# Petition — BERLAND v. ILLINOIS (No. 78-1744)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979

## Text

Supreme Court of the United States

Octosper Term, 1978

ALBERT BERLAND,
Petitioner,
Vs.
PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

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

a

SHERMAN C. MAGIDSON

221 N. LaSalle Street

Chieago, Illinois 60601
Attorney for Petitioner

CARL P. CLAVELLI
on the brief

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

PAGE
TEDSTER Oo 1
Jurisdiction —........ PEE TEE TO Re 2
Neen ee ne i csesedanacucnsnaseceenen 2
Constitutional provisions involved _..............-.2-...........-.- 3
Nee cpssnnesenbemneomnnes 4
Reasons for granting the writ .............0...........2-.-.....0-.000 10

I.

LI.

Ill.

The appeal by the State from the Appellate
Court’s reversal of Berland’s conviction which
was based on the insufficiency of the evidence
at trial, and the Supreme Court of Illinois’ re-
view of the Appellate Court’s decision to acquit
Berland, violates the double jeopardy proscrip-
tions of the Illinois and Federal Constitutions ....

Circumstantial evidence of Berland’s business
relationship with the accused arsonist, Wolf,
Berland’s prior personal relationship with Wolf,
the poor condition of the subject property and
the false statement of Berland’s personal history
of fire losses on the fire insