reference to the transcript of the trial; R.C. ......
indicates a reference to the common law record.

6

investigator from the Chicago Fire Department determined
that the fire was caused by the ignition of a flammable
liquid in a bathroom in one of the third-floor apartments,
(R. 165-71). The fire was of limited extent.

The building was owned by Albert Berland through a
fitle-holding proceedure commonly known in Ulinois as a
land trust, (PL lx. 5 at 68; PLEx. § at 301-04). Berland
had paid $18,000 for the building in 1966, and spent ap
proximately $29,000 in repairs thereafter, (P. lx. 5 at 4-9).
In June, 1969, Berland applied for a $100,000) insurance
poliey on the property. (R. 63-64). In order to obtain full

compensation for any partial damage to the building, Ber’

land was required by the terms of his poliey to insure the
building for at least 80% of its ‘aetual value’? — replace-
ment cost less depreciation. (BR. 400-01).

Berland filed an insuranee claim for the loss he had sus-
tained in the fire, and, when the insurer refused to pay
the claim, Berland brought an action against the insurer
in the United States District Court for the Northern Dis
trict of Hlinois, in the name of his trustee bank. Lawndale
National Bank v. American Casually Co, No. 70 C519 (NLD.
Hl.) In defense of this lawsuit, attorneys for the insurer,
principally Mdwin MeCarthy of Chieago, took deposi
tions of Berland and Louis Wolf (P.Es. 16) and inter-
viewed witnesses to the fire * (RR. PES 20, 148-50; Re C141-
44). Agent Thomas Bege of the Hlinois Bureau of In
vestigation interviewed witnesses in conjunetion with Mr,
MeCarthy’s trial preparation. (R. C129-36; C1!8-40; C141.)
At trial, the insurance company attempted to show that

* Two of these witnesses, Albert Kyles and Evelyn Mayberry,
a/k/a Elizabeth MeGowan a/k/a Mrs. Roosevelt’ McGowan, were
the key witnesses at the criminal trial of the Petitioner. Mayberry,
it was later revealed, gave testimony at the civil trial that sharply
conflicted with her testimony at the trial of the criminal case. See

p. 10, infra.

7

(1) Berland’s poliey had been procured by a fraudulent
application and (2) Wolf, aeting on behalf of Berland, had
set the fire. Both Berland (Pix. 7) and Wolf (P.Isx. &)
testified. A jury found in favor of the insurance company
ina general verdict, but a new trial was ordered on appeal,
The Court of Appeals held that the claim of a fraudulent
application was insufficient in law, and that arson had not
been conclusively proven. Lawndale National Bank vy.
American Casually Co,, ISO 2d 1384, 1389 (7th Cir, 1973).

On May 11, 1973, almost four years after the fire, the
Grand Jury returned an indictment against the Petitioner
and Albert Berland for their alleged role in the fire. ‘The
trial of their ease took place in January of 1974. At trial,
the State’s ease rested primarily on the testimony of two
alleged eyewitnesses to the fire Albert Kyles and Evelyn
Mayberry. These two witnesses related conflicting stories
regarding the time they allegedly saw the defendants
entering the building in issue and the equipment
these men had with them. In addition, both wit
nesses related a deseription of the Petitioner, who they
asserted they saw enter the building just before the fire,
that eonflieted with his actual appearance at the time."
Interestingly, their deseription matehed with a pieture of
the Petitioner whieh predated the fire and whieh had been
shown to them four years earlier by attorneys involved in
defendant Berland’s eivil suit against the insuranee eom

pany.

* During the years, 1964-1967, Petitioner Wolf was bald. In
1967, he received a hair transplant so that at the time of the fire,
he had a full head of hair. Subsequently, that hair began to fall
out and thus by the time of trial he was, once again, partially bald.
(R. 468.69; 496-98). Kyles identified the Petitioner in court as the
man that he had seen, but he appeared to have less hair at the time of
the fire. CR. 112-13).

8

Petitioner Wolf offered alibi evidenee that placed him in
downtown Chicago at the time of the fire; three separate
witnesses testified to that effeet for the defense. CR. 118
120; 149-150) In addition, Petitioner Wolf, although ad-
mitting both his close friendship with Berland and = that
he had done some work for Berland at his property as a
personal friend, offered uncontradieted testimony that he
received no payments from Berland for any work that he
did for him, and that he had no interest in the insuranee
policy or the building in issue. (R. 499-500; R. 465-467 ;
P.Ex. 1 at 19-22).

As noted previously, the trial court entered a judgment
of guilty on one of the three counts of the indietment
against both of the defendants; the other eounts had been
dismissed.

CONFLICT OF INTEREST

On May 7, 1973, while the Lawndale case was awaiting
decision on appeal, and approximately 36, years after the
fire at 715 South Lawndale, an indietment was returned
against Berland and Wolf in connection with the fire. (R.
(1-7) As noted previously the indietment was in- three
counts: Count | eharged that Wolf, alone, had violated
Ill. Rev. Stat. 1969, eh. 38, $20-1 (a) (arson or damage to
property without eonsent of owner) (R. C4); Count II
charged that both Wolf and Berland had violated Th Rev.
Stat. 1969, eh. 38 $20-1 (b) (arson or damage to property
with intent to defraud an insurer) (R. C5); Count TI
charged both Wolf and Berland with conspiraey to commit
arson, in violation of TIL Rev. Stat. 1969, eh. 38, $8.2 (Wolf
was alleged to have set the fire in furtherance of this coen-
apiracy) (R. C6).

On May 17, 1974, the defendants were arraigned. (R.
(11) Clarence Dunagen appeared as counsel for both
defendants. (R. C9-10). At no time during the arraign-
ment, or in any of the subsequent proceedings, did the

9)

Court inquire about the potential confliet of interest in
Dunagen’s representation of both Berland and Wolf, or
advise the defendants about any potential impairment of
their individual defenses that could oeeur as a result of
their joint representation by counsel (R. C1113).

On January 14, 1974, each defendant waived jury trial
(R. C4851). The trial began with both defendants still
represented only by Dunagen (R. 1-33). At the beginning
of trial, the State introduced the depositions and trial
testimony of Berland and Wolf in the Lawndale ease, with
out objection from Dunagen (R. 24).

The trial continued, after a one-day recess, on January
17, 1974. On this day, the State put on the bulk of its
ease (R.O4-185), ealling all of its witnesses except an em-
ployee of the Cook County Clerk's office who testified about
a seareh of records (R, 205-11). On this day, too, both
defendants were represented only by Dunagen. Because
Berland required hospitalization, the trial did not resume
until January 28, on whieh date the State rested its ease
(R. 258). In the interim, Wolf obtained additional eoun
sel, Jack G. Stem (R. 202). At the suggestion of the trial
court, and after argument, the State then nolle prossed
Count |of the indietment CR. 821). On January 24 and 25,
the deferse was presented (R. 322-512), and, after rebuttal
and surrebuttal witnesses testified and closing arguments
were made, the Court entered judgment against both de-
fendants on Counts TP and TIL (R. 609-616),

Additional and separate counsel appeared for each de
fendant to present post-trial motions (R. 617-20), Finding
that conspiracy charges against defendants were barred
by the statute of limitations, the Court granted a motion
in arrest of judgment as to Count TIT (R. 889-92). How
ever, the Court denied motions for new trial, whieh ques
tioned the sufficiency of the evidenee and the adequaey of

10

defendants’ representation by counsel (R, 892-903). Kach
defendant was thereafter sentenced on Count TT to serve
a prison term of Th4 to dt, years, and was fined $10,000
(R. 927).

BRADY ISSUE

Prior to trial, the defendants made a request for Brady
material from the State. After the trial was completed, it
was discovered that the State had suppressed the fact that
KMvelyn Mayberry also went under the names of Mlizabeth
MeQowan and Mrs. Roosevelt MeGowan. Indeed, the State
not only failed to reveal this faet, it actually listed these
two names as separate persons on the witness list it pro-
vided to the defense (R. 87-88). The signifieanee of this
cannot be appreciated without first knowing that at— the
civil trial (Lawndale National Bank, supra) Mayberry tes
tified under the MeQGowan name and gave conflieting tes
fimony to that whieh she gave at the eriminal trial, Spe-
cifically, when insurance counsel asked Mayberry whether
she was able to see the faees of the two men who went into
the building on the day of the fire, she stated;

A. No, they had their backs turned, their backs
was to my window (Pet. Mix. 4 at 58).

When subsequently asked if she had, at any time, seen
the faces of the men, she replied;

‘Not that day’? (/d. at 58),

This was direetly contrary to her testimony at the eriminal
trial.

In addition, Petitioner Wolf found that the State had
suppressed various police reports; a fire department. re-
port which gave details regarding a one man pieture show-
up that had been eondueted by the Tlinois Bureau of Tn-
vestigation and the law firm representing the insurance

company in Levwidale National Bank, supra (Gat that show
up Albert Kyles and Hyvelo Mayberry were shown a police
moe shotoof Petitioner Wolf and asked if he was the man
they had seen on the day of the fire); ond, a list of other
Witnesses whe the polices had anters ewed and who gave
contradictory stories to that of Ky.es and Mayberry,

As a result, Petitioner Wolf filed a writ of coram nobis
with the trial courts this motion was denied. Petitioner
Wolf appealed this ruling to the Appellate Court of Th
nois, First) Distriel. Subsequently, other reports eon
trary to festimony of a) fire offieial who testified that
the fire had been enused by arson, also were diseovered
by Petitioner Wolf to have been suppressed. Again, he
petitioned for relief from the trial court on the basis of this
additional newly discovered exeulpatory evidenee, Onee,
again, the trial court denied Wolf's motion. This: ruling
was alse appealed to the \ppellite Court of Tlinois, First
Distriet. Both of these appeals were later consolidated
with the State’s appeal in the Tlinois Supreme Court of
the Hlinois Appellate Court's reversal of Wolf's convie
tion. The THlinois Supreme Court, while failing to address

these issues in their original opinion, See Tl. 2d
Nw. dl. denied Wolf's appeal inal supple

mental opinion denying his Petition for Rehearing,

?

12
VII.
REASONS FOR ALLOWING THIS WRIT

A. TO ALLOW THIS COURT THE OPPORTUNITY TO
RESOLVE THE FOLLOWING IMPORTANT CON.
STITUTIONAL ISSUES, WHICH THIS COURT
HAS STATED ARE RIPE FOR REVIEW, AND
WHICH WERE EXPLICITLY LEFT OPEN IN
HOLLOWAY v. ARKANSAS: WHETHER, UNDER
THE SIXTH AMENDMENT, A TRIAL JUDGE,
SUA SPONTE, MUST ADVISE CO DEFENDANTS
OF THE DANGERS OF JOINT REPRESENTATION
IN THE ABSENCE OF NOTIFICATION OF ANY
POTENTIAL CONFLICT OF INTEREST BE
TWEEN THEM, AND MAKE INQUIRY INTO THE
POSSIBILITY OF ANY CONFLICT OF INTEREST;
AND, WHAT DEGREE OF CONFLICT, IF ANY, IS
NECESSARY IN A CASE OF JOINT REPRESEN
TATION OF CO DEFENDANTS TO REQUIRE THE
REVERSAL OF CONVICTIONS OF ONE ON THE
GROUND THAT HE HAS BEEN DENIED EFFEC-
TIVE ASSISTANCE OF COUNSEL.

In /lolloway vo Arkansas, 485 US. 475, this Court ex
plicitly stated that the preeise constitutional issues that
are presented by the instant case remain unresolved at this
time. Moreover, in Molloway it was clearly reeognized
that the cirenits are divided in this area, and that these

issues are ripe for review by this Court:

IC jourts have taken divergent approaches to two
issues egmmontly raised in challenges to joint repre
sentation where unlike this ease trial eounsel did
nothing to advise the trial eourt of the aetuali-
ty or possibility of a econtlet between his... . elients’
interests. First, Appellate Courts have differed on

13

how strong a showing of conflict must be made, or
how certain the reviewing court must be that the as.
serted eonfliet existed, before it will conclude that the
defendants were deprived of thei right to the effee
tive assistanee of counsel, (Citations omitted). See-
ond, courts have differed with respeet to the seope and
nature of the affirmative duty of the trial judge to as
sure that eriminal defendants are not deprived of their
right to the effeetive assistanee of eounsel by joint
representation of econflieting interests. (Citations
omitted),

We necd not resolve these two issues in this ease,
however, /olloway vo Arkansas, supra at 483-484,

In the case at bar, the exaet questions this Court did not
resolve in /Tolloway are at issue. Petitioner Wolf was
charged in three separate counts of a State Grand Jury
Indietment: Count T eharged Wolf alone with knowingly
damaging the property of another without his consent the
property in question was owned by his co-defendant, Ber
land; Count TE charged Wolf and his eo defendant Berland
with knowingly committing arson with intent to defraud an
insurer and: Count Tb ehargved Wolf and his eo defendant
serland with conspiracy to commit arson. Both the Peti
tioner and his co-defendant were jointly represented by
the same counsel from the pre-trial hearings up through
the presentation of the State’s case-imehief."

The inherent confhiet between the Petitioner and his eo
defendant was clear, As a result of Wolf being charged
individually with committing arson to the building in ques
tion without Berland’s consent, it was in Berland’s best

‘At that time, Wolf obtained additional counsel. In addition, at
the end of the State's case, Count Toof the indictment charging Wolf

with damaging Berland’s property without his consent, was dismissed

Interest to demonstrate that Wolf did indeed burn his bald
ing without crther his knowledge or consent Prom thei
Jornt counsel's port of view, if he were to erose eqamine
the Mtatets eye witness to the effeet that they only saw

Wolf at the seene of the ineident, and not Berland, it

would confer a benetit upon Berland while canmultaneously

mening severe damage to Wolf's chaness for aequittal
Mn the other band, of he were to eroas examine sueh wat
nesses fo the effeet that Gerland wae at the building that
Hay, he would antomatioally gain aequittal for Wolf on
Count Poof the indietment while dome severe damage to

his other ehent’s (Berland) ability to be found not guilty.

In neldition, should teal counsel have purenedd ereses
examination of the State's eve witnesses that, in faet, only
Berland was preaent that day, he would have won neduittald
for Petitioner Wolf on all three counts while crnultanednus
ly having shifted allof the blame, and of course, the erunt
nal liability, onto his ehent Berland The UHlinots Appel
late Court, in reversing Petitioner's convietion, relied, an
part, on the grounds that he was dented hie constitutional
night to effeetive nesistanee of eounsed, stating that the
native Of the indietment alone would “Onale i impossible
for a single Atlorney to represent both defendanta’ Peo
ple vo Rerland, 58 WN App Sel 96, 100 (iret Distriet,
Mourth Division LOV7)

Despite the obvious eonthet of interest tint jou repre
sentation ereated for them attorney, the trink judge neither
conduetod an inquiry regarding the severity of sueh a eon
Het, nor advised the co defendants of the implications that
aueh representation could have on ther ability te obtains
adequate assetanee of counsel in the defense of their in

(hividual eases. That the teint judge inetanth: should have

realized the aherent eonfliet belweoen these co defendants

i obyviotes

Jn the ease at bar, the tral yudge should have per
corverbat the outset of the tral [that| there existed the
possibility of defenses for the defendants whieh of
neeessiby would bean conthet, People vo Herland, aupra
at 10001

Admittedly, in this ease, “tral counsel did nothing to ad
view The tral court of the actuality or possibilty of a eon
fliet between has chent’s interests’? Molloway v, Arkan
eas, euprea at ABS Vet, this ie the preeime pomt at mene
inenses suelo as this Does a trial judge have a duty under
the Saxth Amendment to determine if a serious eonfliet
Of interest is created by the jornt representation of eo
defendants at a cromimal tral? Moreover, in eases where,
as here, the confiel is so apparent, does not the triad judge
have aduty to alert eo defendants to the possibility that
them gout representation might resull ina serious Wpaae
meontof ther Sicth Amendment rght to effective assistance

of counsel at trrab?

Mirthermore, another serous question that is ratsed in
this area is, assnming that the trial judge fails to impart
such warnings fo the defendant, then, what degree of prey
thee moet the defendant demonstrate on order to show that
his Sixth Amendment rights have been violated? In those
Juredietions that require such warnings, farlire of the
Judge to adequately alert the defendant to the dangers of
jot representation is per se violative of the Sixth Amend
ment, Unled States vo Waldinan, 579 P2649, GOL Cleat Cin

“Tt would seem that ouch aquines by the taal court especially
are required in enees where, as here, there are serious allegatiuots that
are substantiated by the record that the codefenmdant’s trial counsel

was oun fact imeconpetent

16

1978).° See United States vy. Alnares, SSO F.2d 1251, 1259
60 (Sth Cir, 1978); Vnited States vo Levy, OTT F.2d 200, 211
(3rd Cir. 1978); see also ABA, Standards Relating to the
Administration of Justice -Funetion of the Trial Judge
Section 3.4 (b) at 171 (1974).

In those jurisdictions that do not require sueh warnings
by the trial judge, the standards for showing a constitu.
tional violation as a result of joint representation varies.
See, eg. Smith vy. Regan, 583 F.2d (2nd Cir, 1978); United
States v. Mandell, 525 Vd 671, 677 (7th Cir, 1975). In

Holloway, supra, this Court decided that it} was per se

violative of a defendant’s Sixth Amendment rights for a
trial court to require joint representation over objection
hy trial counsel. Thus the questions left) open for this
Court, and which are presented in the present case, are as
follows :

1. Is ita per se violation of the Sixth Amendment for
atrial judge to permit joint representation to eon

*In Waldman, the Court, quoting from United States v. loster,
469 F.2d 1 (lst Cir. 1972), stated:
[1 ]t shall be the duty of the trial court, as early in the litiga-
tion as practicable, to comment on some of the risks confronted
where defendants are jointly represented to ensure that defen-
dants are aware of such risks, and inquire diligently whether
they have discussed the risks with their attorney, and whether
they understand that they may retain separate counsel appointed
by the Court and paid for by the Government,
The Court went on to state that trial judges should advise defen-
dants that “it [is] possible with respect to particular defenses and
particular decisions such as whether or not to take the stand, or
to call particular witnesses, or to ask particular questions on cross
examination—that what [is] in one defendant's best interest would
turn out not to be in the others.” United States v. Waldman, supra
at 652 n.4 quoting United States v. Donahue, 5600 F.2d 1039, 1043-44
(Ist Cir, 1977). In the instant ease, the THlinois Supreme Court
rejected this precise approach. People v. Berland, Il. 2d.
N.E. 2d (1978).

17

tinue when he has failed to make an inquiry into
the possibility of a conflict between eo-defendants,
ov has failed to advise sueh defendants of the dan-

vers of sneha conflict?

2. Alternatively, what degree of confliet, and what de
gree of prejudice arising from that confliet, must the
defendant demonstrate before e& constitutional viola
tion will be found?

The importance of these questions has already been ree-
ognized by this Court. The difficulty in) promulgating a
eloar standard for the resolution of these questions is dem-
onstrated by the eonfliet that exists in the varying juris
dictions. Mor these reasons, Petitioner urges this Court to
grant Certiorari in the case to answer these important Con
stitutional questions.

B. TO DETERMINE WHETHER INTENTIONAL MIS.
REPRESENTATION OF EVIDENCE BY A PROSE
CUTOR THAT RESULTS IN SUPPRESSION OF
CRITICAL IMPEACHMENT EVIDENCE OF AN
EYEWITNESS FALLS WITHIN THE PURVIEW
OF THIS COURT’S MANDATE IN BRADY v.
MARYLAND AND UNITED STATES v. AGURS.

In Brady ve. Maryland, 878 US. 83, this Court held that a
prosecutor’s suppression of evidence ‘material to a defen-

”

dant’s guilt or innocence’? is violative of due process. Sub-

sequently, in United States v. Aqurs, 427 U.S. 97, elear
standards were set forth regarding the degree of ‘ma-
teriality’’ that was necessary for the suppression of such
evidence to require reversal of a defendant’s conviction.
Both Brady and Agurs involved cases of complete sup-
pression of evidence by the prosecution until after trial.
Consequently, whether a prosecutor’s misrepresentation
of evidence that resulted in the effective suppression. of
evidenee was left open in these decisions. The instant ease

18

involves just such a situation and is thereby ripe for review
by this Court,

In the ease at bar, the Petitioner Wolf was convicted
of arson with intent to defraud an insurer. The gist of the
incriminating evidence whieh led to the convietion of the
Petitioner was the testimony of an eyewitness, Kvelyn
Mayberry, who stated that she saw the Petitioner drive
up in front of the building in question with another man
ina station wagon (R. 185-196). Mayberry further stated
that the Petitioner then got out of the ear, removed a silver-
eolored gas ean from the back of the station wagon, and
then went into the building with the other man (CR. 187-139).
Mayberry’s identification of the Petitioner was based, in
part, on the faet that she had seen him on three other oe-
vasions at the building in the three days previous to the
fire (R. 140-148),

The impact of a positive identification of a defendant at
the seene of a erime with the instrumentality of the erime
in his hand is obvious. Thus, it would have been eritieal
to the ultimate verdict in this ease had the defense been able
to impeach Mayberry’s testimony. At trial, however, the
defense was unaware of any contradictory statements that
had been made by Mayberry. Yet, in fact, highly contra-
dictory statements had been made by Mayberry—under a
different name. Mayberry, at the related civil trial, gave
testimony that was completely contradictory to her testi-
mony at the eriminal trial.” Mayberry testified at that trial,

? In her testimony at the civil trial, in direet contrast to what she
stated at the criminal trial, Mayberry testified that she never saw
the face of the man she later identified as Wolf. Referring to the
date of the fire, insurance counsel asked Mayberry whether she was
able to see the faces of the two men and Mayberry replied that she
could not see their faces because they had their backs to her window.
The critical value of this impeaching evidence cannot be under-
stated; clearly it undercuts Mayberry’s identification of Wolf at the
scene of the fire on the day in question.

19

however, under the name of Hlizabeth MeGowan,. Thus,
after Mayberry testified at the criminal trial under the
name of Kvelyn Mayberry, the defense, not knowing she
was the same individual as Klizabeth MeGowan, could
not impeach her with her prior inconsistent testimony.

That Mayberry’s true identity was suppressed, although
deplorable prosecutorial conduet, is not the eritical issue
here. The unique issue here, and the one upon which this
Court has yet to rule, arises out of the faet that the proseeu
tor intentionally misrepresented the Mayberry/MeGowan
identity by listing Kvelyn Mayberry and Elizabeth Me-
Gowan as different people on the witness list whieh they
supplied to the defendants. The proseeution’s rationale
in doing this was elear: to prevent the defense from dis.
covering that MeGowan and Mayberry were the same indi-
vidual and thus prevent the defense from impeaching May-
herry with her prior ineonsistent testimony at the eivil
frial,

This Court consistently has held that the knowing use
of perjured testimony by the prosecution is fundamentally
unfair and constitutes grounds for reversal. Miller v. Pate,
386 US. 1; Napue ve Minors, 860 US, 264; Pyle v. Kansas,
B17 U.S. 218. In those eases this Court vigorously at-
tacked the type of outrageous prosecutorial behavior that
is presented by the facts of this ease. Moreover, in Agurs,
this Court stated that Brady clearly applies to situations
where the prosceution suppresses evidence whieh demon.
strated that the proseention’s ease contained perjured tes-
timony. United States v. A@ers supra at 108.

The instant case is extremely similar to the type of ease
which this Court was referring to in Agurs, with one eriti-
eal exeeption: here the prosecution did not merely sup-

20

press material exculpatory evidence, but it intentionally
misrepresented such evidence with the same results. In
view of this Court’s previously noted abhorrence to sueh
outrageous prosecutorial gamemanship, and the mockery
that such actions make of the principles of Brady, and in
light of the fact that this Court has yet to rule on this new
type of suppression of evidence, Petitioner urges that Cer-
tiorart be granted in this case,

CONCLUSION

For the reasons set out above, Petitioner respectfully
submits that the petition for certiorari should be granted.

Respeetfully submitted,

Harvey M. Siets
Sivers and Martin, Lr.
10 South LaSalle Street
(‘hieago, Hlinois 60603

Counsel for Petitioner

APPENDIX

APPENDIX “A”

THE PROPEL OF THE STATIC OF TLEEINOTS,
Plaintilh Appellee,
»,

ALBERT BERLAND (Impleaded) ef af.
Defendants-Appellants.

Kirst District (4th Division) No. 60932
Judgments reversed,

Opinion filed August 11, 1977.

Mr. PRESIDING JUSTICE DIERINGER delivered the
opinion, of the court:

This is an appeal from the eirenit court of Cook County.
The defendants were convieted after a bench trial of vio-
lating seetion 20--1(b) of the Criminal Code of 1961 (TIL
Rev. Stat. 1969, ech. 38, par. 20--1(b). Seetion 20—1(b)
provides: “A person commits arson when, by means of fire

*

or explosive, he knowingly: * ~ * [with intent to defraud
an insurer, damages any property or any personal prop-
Both defendants
were sentenced to terms of 1! to 4% years in the Tlinois

State Penitentiary and fined $10,000.

erty having a value of $150 or more.’

Although both defendants were represented in the trial
court by the same attorney, they have each retained sep-
arate counsel for the purposes of this appeal. Accordingly,
we shall treat each of their appeals individually, as they
both raise distinet questions for review.

Defendant Wolf raises six questions for review. (1)
whether or not he was denied effeetive assistance of counsel

App. 2

by the incompetence of his trial counsel and the dual
representation of himself and his co-defendant by the same
counsel; (2) whether or not the State failed to prove be-
yond a reasonable doubt he had the ‘‘intent to defraud an
insurer’’; (8) whether or not there was sufficient evidence
to prove the guilt of the defendant where there was no ade-
quate and credible identification of the defendant; (4)
whether or not the defendant was denied his due process
rights by the failure of the State to disclose the ‘dual
identity’? of a key State’s witness; (5) whether or not the
trial court erred in admitting as substantive evidence prior
statements of a nontestifying co-defendant; (6) whether or
not the State failed to prove the corporate existence of the
company alleged to have been defrauded. Defendant Ber-
land adopts these issues insofar as they are applicable
to him and raises two additional questions for review: (1)
whether or not his trial counsel had a conflict of interest in
that he was representing a co-defendant who was charged
with the commission of a felony against the interests of
Berland, whether or not his trial counsel was incompetent
in failing to ask the trial judge to limit his consideration of
statements made by each defendant to that defendant,
failing to impeach a principal State’s witness, failing to
contredict the other principal State’s witness concerning
his presence at the scene, and failing to introduce evidence
to explain the insuring of the building; (2) whether or
not the defendant was proven guilty beyond a reasonable
doubt.

Since both of the convictions arose out of the same occur-
rence, one statement of facts wiil suffice for both defen-
dants. On June 30, 1969, the Illinois Fair Plan Associa-
tion received an application for insurance covering the
building at 715 South Lawndale, Chicago, Illinois, from
Albert Berland, the owner. Insurance coverage in the

App. 3

amount of $100,000 was issued on August 13, 1969, by the
American Casualty Company, On November 19, 1969,
the building at 715 South Lawndale burned. By the testi-
mony of Chicago Fire Department investigators, it is ap-
parent the cause of the fire was arson. Gn May 11, 19738,
almost four years later, the grand jury returned a two-
count indictment against Albert Berland for the offenses
of arson with the intent to defraud an insurer, and con-
spiracy to commit arson, Defendant Wolf was charged
in another indictment with the offenses of arson, in that he
burned a building without the owner’s consent, arson with
the intent to defraud an insurer, and conspiracy to commit
arson. The defendants were tried jointly in a bench trial
and were found guilty of arson with the intent to defraud
an insurer and of conspiracy to commit arson. The charge
of arson, burning a building without the owner’s consent,
against defendant Wolf was nolle prossed during the trial.
A post-trial motion in arrest of judgment on the count of
conspiracy to commit arson for both defendants was al-
lowed. Judement on the finding of guilty on the charge of
arson with the intent to defraud an insurer was entered.

The testimony for the State at trial rested primarily on
two alleged eyewitnesses to the fire. The trial took place in
January of 1974, so the eyewitnesses were testifying to oe-
eurrences which took place more than four years previous-
ly. The first eyewitness to testify was Albert Kyles, He
identified Wolf as the man he saw carrying a ‘‘red’’ gaso-
line can into the building on the date of the fire. He also
testified he was very unsure about the time of day it was
when he saw the defendant. The witness had seen the de-
fendant in the building previously and claimed to have
paid the defendant rent for an aunt who lived at one time
in the building. The witness could not be sure whether
or not it was one year before the fire or several years

App. 4

before the fire, when he had seen the defendant. Neither
could he remember when it was that his aunt moved in or
when it was that his aunt moved out of the building.

The second eyewitness for the State was Evelyn May-
berry, also known as Elizabeth MeGowan, also known as
Mrs. Roosevelt McGowan. Ms. Mayberry, as we shall
refer to her, testified she saw defendant Wolf enter the
building with a ‘‘silver’’ gas can. Ms. Mayberry also testi-
fied the locks on the doors of the building had all been re-
moved and the door she saw defendant Wolf enter was
unlocked and open. The first fireman on the scene testified
the door to the building was secured with a padlock. Ms.
Mayberry had previously testified, under the name of Mrs.
Roosevelt MeGowan, in a civil suit arising out of the same
fire, in the United States District Court, Northern District
of Illinois, Kastern Division, Case Number 70 € 519. In
the Federal court, Ms. Mayberry testified she never, at any
time, saw the faces of the men who went into the building.

In addition to the questionable testimony of these two
witnesses, the State offered a great deal of documentary
evidence. Immediately upon the commencement of the
trial, the State offered into evidence eight transcripts of
depositions and testimony of the two defendants which had
been given in connection with the suit in Federal eourt.
These transcripts, as the State admitted in the trial court,
went ‘‘far beyond that of what we are concerned with.’’
The trial judge ruled he would only consider the evidence
of other or prior fires according to the guidelines estab-
lished in People v. Bishop (1934), 359 ill. 112. The judge
stated his understanding of this case as being ‘‘there must
be some kind of link-up between the offense in question and
the prior offense.’’ Besides the voluminous transcripts
offered by the State, they also offered into evidence certain
files from housing court concerning a number of buildings

App. 5

which had numerous building code violations. Some of
these buildings were owned by one of the defendants, some
by another, and most of them by neither of the defendants.
These exhibits were: 65 Ch 3915, 3434-36-42 West 15th St.
and 1448 South Trumbell, owned by Irving Berland; 66 Ch.
5026, 3351 West Dounglas Blvd., owned by Irving Koppel;
66 Ch 6858, 715-17 South Lawndale, owned by Julius Leher
and William Berke; 67 Ch 842, 1542 South Kedzie, owned
by Zelmond Greay; 68 Ch 50081, 4025 West Monroe, owned
by Fred Cooper; 68 Ch. 58352, 715-523 South Lawndale,
owned by Fred Cooper; 70 Ch 52442, 918 South Springfield,
owned by Albert Berland and Robert Watson; 70 Ch 50409,
2248 West Division, owned by Federal Savings and Loan In-
surance Corporation, A. KE. Berland Real Estate, and
Joseph Murro. Defense counsel objected to the introdue-
tion of all of these documents.

*1 We shall first consider the contentions of defendant
Wolf. The first issue presented for review is the defen-
dant was denied the effective assistance of counsel, due
both to the incompetence of trial counsel and the dual rep-
resentation of both Wolf and his co-defendant Berland.
We note at the beginning of trial, defendant Wolf was
charged with burning the building of his co-defendant, with-
out the knowledge of the co-defendant. This alone would
make if impossible for a single attorney to represent both
defendants... The Jeading United States Supreme Court
case in this area is Glasser v. United States (1942), 315 U.S.
60, 86 L. Kd. 680, 62 S. Ct. 457. In Glasser the court
stated:

“This is significant in relation to Glasser’s contention
that he was deprived of the assistance of counsel con-
trary to the Sixth Amendment. In all cases the con-
stitutional safeguards are to be jealously preserved
for the benefit of the accused, but especially is this true
where the seales of justice may be delicately poised

App. 6

between guilt and innocence. Then error, which under
some circumstances would not be ground for reversal,
eannot be brushed aside as immaterial since there is a
real chance that it might have provided the slight
impetus which swung the seales toward guilt.’’ 315 U.S.
60, 67, 86 L. Ed. 680, 698, 62 S. Ct. 457.

The Illinois Supreme Court in the case of People v.
Stoval (1968), 40 Ill, 2d 109, 113, stated:

‘“There is no showing that the attorney did not eon-
duct the defense of the accused with diligence and
resoluteness, but we believe that sound policy disfavors
the representation of an accused, especially when coun-
sel is appointed, by an attorney with possible conflict
of interests. It is unfair to the accused, for who ean
determine whether his representation was affected, at
least, subliminally, by the conflict. ‘loo, it places an
additional burden on counsel, however conscientious,
and exposes him unnecessarily to later charges that
his representation was not completely faithful. In a
case involving such a conflict there is no necessity for
the defendant to show actual prejudice. Glasser vy.
United States, 315 U.S. 60; Goodson vy. Peyton, (4th
cir.), 351 F.2d 905.”’

In the case at bar, the trial judge should have perceived at
the outset of the trial, there existed the possibility of de-
fenses for the defendants which of necessity would be in
conflict. As was said in the case of United States ex rel.
Miller v. Myers (HK. D. Pa. 1966), 253 F. Supp. 55:

‘‘His 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 ex-
isted here without his knowledgeable consent is little
better than allowing him no lawyer at all. See Gideon

App. 7

v. Waimright, 372 U.S. 385, 83S. Ct. 792, 9 L. Ed. 2d
799 (1963). This situation is too fraught with the
danger of prejudice which the cold record might not
indieate, that the mere existence of the confliet is suffi-
cient to constitute a violation of relator’s rights wheth-
er or not it in fact influences the attorney or the out-
come of the case.’? 255 F. Supp. 99, 07.

°2,3 The next issue of defendant Wolf we will consider
is whether or not the evidence was sufficient to prove Wolf
guilty beyond a reasonable doubt on count two of the in-
dictment, arson with the intent to defraud an insurer, the
only count upon which the verdiet now stands. ‘The main
evidence against the defendant consists of the testimony
of the two alleged eyewitnesses and the mass of documents
entered into evidence by the State. We will consider the
documentary evidence first. The State offered the files
from housing court ‘‘to demonstrate common scheme,
design, and plan on other buildings aside from the one in
question.’’ These files concerned a number of other build-
ings, owned by a number of different people. Hxamining
the actual documents which are in the file, we have tound
not only is there no link-up to the defendants, and therefore
no probative value in the instant case, but many of the
complaints were in fact for trivial matters such as garbage
collection, putting screens on windows, and other matters
which are completely unrelated to the issues of the trial.

We feel these exhibits were improperly allowed into evi-

dence and they have improperly influenced the trial judge

against the defendants. It was error for the trial judge
to consider these exhibits, as they have no relationship
to the instant case. As regards the testimony of the two
alleged eyewitnesses, they both claim they saw a virtually
bald man enter the building carrying a gasoline can. De.
fendant Wolf was bald from 1964 to 1967. The witnesses

App. 8

were shown a photograph of Wolf taken at this time. How-
ever, Wolf underwent a series of hair transplants in 1967
and 1968 and had more hair on the date in question than he
did at the time of the trial. Both Kyles and Ms. Mayberry
contradict each other as io the time they saw Wolf enter
the building. Ms. Mayberry testified in the Federal civil
suit she could not see the faces of the men who entered
the building. Here, four years later, she claims to be able
to identify defendant Wolf. Furthermore, Ms. Mayberry
appears in this case under three different names: KMvelyn
Maybérry, Elizabeth MeGowan, and Mrs. Roosevelt Me-
Gowan. The Evelyn Mayberry who testilied at trial is the
same person as the Elizabeth MeGowan who testified in
the Federal civil suit that it would be impossible for her to
identify the men she said she saw going into the building
on the date in question. ‘This is also the same person who
appears in the fire investigators’ reports as Mrs. Roosevelt
McGowan, wherein she also stated she could not identify
the men who entered the building. The State should have
known these aliases all referred to the same person, how-
ever, on the State’s list of possible witnesses tendered to
the defense before trial, the State listed both Evelyn May-
berry and Elizabeth McGowan as possible witnesses for the
prosecution. The State failed to reveal her alias identity
to defense counsel and it was only after trial defense coun-
sel realized she was the same woman who appeared in the
Federal civil suit with a completely different version of the
events on the day in question. The ecreditability of this
witness for the prosecution is highly suspect and the een-
cealment of her dual identity by the State is a questionable
prosecutorial practice. This was brought to the court’s
attention on a post-trial motion, to no avail.

In addition, Wolf presented three witnesses who testified
he was downtown with them discussing a business proposi-
tion at the time the State’s witnesses claim to have seen

App. 9

him enter the building. One of these witnesses for Wolf
was an attorney. In the case of People v. Gardner (1966),
35 Ill. 2d 564, our supreme court said:

“The defendant contends that his guilt was not
proved beyond a reasonable doubt and we agree. The
basic conflict in the evidence is between the strength
of the identification testimony and the strength of the
alibi. Nothing except the identification by the victim
and defendant’s proximity to the victim’s apartment
connected defendant with the crime. This court has
often held that: ‘In a criminal case it is incumbent
upon the prosecution to prove beyond a reasonable
doubt not only the commission of the crime charged
but also its perpetration by the accused. * * * And
while the identification and whereabouts of the defen-
dant at the time of the crime are questions for the
jury, yet, where from the entire record there is a rea-
sonable doubt as to the guilt of the accused, a judgment
of conviction will not be permitted to stand. (People v.
Ricili, 400 Ml. 809; People v. Gold, 361 Ill. 23.) Where
the conviction of a defendant rests upon identifica-
tion which is doubtful, vague and uncertain, and which
dots not produce an abiding conviction of guilt, it will
be reversed. (People v. Fiortta, 339 Ill. 78; People v.
Kidd, 410 Ill. 271.) Neither can we disregard the evi-
dence of alibi where the sole and only evidence con-
tradicting it rests upon the identity of the defendant as
the man who committed the erime. People v. Peck, 358
Ill. 642; People v. DeSuno, 354 Ill. 387.’ People v. Me-
Gee, 21 Ill. 2d 440, 444.°? (85 IIL. 2d 564, 571.)

In view of the firm language of our supreme court in these
eight cases, we feel the decision of the court in People vy.
Gardner (1966), 35 ll. 2d 564, is controlling. In the in-
stant case we think the State did not prove the guilt of

App. 10

the defendant beyond a reasonable doubt and accordingly
reverse the conviction of defendant Wolf for arson with the
intent to defraud an insurer. Ilaving reached this con-
clusion, we need not consider any of the other points raised
by the defendant.

Next we shall consider the issues raised by defendant
Berland. The opinion of this court withwvespect to the first
contention raised by the defendant, that he was denied the
effective assistance of counsel, has been thoroughly dis-
cussed above, with respect to defendant Wolf, and the same
applies to defendant Berland, and need not be repeated
here. This court feels there was a conflict of interest on
the part of trial counsel and it was incumbent on the trial
court to raise the issue with respect to both defendants.
It should have been clear to the trial court the confliet pre-
vented either defendant from receiving a fair trial.

Defendant Berland’s second contention is the State failed
to prove him guilty beyond a reasonable doubt. The State
argues ‘‘they were in a scheme together.’’ The State also
‘*There is absolutely

makes the flat statement in its brief:
no reason that can be inferred from any testimony as to why
Wolf would burn the building without Berland’s consent.”’
In fact, the State’s entire case against defendant Berland
consists of one inference based upon another inference,
drawn from a third inference. The first inference is the
fact the two men had been friends for some 30 to 35 years.
This court feels the need to point out there is nothing in-
herently criminal in such a situation. ‘The next inference is
the fact the two men had invested in various real estate
and non-real-estate ventures over a number of years. There
is, however, no contention by the State Wolf had any in-
terest in the building in question. The next inference is

Wolf was a customer of Berland, buying paint and other

supplies from him and, in turn, Berland used Wolf’s em-

.

App. 11

ployees to make repairs in other buildings. That has no
bearing on this case. he State makes much of the faet
Berland used Wolf as a nominee when he bought the build-
ing in order to receive a broker’s commission and reduce
the actual price he would have to pay to acquire the build-
ing. Again, the inference is there is something sinister
about the transaction. There is nothing wrong or criminal
about such a situation, as it is a very common one in the
real estate field. The State produced no direct evidence
against Berland except he owned the building, which he
readily admitted. There is no evidence of Berland’s either
burning the building or of his aiding, abetting, or somehow
furthering the burning of his building, and, as the State
admits, there is no reason why Wolf would burn the build-
ing on his own. The State’s entire case against Berland is
based on these inferenees of normal, legal activity. It is
well settled in Illinois you may obtain a conviction in Tli-
nois based solely on circumstantial evidence; however, as
the supreme court said in the case of People v. Wilson
(1948), 400 Ill. 461, 478:

‘*TIn cases where the proof is entirely cireumstantial,
if there is any reasonable hypothesis arising from the
evidence, consistent with the innocence of the defen-
dant, it must be adopted. It is essential to a conviction
upon circumstantial evidence that the facts proved be
not only consistent with the defendant’s guilt, but that
they be inconsistent, upon any reasonable hypothesis,
with his innocence. People v. Holtz, 294 Ill. 143.”

In a case similar to the instant case, the United States
Court of Appeals discussed the function of a reviewing
court in dealing with cases where the proof is entirely eir-
cumstantial in nature. In ihe case of United States v. Lit-
berg (7th Cir. 1949), 175 F.2d 20, the court said:

App. 12

‘‘The principal contention before this court, urged
with vigor and apparent sincerity, is that the evidence
is not sufficient to support the judgment. Such a con-
tention, where the proof in support of an essential
element of the crime is doubtful and particularly where
it depends upon inferences drawn from circumstances
in proof, presents a difficult and perplexing problem
for a court of review. On the one hand, we must keep
in mind that oft repeated rule that the weight and
credibility to be attached to testimony of the witnesses
is a matter for the trier of the faets and that we are
required to take that view of the evidence most favor-
able to the government. On the other hand, while the
trier of the facts is entitled to draw all reasonable in-
ferences from the circumstances in proof, a court of
review is charged with the responsibility of deter-
mining the reasonableness of such inferences, In other
words, an inference may not properly be relied upon in
support of an essential allegation if an opposite infer-
ence may be drawn with equal consistency from the cir-
cumstances in proof. In United States v. Tatcher, 3
Cir., 181 F.2d 1002, 1003, the court reversing a convie-
tion based on inferences states: ‘To justify conviction
of crime where the evidence relied upon is eireum-
stantial in nature the evidence must be such as to ex-
clude every reasonable hypothesis but that of guilt.
United States v. Russo, 3 Cir., 1941, 123 F.2d 420. As we
have seen, the evidence relied upon to sustain the
defendant’s conviction is as consistent with his in-
nocence as with his guilt.’

In Umted States v. Russo, 3 Cir., 123 F.2d 420, 423,
where knowledge was an essential element of the of-
fense charged, it was held a judgment could not be
sustained where the inference of lack of knowledge was

App. 13

as readily deducible as that of knowledge. See also
Isbell v. United States, 8 Cir., 227 F. 788, 792; Pierce
v. United States, 6 Cir. 115 F.2d 399, 400; Hammond v.
United States, 75 U.S. App. D.C. 395, 127 F.2d 752,
753.’ 175 F.2d 20, 21-22.

*4 In the instant case the trial court specifically found,
by granting the motion in arrest of judgment on the con-
spiracy count, Berland had not conspired with anyone
to burn the building. We have examined the record in its
totality, some 700 pages of transcript from the trial alone,
and can find no evidence to connect the defendant with
the burning of this building. The State did not meet its
burden of proving the defendant guilty beyond a reasonable
doubt. Following the cases cited by our supreme court,
as well as the Federal cases cited, we must conclude from
the evidence introduced in the trial court there is a reason-
able hypothesis from the inferences produced by the State
and the evidence is consistent with the defendant’s inno-
cence. It is clear the State did not prove defendant Ber-
land guilty beyond a reasonable doubt of arson with the in-
tent to defraud an insurer. Accordingly, the judgment of
the cireuit court is reversed as to Berland.

Both judgments are reversed.

JOHNSON and LINN, JJ., econeur.

App. 14

APPENDIX B

Docket Nos. 50012, 50534 cons.—Agenda 7—May 1978.

THE PEOPLE OF THE STATE OF ILLINOIS,
Appellant, v. ALBERT BERLAND ef al., Appellees.

MR. JUSTICE KLUCZYNSKI delivered the opinion of
the court:

Defendants, Louis Wolf and Albert Berland, were con-
victed of arson with intent to defraud an insurer (Ill. Rev.
Stat. 1969, ch. 38, par. 20-1(b)) after a joint bench trial in
the cireuit court of Cook County. Both were sentenced to
terms of 11% to 414 years in the Illinois State Penitentiary
and fined $10,000. The appellate court reversed the conviec-
tions on two grounds: that the single, retained counsel
could not effectively represent the conflicting interests of
the two defendants and that there was insufficient evidence
of guilt to sustain the convictions. (52 Ill. App. 3d 96.) We
granted the State’s petition for leave to appeal under our
Rule 315 (65 Ill. 2d R. 315).

On November 19, 1969, a fire occurred in a 12-unit, three-
story apartment building at 715 South Lawndale in Chi-
cago, Illinois, owned by Berland through a land trust at
the Lawndale National Bank. Firemen arrived at the scene
at 11:15 or 11:30 a.m., and the fire was extinguished by
about 12:30 p.m. An arson investigator from the Chicago
Fire Department determined that the fire had been set. It
had started when an accelerant was poured onto the floor
in the bathroom or in the area between the bathroom and
living room in a third-floor apartment and ignited.

Berland, through the Lawndale National Bank as trustee,
initiated suit against the insurer of the building in the
United States district court to recover $35,000 under the

App. 15

fire insurance policy. The insurance company interposed
as defenses that Berland had misrepresented his fire-loss
history in the insurance application and that the fire was
the result of arson. The jury returned a general verdict in
favor of the insurance company. ‘The court of appeals re-
versed on the ground that the misrepresentations in the
application were not a defense to the poliey since the appli-
cation was not incorporated in or attached to it. A new
trial was required because the general verdict precluded
determining whether the jury had accepted the misrepre-
sentation or arson defense, and the court refused to accept
the arson defense as a matter of law. Lawndale National
Bank v. American Casualty Co. (7th Cir. 1973), 489 F.2d
1384.

An Illinois grand jury returned indictments against Wolf
and Berland on May 11, 1973, about 314 years after the fire,
while the civil case was pending on appeal in Federal court.
Count I charged Wolf alone with knowingly damaging the
real property of another without his consent under section
20-1(a) of the Criminal Code of 1961 (IIL. Rev. Stat. 1969,
ch. 38, par. 20-1(a)). Count II charged Wolf and Berland
together with knowingly damaging a building by means of
fire with intent to defraud an insurer (Ill. Rev. Stat. 1969,
ch. 38, par. 20-1(b)). Count Ill charged both defendants
with conspiracy to commit arson (Ill. Rev. Stat. 1969, ch.
38, par. 8-2).

A single, retained attorney entered his appearance on
behalf of both defendants. Each defendant waived jury
trial on January 14, 1974. Both defendants pleaded not
guilty. Berland did not testify. Wolf denied he was present
at the time of the fire. During the presentation of the
State’s case, attorney Jack G. Stein entered his appearance
us additional co-counsel for defendant Wolf. Thereafter, at
the conclusion of the People’s case, count I, charging Wolf

App. 16

with the burning of the building without the owner’s
consent, was nol-prossed. Additional and separate counsel
for each defendant appeared to present post-trial motions.
A post-trial motion in arrest of judgment on the con-
spiracy count for both defendants was allowed on the
grounds that the statute of limitations on that count had
run (Ill. Rev. Stat. 1969, ch. 38, par. 3—5(b)). Judgment
on the finding of guilty on the charge of arson with intent
to defraud an insurer was entered.

The State introduced transcripts of depositions and tes-
timony of Wolf and Berland from the civil case in Fed-
eral court. They were admitted pursuant to a_ stipu-
lation but subject to a defense objection to references to
prior fires. The trial judge correctly ruled he would
consider the prior fires only if there was no remoteness
and if there was a linkup between the offense in question
and the prior fires, in accord with People v. Bishop (1934),
359 Ill. 112, 119-20.

The trial court also admitted into evidence a series of |

housing court files concerning properties found to be in
violation of the Chicago housing code (Municipal Code of
Chicago, ch. 78). They were admitted for the limited
purpose of showing prior business relationships between
Wolf and Berland in the subject and other properties, not
to show prior fires. The files themselves or the testimony
of Wolf and Berland in the transeripts from the Federal
proceedings indicated that the properties belonged either
to one of ihe defendants, his nominees or aliases, or those
whose addresses were businesses owned by Wolf.

In 1966 defendant Wolf had negotiated the purchase of
the building at 715 South Lawndale for Berland. Ber-
land had introduced Wolf to the seller as the prospec-
tive purchaser and identified himself as the broker. Wolf

App. 17

purchased the property in his name and transferred it to
Berland as his nominee, Title was placed in a land trust
established by Berland. At one point Wolf’s nephew was
given an interest in the property as collateral for a loan by
Wolf to Berland. The interest was returned to Berland
when the loan was paid. ‘‘Fred Cooper,’’ an alias used by
Berland, was listed as the beneficiary of the land trust at
one time. The addresses given for ‘‘Fred Cooper’’ were two
of Wolf’s business addresses.

Wolf helped manage the property by selecting tenants
and collecting rent. He was frequently present in the
vicinity of the building. Wolf examined its physical con-
dition, ordered coal for it, and referred contractors to
Berland.

In June 1969 Berland applied for fire insurance on the
property. The application was purportedly notarized at
Wolf’s office by Maurice Blumenthal on June 20, 1969.
Blumenthal had died in a ear accident in September of
1968, and the date noted for the expiration of his notary’s
commission was in error. The application contained a false,
negative answer to a question requesting ‘‘the applicant’s 5
year loss record for fire.’’ Insurance coverage in the
amount of $100,000 was issued on August 13, 1969, by
the American Casualty Company. Berland introduced tes-
timony that under the policy he was required to insure
the building for $100,000; that was 80% of the ‘‘actual
cash value’’ of the structure, which is measured by re-
placement cost less depreciation of up to 50% of that
cost rather than by market value or purchase price. Ber-
land paid $18,000 for the building and spent approxi-
mately $29,000 on repairs.

Prior to the fire the building was two-thirds vacant.
Rent revenues had fallen from $650 per month to $250

App. 18

per month. The building had been cited for 35 violations
of the Municipal Code of Chicago. The building was losing
money, and Berland had tried to sell it on contract on
three occasions. The purchasers reneged.

Albert Kyles was across the street from 715 South Lawn-
dale on the morning of the fire. He observed two white
men drive up to the building in a dark station wagon
at around 9 or 10 a.m. and park in front of the building.
The building was in a largely black neighborhood. One
man carried a ladder to the building; the other carried a
red gas can. Judging from the way the man walked, the can
was full when he entered the building and empty when he
left. The men remained in the building for three to four
minutes. Shortly after the men left, Kyles saw smoke
coming out of the building.

Kyles identified defendant Wolf as the man earrying
the gas can. Kyles had seen Wolf on three or four prior
occasions at a paint store and another time when he paid
Wolf the $130 rent on an apartment his aunt had leased at
715 South Lawndale.

Evelyn Mayberry saw a dark station wagon drive up to
715 South Lawndale on November 19, 1969. Two white
men sat in the car for a while apparently looking to see if
anyone was coming. She saw one man take a ladder out of
the car. A second man took a silver-colored gasoline can
from the back of the station wagon. Ms. Mayberry iden-
tified the second man as defendant Wolf, whom she had
seen on several previous occasions. He had walked around
to the back of the building at 715 South Lawndale on
the Sunday prior to the fire. On Monday, he removed
the locks from the front door. On Tuesday he drove past
the building several times. On Wednesday, Wolf entered
the building with the gas can between 9:30 and 10 a.m.

App. 19

Ms. Mayberry went grocery shopping, and when she re-
turned she learned there had been a fire at 715 South Lawn-
dale.

Wolf testified on his own behalf. He stated he owned a
station wagon in 1969. Three alibi witnesses testified on
behalf of Wolf that they had had a meeting with him on
the morning of the fire. Attorney Samuel Siegel testified
Wolf was with him from 9:15 a.m. to 1:30 p.m. on No-
vember 19, 1969, and that he and Wolf had lunch to-
gether. He had no independent recollection of the meet-
ing until he looked at his appointment calendar. The
calendar, however, contained no indication of a meeting
with Wolf on that day. It indicated only that Siegel had a
12:30 p.m. appointment with a client named Grosso, It
did note a meeting with Wolf both two days before and
two days after November 19. Ted Allen testified he saw
Wolf in Siegel’s office on November 19, 1969, and had
lunch with Wolf. He had not remembered this meeting
until he met with Siegel, Wolf, and the third alibi witness
on the morning of the day he testified. The third witness,
Anton Caithaimer, testified he saw Wolf at Siegel’s law
office between 9 a.m. and 1 p.m. on November 19, 1969.
He had a cup of coffee with Wolf and Allen at about 12
p.m. Impeachment evidence consisting of time and pay
records indicated Caithaimer was teaching school at that
time on that day. He had been absent two days earlier.

The appellate court held that since Wolf was charged
in count I with burning the building without Berland’s
consent, it was impossible for a single attorney to repre-
sent both defendants. It noted that the trial court should
have perceived that there existed the possibility of con-
flicting defenses, thus it was incumbent upon the trial
court to raise the issue sua sponte with respect to both
defendants.

App. 20

A defendant must show an actual conflict of interest
manifested at trial in order to prevail in a constitutional
claim of ineffective assistance of counsel due to joint

representation of co-defendants by a single attorney. (Peo-

ple v. Durley (1972), 53 Till. 2d 156, 159-61; People v.
McCasle (1966), 35 Tll. 2d 552, 556; People v. Somerville
(1969), 42 Ill. 2d 1, 9.) Other jurisdictions concur in this
position (see United States vy. Mandell (7th Cir. 1975), 525
F.2d 671, 677, cert. denied (1976), 423 U.S. 1049, 46 L.
Ed. 2d 637, 96 S. Ct. 774; United States v. Lovano (2d
Cir. 1970), 420 F.2d 769, 773; United States v. Boudreaux
(Sth Cir, 1974), 502 F.2d 557, 558; United States v. La-
Riche (6th Cir. 1977), 549 F.2d 1088, 1095, cert. denied
(1977), 430 U.S. 987, 52 L. Ed. 2d 383, 97 S.Ct. 1687;
United States vy. Christopher (9th Cir. 1973), 488 F.2d
849, 851; State v. Jeffrey (1973), 163 Mont. 92, 96, 515
P.2d 364, 367; cf. United States v. Smith (10th Cir. 1972),
464 F.2d 194, 197 (holding there must be prejudice)),
although there is no consensus as to how strong a show-
ing of conflict is required to establish a denial of the right
to counsel. See //olloway v. Arkansas (1978), 435 U.S.
475, 484, 55 L. Ed. 24 426, 434, 98 S. Ct. 1173, 1178.

The record is devoid of any evidence of an actual
conflict of interest. Berland argues that count I was an
indicium of a fundamental conflict which could not be
cured by the fact that the count was nol-prossed. He
argues that because a single attorney represented both
defendants he could not prepare and try the case to show
that Wolf was motivated to burn the building without
Berland’s assent. Wolf concurs that joint representation
precluded the implementation of each defendant’s interest
in placing exclusive blame on the other,

These arguments are no different from those which

can be raised in any instance of dual representation, yet .

App. 21

joint representation of co-defendants is not per se uncon-

stitutional (//olloway v. Arkansas (1978), 435 U.S. 475,
482, 55 L. Ed. 2d 426, 433, 98 S. Ct. 1173, 1178; see
People v. Durley (1972), 53 Ill. 2d 156, 160; United States
v. Mandell (7th Cir, 1975), 525 F.2d 671, 677). The de-
fendants merely speculate and attempt to create a con-
flict of interest through conjecture as to what might have
been shown. They point to no actual conflict, and the
record reveals none. This court will not disturb a judg-
ment on the basis of hypothetical conflicts. People v. Me-
Casle (1966), 35 Ill. 2d 552, 556; see also Kruchten v. Eyman
(9th Cir. 1969), 406 F.2d 304, 311; State v. Jeffrey (1973),
163 Mont. 92, 97, 515 P.2d 364, 367.

Both defendants denied their guilt. Berland entered a
simple denial: Wolf presented an alibi. There was no
inconsistency in these defenses. Defense counsel effec-
tively cross-examined the eyewitnesses who testified di
rectly against Wolf by questioning the accuracy of their
testimony. Count I was nol-prossed before the defense
presented its evidence, thus removing any abstract possi-
bility of conflict. Further, separate co-counsel appeared
for Wolf before the close of the State’s case. The record
revealed no basis for either defendant to assert that the
other alone burned down the building. The two men were
longtime friends. Even after the fire they chose to be
represented by the same counsel. The facts are analogous
to those in People v. McCusle (1966), 35 Ill. 2d 552, where
this court found it proper for a single attorney to repre-
sent both defendants. MeCasle asserted on appeal that his
co-defendant might have committed the robbery alone or
with someone else, but the record contained no evidence
to support such a theory. There was no inconsistency in
their defenses. Both defendants denied knowing one an-
other and presented alibi defenses.

App. 22

People vy. Ware (1968), 39 Ill. 2d 66, illustrates an

instance of conflict, in contrast to facts here. <A single -

attorney was appointed to represent two defendants. One
pleaded guilty and testified against the other. There was a
complete antagonism between the defendants mandating a
reversal of the conviction. In United States v. Gaines (7th
Cir. 1976), 529 F.2d 1038, a conflict of interest developed
when defense counsel failed to call Gaines as a witness.

The failure to call Gaines prevented him from, retracting:
his withdrawn confession which had been introduced with- °

out the names of the co-deferidants whom Gaines had
implicated. It also served to protect his co-defendants, who
counsel had represented through part of the proceedings,
from the consequences of a cross-examination of Gaines
concerning his confession which had implicated them.

The recent decision by the United States Supreme
Court in Holloway v. Arkansas (1978), 485 U.S. 475, 55
L. Ed. 2d 426, 98S. Ct. 1173, does not preclude joint
representation. The court held that where, unlike here,
appointed defense counsel raises the risk of a conflict of
interest, the failure of the trial court to appoint separate
counsel or take adequate steps to ascertain whether the
risk was too remote to warrant separate counsel deprives
the defendants of their right to the assistance of counsel.
This was based on the rationale in Glasser v. United States
(1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457. There
the court held that for a trial judge to insist upon joint
representation in the face of objection undermines the
general duty of the trial court to see that the trial is
conducted with solicitude for the essential rights of the
accused. In Glasser the trial court appointed an attorney
retained by Glasser to represent his co-defendant over
Glasser’s objection. Actual instances of conflict appeared
during the course of the trial.

App. 23

By contrast, counsel here was not foisted upon either
defendant. Nor does the record reveal any actual conflict.
Each defendant selected and retained the trial counsel to
represent him. No objection was made to joint representa-
tion until after conviction even though additional counsel
represented Wolf prior to motions at the close of the
State’s ease. See People v. Somerville (1969), 42 Tll. 2d 1,
9; State v. Jeffrey (1978), 163 Mont. 92, 97, 515 P.2d 364,
367.

People v, Stoval (1968), 40 Ill. 2d 109, People v. Kester
(1977), 66 Ill. 2d 162, and People vy. Coslet (1977), 67
Ill, 2d 127, relied upon by the defendants are not con-
trolling. None involved joint representation of two de-
fendants by a single attorney, and there, unlike here,
actual conflicts due to competing commitments by the de-
fense attorney to other current or former clients existed.
In People v. Stoval counsel and his law firm represented
the owner of the jewelry store the defendant was charged
with burglarizing. In People vy. Kester counsel, prior to
becoming defense attorney, had worked on the case as a
prosecutor. In People v. Coslet counsel represented both
the defendant who had been charged with murdering her
husband and the administrat +r of the husband’s estate. A
conflict arose since the estate stood to benefit from a
conviction. Furthermore, all three cases involved ap-
pointed counsel, rather than retained counsel as here, de-
manding even closer scrutiny for conflicting interests (Peo-
ple v. Stoval (1968), 40 Ill. 2d 109, 113; People v. Coslet
(1977), 67 Ill. 2d 127, 138; People v. Kester (1977), 66
Ill. 2d 162, 166).

This court adopted a per se conflict of interest rule in
People v. Stoval (1968), 40 Ill. 2d 109, 113, which pro-
vides that if an attorney’s commitments to others un-

App. 24

dermine his loyalty to the defendant’s interest, it is un-
necessary to allege and prove prejudice to sustain a find-
ing of a violation of the right to counsel. In formulating
that rule this court relied upon Glasser yv. United States
(1942), 315 U.S. 60, 75-76, 86 L. Ed. 680, 702, 62 S. Ct.
457, 467, where it was said:

‘‘To determine the precise degree of prejudice sus-
tained * * * is at once difficult and unnecessary. The
right to have the assistance of counsel is too funda-
mental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from
its denial.’’

Glasser of course concerned an instance of enforced dual
representation of defendants with actual conflicting in-
terests. The record here, however, reveals no actual con-
flict; thus it is unnecessary to apply the per se rule. See
also People v. Ware (1968), 39 Ill.2d 66, 68.

Wolf argues that upon the appearance of a possible
conflict it is necessary for the trial court to inquire into
the nature of the potential conflicts. Some jurisdictions
require the trial court to admonish all jointly represented
co-defendants about the possible conflicts inherent in dual
representation and to inquire whether each defendant has
voluntarily and with full knowledge of the consequences
decided to accept such representation. If such inquiry is
not made, the prosecution must show beyond a reasonable
doubt that a prejudicial conflict of interest did not exist to
avoid reversal of the convictions for lack of assistance of
counsel. (See Ford v. United States (D.C, Cir. 1967), 379
F.2d 123, 125, relying on Lollar v. United States (D.C. Cir.
1967), 376 F.2d 243, 247; State v. Olsen (1977), ............
Minn. ........ Bee , 208 N.W.2d 898, 907-08; cf. United
States v. Lawriw (8th Cir. 1977), 568 F.2d 98, 104-05

@

App. 25

(placing duty on a trial court to make inquiry but holding
that a presumption of prejudice does not arise if the trial
court fails to make inquiry and refusing to shift the burden
to the prosecution); United States vy. Foster (1st Cir.
1972), 469 F.2d 1, 5 (placing duty of inquiry on the court
but only shifting burden of persuasion to the prosecution
to show that the existence of prejudice was improbable
where inquiry was not made).) At the opposite end of the
spectrum, the Seventh Cireuit Court of Appeals holds only
that the trial court should be watchful for indicia of
conflict during trial. Only when an actual conflict appears
is it necessary for the trial court to bring the fact of its
existence to the attention of the defendant. (United States
v. Mandell (7th Cir, 1975), 525 F.2d 671, 677; United
States v. Gaines (7th Cir. 1976), 529 F.2d 1038, 1043-44.)
Other jurisdictions take intermediary positions short of
requiring judicial inquiry in all cases of joint representa-
tion. See United States v. Lawriw (8th Cir. 1977), 568
F.2d 98, 102-03, and cases cited therein; State v. Jeffrey
(1978), 168 Mont. 92, 98, 515 P.2d 364, 368 (suggesting
it would be wise to make such inquiry).

This court has refused an invitation to require trial
judges to ascertain that co-defendants’ decisions to pro-
ceed with one attorney are informed (People v. Somerville
(1969), 42 Ill. 2d 1, 10). The crucial determination is
whether there is a conflict, since absent such conflict there
is no threat to a defendant’s right to the assistance of
separate counsel. Neither Glasser v. United States (1942),
315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457, nor Holloway v.
Arkansas (1978), 485 U.S. 475, 55 L. Ed. 2d 426, 98 S.
Ct. 1173, indicate that a pretrial inquiry and waiver of
separate counsel is mandated in all cases of joint repre-
sentation. Because joint representation is not per se uncon-
stitutional there is no need to require judicial inquiry un-

App. 26

til the conflict appears. The language in Glasser and Hollo-
way that it is the duty of the trial judge to see that the trial
is conducted with solicitude for the essential rights of the
accused is directed specifically to trial court insistence
upon joint representation where counsel or the defendant
has requested separate representation. Since there was
no conflict here, judicial inquiry was not required.

The appellate court concluded there was insufficient evi-
dence to support the convictions. On the basis of the
record before us, we do not agree.

Wolf challenges the weight and credibility of the testi-
mony of the two eyewitnesses. However, in a bench trial
it is the province of the trial court to determine the
credibility and weight of the testimony, to resolve the
inconsistencies and conflicts therein, and to render its de-
cision accordingly. This court will not substitute its judg-
ment on these matters unless the proof is so unsatis-
factory that a reaonable doubt of guilt appears. The trial
court, unlike the reviewing court, was in a position to ob-
serve the witnesses. People vy. Pagan (1972), 52 Til. 2d
525, 534; People v. Lofton (1977), 69 Ill. 2d 67, 72-73.

The testimony of the two eyewitnesses was largely con-
sistent both internally and when compared with the tes-
timony of the other eyewitness. Both eyewitnesses agreed,
they saw two men enter the building between 9 and 10
a.m. One man, whom they identified as Wolf, carried a
gas can into the building. Both had seen Wolf on several
prior occasions lending further credence to their identifica-
tion of him. Both identified Wolf in court. There were
some inconsistencies in the testimony. Kyles said the gas
can was red. Ms. Mayberry said it was silver colored. There
was some confusion concerning the amount of hair Wolf
had on the day of the fire as well as a discrepancy in the

App. 27

testimony about the relative heights of the two men who
entered the building. However, it is established that ‘‘[a]
conviction will not be set aside merely because the evi-
dence is contradictory.’’ (People v. Guido (1962), 25 Tll.
2d 204, 208; see also People v. Akis (1976), 63 Ill. 2d 296,
298-99; People vy. Pagan (1972), 52 Tll.2d 525, 533-34.)
The trial judge, in handing down his decision, stated that
he was impressed by the eredibility of the eyewitnesses
and noted that they had no reason whatsoever to lie. We
perceive no basis to disturb the findings of the trial court.

The strength of the eyewitness testimony was not di-
minished by Wolf’s alibi defense witnesses. The alibi
witnesses’ testimony was thoroughly impeached. Ted Allen
had no recollection of the date of the meeting until he
spoke with Wolf, Caithaimer, and Siegel on the day he
testified. Siegel had no independent recollection of the
meeting until he looked at his appointment calendar, but
the calendar did not note a meeting with Wolf on that day.
Caithaimer was ieaching school when he testified he was
meeting with Wolf. Siegel testified contrary to Caithaimer
and Allen concerning who had lunch with Wolf. The trial
judge was not obligated to believe the testimony of the
alibi witnesses over the positive identification of the ac-
eused, (People v. Jackson (1973), 54 Ill. 2d 143, 149;
People v. Catlett (1971), 48 Ill. 2d 56, 64.) Whether the
alibi evidence created a reasonable doubt of guilt was a
question primarily for the trial court (People v. Garkus
(1934), 358 Ill. 106, 111-12), and here the trial judge in-
dicated the alibi evidence did not convince him that the
alleged meeting took place.

The appellate court placed undue emphasis on People
v. Gardner (1966), 35 Ill. 2d 564, 571-73. It is clearly
factually distinguishable. There, as here, guilt hinged upon
the conflict between the strength of the identification tes-

App. 28

timony and the strength of the alibi defense. In such
cases, the alibi evidence cannot be ignored. However, this
court noted that the testimony of a single witness that is
positive and credible is sufficient to convict even if it is
contradicted by the aceused. In that case the identification
of the defendant by the complaining witness was weak-
ened by several factors, inetuding inconsistent descriptions
of the defendant and the lack of a lineup when the de-
fendant was first identified, while the defendant’s alibi
was positive and unimpeached. Also, the alibi was not a
recent concoction. By contrast the identification here was
strong, and the alibi was impeached. Further, the alibi
defense was of recent origin. The defense did not explore
it until after trial began and several years after the in-
cident.

Wolf arms that the testimony of Mayberry and Kyles
is inhere incredible and, therefore, is insufficient to
suppor « semviction. He cites People v. Dawson (1961),
22 Ill. 4 . 9, 265-66. In that case the witnesses testified
that a police officer went into a hotel taxi office where he
was well known and demanded money from a driver at
gunpoint in the presence of many witnesses after identify-
ing himself as a police officer. He then remained in the
hotel and had a drink at its bar. The witnesses here did not
recount a blatantly preposterous story. They testified that
two men entered a building. One man carried a gas can,
and the other carried a ladder. They were men who had
been seen working around the building on prior occasions.
Their conduct, therefore, was not extraordinary like the
alleged conduct of the defendant in Dawson.

Wolf also challenges the identification testimony by
Mayberry and Kyles on the grounds that it was suggested
by a mug shot of Wolf shown to them before trial. He did
not challenge the photographic procedure prior to trial.

App. 29

The witnesses were shown this picture in connection with
the civil trial in the United States district court by an
attorney for the insurance company before Wolf was in-
dicted. We refrain from addressing the merits of this
contention since it has been waived. People v. Pierce
(1972), 52 Ill. 2d 7, 10.

Berland argues that the evidence against him was cir-
cumstantial, and therefore insufficient to support the con-
viction. It consisted of depositions and transcripts of
proceedings from the civil case in the United States district
court, housing files, the insurance application and policy,
and evidence that the man who apparently notarized the
application had died before the date of the application.
Yet, even if the evidence was circumstantial, it is clear that
it can support a conviction as long as it produces a
reasonable and moral certainty that the defendant com-
mitted the crime. (People v. Fletcher (1978), 72 Tll.2d 66,
71; People v. Williams (1977), 66 Tl. 2d 478, 484-85.)
Berland and Wolf were friends and business associates for
30 to 35 years, Wolf was involved in the acquisition and
management of the property for Berland. The addresses of
one of Berland’s aliases, listed as a beneficiary of the land
trust, were business addresses of Wolf. Wolf’s nephew was
at one point named as a beneficiary as security for a loan
from Wolf to Berland. The building was losing money
before the fire, and Berland was trying to sell it. He was
compelled to take the property back because of the fail-
ures of the purchasers to meet the contract obligations.
The poor condition in which Berland maintained the build-
ing had given rise to an action in the housing court for
necessary repairs. There were 35 violations of the Mu-
nicipal Code of Chicago, including the presence of vermin
and structural violations.

App. 30

Berland’s application for fire insurance contained a false,
notarized statement of his personal history of fire losses.
Berland had brought the application to Wolf to have it
notarized, The notary’s name and seal were those of a
man who had died 9 months before the application was
notarized. The evidence indicates an intent to defraud an
insurance company. Berland, of course, ean be accountable
for the offense even though he did not physically set fire
to the building (IIL Rev. Stat. 1969, ch. 38, par. 5-2). We
find there was sufficient evidence to support his convic-
tion.

The appellate court determined that the trial court
erred in admitting the housing court files on relevancy
grounds because the properties were not owned by the
defendants. However, all were owned either by one of the
defendants or their aliases. Further, the trial court did not
consider similar unexplained fires on those properties. The
evidence was admitted solely to show the defendants’ busi-
ness relationships in other similar types of property.

Berland contends that the trial court gave undue and
prejudicial consideration to the fact that the property was
insured for almost three times its initial cost and the cost
of subsequent repairs. He argues also that he was preju-
diced by his counsel’s failure to introduce evidence of the
replacement cost of the building after presenting evidence
that insurance is calculated on the basis of replacement
cost rather than acquisition cost. However, as the trial
court noted, the gist of the fraud was the burning of the
building to collect insurance proceeds regardless of the
replacement cost and whether the building was overinsured
or underinsured.

Berland and Wolf each argue it was error to admit
prior statements of their co-defendant. That evidence was
admitted pursuant to a stipulation subject only to an

App. 31

objection to references to prior fires, and there is no
indication in the record that the trial judge, sitting as the
trier of fact, improperly considered the prior statements of
one co-defendant as substantive evidence against the other.
Under these circumstances there is no reason to deviate
from the sound presumption that the court in a bench trial
relies only on proper evidence in reaching a determination
on the merits (People v. Gilbert (1977), 68 Ill. 2d 252,
258-59; People v. Pelegri (1968), 39 Tll. 2d 568, 574-75;
People v. Delno (1966), 35 Ill, 2d 159, 162).

Becatise of its disposition of the cause, the appellate
court did not reach all the issues presented to it, but as
noted in Nelson v. Union Wire Rope Corp. (1964), 31 Il.
2d 69, 112-15, ‘tit has frequently been indicated that
where this court acquires jurisdiction for any reason, it has
jurisdiction to pass upon all questions, except those
requiring a weighing of the evidence, proper to be passed
upon and disposed of in the case. (Goodrich v. Sprague,
376 Ill. 80; Bowman vy. Illinois Central Railroad Co., 11 Tl.
2d 186.) Aside from considerations going to the avoidance
of multiplicity of appeals, there are in our opinion unique
circumstances here which, as a matter of discretion and
justice, impel us to use our powers on review to the utmost
and to finally dispose of the case.’’ These proceedings
arose out of a fire which occurred in 1969 for which the
defendants were indicted in 1973. The parties have briefed
the remaining issues of whether retained counsel was
competent and whether the State violated due process by
listing the witness Mayberry twice in response to dis-
covery, once under her own name and once under the
name of her common law husband. Moreover, the record
enables us to fully determine these matters. (County of
Cook v. Lloyd A. Fry Roofing Co, (1974), 59 Til. 2d 131,
138-39.) We shall therefore address these questions.

App. 32

Both Berland and Wolf challenge the eompeteney of
their retained trial counsel, After an examination of the
record in the instant case in light of the applicable test, we
cannot say that counsel was incompetent. Tle eonducted
diseovery, sought to suppress evidence, and vigorously
cross-examined the State’s witnesses. Wolf also received
the services of additional counsel who entered his appear-
anee during the latter part of the presentation of the
State’s case. Defendants were entitled to competent, not
perfect, counsel. People v. Murphy (1978), 72 Tl 2d 421,
438.

Wolf argues, on the basis of Brady v. Maryland (1963),
372 US. 88, 10 LL. Nd. 2d 215, 88 S.Ct. 1194, that he was
denied a fair trial due to the prosecution’s failure to noti-
fy defense counsel that the witnesses Ms. Mayberry and Ms,
MeQGowen are the same individual. The two names ap-
peared on a list presented to the defense in response to a
discovery request for a list of witnesses. The addresses
under the two names were the same. The witness had
used the name MeGowen, her common law husband’s name,
when she testified in the United States distriet court but
used her own name, Mayberry, when she testified in the
criminal action now pending.

The United States Supreme Court held in Brady that
the proseeution’s suppression of a confession by the de-
fendant’s companion deprived the accused of due process
since the evidence was material to his guilt. By eon-
trast, in the instant case the prosecution had not sup-
pressed any evidence. Both names were furnished to
the defendants, Further, as this court has noted, in de-
termining whether it was error to allow witnesses to
testify even though they had not been listed in response to
discovery, the function of the list of witnesses is to prevent

App. 34

surprise and afford an opportunity to combat false tes-
timony. (People v. Steel (1972), 52 I 2d 442, 450.) In
the present case, the defendant was afforded an oppor-
tunrly to examine the witness under both her names. The
double listing did not deprive Wolf of any evidence ma-
terial to his guilt; thus he was not denied a fair trial. See
United States v. Aqurs (1976), 427 U.S. 97, 49 L. Kd. 2d
$42, 96S. Ct, 2392.

Defendants also contended in the appellate court. that
the State had failed to prove the corporate existence of the
insurance company alleged to have been defrauded, Kven if
the State failed to offer testimony to establish the insur-
ance company’s corporate existence, courts may take ju-
dicial notice of its existence since it is a matter of publie
record, (See Department of Public Welfare vy. Bohleber
(1961), 21 TI, 2 587, 593.) Defendants were in no way
prejudiced by any failure to prove corporate existence.
They were notified of the charges against them and are
protected from double jeopardy; the indictment clearly
identified American Casualty Company as the insuranee
company alleged to have been defrauded and enabled the
aceused to prepare their defenses (People vy. Dickerson
(1975), 61 Tl, 2d 580, 582; People v. Grieco (1970), 44
Hl. 2d 407, 409). Defendants are not entitled to reversal of
their convictions.

For the reasons stated, the judgment of the appellate
court is reversed, and the judgment of the cireuit court is
affirmed.

Appellate court reversed;
circuit court affirmed.

App. 34

APPENDIX C

Supplemental Opinion on Denial of Rehearing

Defendant Albert: Berland’s petition for rehearing: is
denied. Defendant Louis Wolf's petition for rehearing calls
this court’s attention to issues raised in two petitions for
relief under section 72 of the Civil Practice Aet (IIL Rev.
Stat. 1975, ch. 110, par. 72) filed in’ the eireuit) court
during the pendency of his direct appeal to the appellate
court, which was filed.on September 27, 1974. The first
section 72 petition was filed on Mareh 18, 1975; the see-
ond was filed on September 28, 1976, with a supplemen-
tal petition filed on October 8, 1976. On motion of the
State, the trial court dismissed the first petition on July
18, 1975, on the ground that the issues raised were not
properly before the court in the section 72 petition, The
memorandum of orders included in’ the reeord and the
notice of appeal in the seeond section 72 petition indicate
that it was dismissed on February 14, 1977. Wolf prose-
cuted separate appeals to the appellate court, which con-
solidated them on its own motion on Mareh 2, 1978. This
court, on Mareh 21, 1978, allowed the State’s motion to
iransfer the section 72 appeals to this court and to eon-
solidate them with the direct appeal then pending.

No oral argument was presented to this court concern-
ing the points raised in Wolf?’s section 72 petitions when
the consolidated eases were argued on May 10, 1978. Wolf?’s
petition for rehearing clearly states this but argues that
Wolf has been denied his right to have his appeal eon-
sidered, Without deciding the nature of the asserted right
fo appeal, we consider whether the trial court erred in
dismissing the petitions. The points relied upon are
raised in the two sets of appellate briefs transferred to this
court without change in substance or caption,

The cireuit’ court: properly dismissed the first seetion
72 petition. A section 72 proceeding is the forum in which

App. 35

“to correct all errors of faet occurring in the prosecution
of a cause, unknown to the petitioner and court at the time
of trial, which, if then known, would have prevented the
judement.?) (2phraim vy. People (1958), 18° TL 2d) 456,
458; see also People v. Hinton (1972), 52 TL, 2d 239, 243.)
Since most of the exhibits relied upon in the appellate
brief were incorporated in the post-trial proceedings and in
the record on direct appeal, a seetion #2 petition to ex-
amine them would be unwarranted. The trial eourt had
already evaluated the exhibits in the post-trial proceedings ;
it had held that the evidence contained therein either was
known or should have been known to the defendant prior
to trial and, in any event, did not justify a new trial sinee if
would not lave probably changed the result. The trial
court had also concluded, after consideration of the ex-
hibits, that trial counsel was not incompetent.

Specifically, the matters raised in Wolf’s seetion 72 ex-
hibits Nos, 2, 4, 5, 6, 7, 9, 14, 21, and 23 were ineluded
in the post-trial motion, were argued at the post-trial
hearing, and were incorporated in the record on direet
appeal. Those exhibits contained police and fire depart-
ment reports of interviews with testifying and nontesti-
fying witnesses, transeribed statements and a deposition of
festifying and nontestifying witnesses, and the Federal
testimony of testifying witness Mvelyn Mayberry. Varia-
tion between Ms. Mayberry’s testimony at trial and her
prior testimony in the United States distriet eourt was
raised on direct appeal in this court. The issue of whether
Wolf was bald and the defense’s failure to introduce photo
graphs of Wolf taken in 1968 and 1969 was also raised in
the post-trial motion and at the post-trial hearing. A
section 72 petition is not designed to provide a general
review of all trial errors nor to substitute for direet appeal.

App. 36

(People v. Jennings (1971), 48 TIL 2d 295, 299; People v.
Mamolella (1969), 42 UL 2d 69, 72; Nphraum vy. People
(1958), 13 TH. 2d 456, 460.) Points previously raised at
trial and other collateral proceedings cannot form the basis
for a section 72 petition, See Mphraim vy. People (1958), 18
Hl. 2d 456, 459; Brunswick v. Mandel (1974), 59 TIL 2d
02, 504,

The petition argues that the State obtained Wolf’s con-
viction through the suppression of evidence tending to
negate his guilt in violation of our Rule 412 (50 Til 2d R.
412). However, the issue of the State’s alleged suppression
of evidence and noncompliance with discovery, including
matters specifieally raised in the section 72 petitions, were
presented to the trial court at the post-trial proceedings
and cannot be raised again, The fact that the State did not
call all witnesses to the fire was also brought to the at-
tention of the trial court in the post-trial proceedings.

Although a challenge to identifieation procedures was
raised and addressed in the post-trial proceedings and on
direet appeal, Wolf again raises the issue in his seetion 72
petition. Mxhibit No. 17 is a hearsay report of interviews
with witnesses allegedly conducted by Wolf's investigator
after the trial court entered its judgment, The report
indicates that after the fire the police showed the witnesses
a mug shot of Wolf and inaccurately told them that the
man in the photograph had already been arrested and
charged. Exhibit No. 20 is a purported affidavit by Ms.
Mayberry that someone at the police station pointed Wolf
out to her as the arsonist a couple of months after the fire
so she could identify him at trial, In response, the State
filed two affidavits by Thomas Begg, an Hlinois Bureau of
Investigation agent, that witness Mvelyn Mayberry and
Albert Kyles told him that they never gave a post-trial
statement to Wolf’s investigator and that he had never

App. 37

pointed Wolf out to Ms. Mayberry. The State also asserts
that Ms. Mayberry’s signature on exhibit No. 20 is dif-
ferent from another signature from a month later. The
State points out that all three witnesses to whom Wolf's
arguments point were known to the defense prior to trial.
Robert Drain and Albert Kyles were on the State’s list of
witnesses, Ms. Mayberry was in fact interviewed prior to
trial, There was nothing to indicate that Wolf was pre
vented from discovering and raising these matters at
trial. (Glenn v. People (1956), 9 TI 2d 335, 340; see
People v. Collethh (A971), 48 The 2d 135, 187-38.) Further,
the allegations and supporting documents were merely
cumulative and would not have prevented the judgment
rendered beyond a reasonable doubt. See Williams. v.
People (1964), 31 Uk 2d 516, SIS; Kphraim vy. People
(15%), 13 Th 2d 456, 458; ef. Chapman vy. California
(1967), 886 U.S. 18, 17 1. Md. 2d 705, 87 S. Ct. 824.) The
two testifying witnesses had seen Wolf prior to the fire as
well as on the day of the fire, providing an adequate inde-
pendent basis for the in-court identifieation, (See People
v. Williams (1975), GO Tk 2d 1, 10-11.) These exhibits
did not present a basis for section 72 relief,

The first petition argues that Wolf's conviction was the
result of perjured testimony and relies on the exhibits filed
fo support the allegations. .\ seetion 72 petition ean pro-
vide a basis for relief from a judgment based on perjury.
(People v. Jennings (1971), 48 Tl 24 295, 298; People v.
Lewis (1961), 22 IL2d 68, 70-71.) Llowever, the trial eourt
did not err in dismissing the petitions sinee all the incon
sistencies in the witnesses’ statements charged in the peti-
tions as amounting to perjury were before the court in
the post-trial proecedings. “Counsel for Wolf presented a
detailed analysis of the evidence at the post-trial hearing
and intimated that the testimony given was false. Fur-

App. 38

thermore, the allegations in the petition and supporting
document do not support a charge of perjury and therefore
offered no basis for an evidentiary hearing. (See People
v. Jennings (1971), 48 Ilb2d 295, 298-99; ef. Withers v.
People (1961), 283 Tl 2d 131, 135.) An examination of
the exhibits reveals no more than discrepancies in deserip-
tions of defendant and what he was carrying given by dif-
ferent witnesses and by the same witnesses at different
times, and variations in what different witnesses reported
they saw, rather than the knowing use of false testimony.
This does not indicate perjury. (See People vy. Strother
(1972), 53 Ill 2d 95, 100-01; People v. Lagios (1968), 39
Ill. 2d 298, 301.) In sum, the trial court did not err in

dismissing the petition.

The second section 72 petition is barred by the two-year
limitations period applicable to section 72 proceedings (III.
Rev. Stat. 1975, ech. 110, par. 72(3); People v. Colleth
(1971), 48 Til. 2d 135, 187.) The petition was filed on
September 23, 1976, and the supplement to the petition was
filed on October &, 1976, which was more than two years
after the judgment of conviction was entered and the sen-
tence imposed on April 9, 1974. The bar of the statute of
limitations is tolled only by legal disability, duress, or
fraudulent concealment of the grounds for relief. (IIL Rev.
Stat. 1975, ch. 110, par. 72(3); People v. Collette (1971), 48
Ill. 2d 135, 137; Withers v. People (1961), 23 Th. 2d 1381,
133.) Although Wolf, in reply to the State’s motion to
dismiss, alleged fraudulent) concealment and generally
argues that the State suppressed evidence, the trial court
dismissed the section 72 petition following a hearing on the
issue of fraudulent concealment and an. examination of ex-
hibits filed in support of the petition. A review of the hear-
ing testimony by the two assistant State’s Attorneys who
conducted the prosecution indicates no basis on which to
conclude that the State fraudulently concealed evidence

App. 39

from the defendant and indicates that the judgment of dis-
missal is not against the manifest weight of the evidence.
The substance of the testimony was: that the proseeutors
had never seen exhibits Nos. 3, 5, and 6, consisting of an
appraisal of fire damage and two fire department reports,
until several weeks prior to the hearing on the seeond
petition, and that exhibit No. 2, the fire investigation re
port, was made available to defense counsel. In faet, ex.
hibit No, 2-was attached to both the first seetion 72 petition
and the post-trial motion. Fire Marshal Lynch, whose af-
fidavit Wolf obtained in November 1976, was ineluded on
the State’s list of witnesses.

The bar of the statute of limitations cannot be avoided
by asserting that the second section 72 petition was merely
a continuation of the first. Attorney Witney conceded at the
hearing on the second petition that it was not a continuation
of the first. The first proceedings had already terminated
at the trial level, and a notice of appeal had been filed on
August 16, 1975, more than a year prior to the filing of the
second petition.

Kiven if we put aside the bar of the statute of limita-
lions, an examination of exhibits reveals no factual allega-
tions sufficient to sustain Wolf's charge of perjury. (See
People v. Jennings (1971), 48 Tl. 2d 295, 299.) The new
exhibits indicate only that the fire battalion chief and fire
marshal who were present during the fire did not know
what caused it and placed the point of origin at a different
place than did the fire inspector who examined the premises
after the fire and provided evidence at trial that the fire
had been set. The fire damage appraisal indicates only
that the dollar amount of damage did not correspond direet-
ly to the point of origin of the fire and the intensity of the
heat in light of the size of the rooms affeeted and the pres-
ence of damage not attributable to the point of greater

App. 40

intensity of heat. The fire inspector’s in-e. testimony
did not contradict his written fire report. The the exhibits
faiied to support an allegation that the conviction was
based on the knowing use of false testimony.

For the reasons stated, the judgments of the cireuit court
dismissing Wolf’s section 72 petitions are aflirmed and the
petition for rehearing is denied.

Judqments affirmed;
rehearing denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0217%3A1. Public record. Not legal advice.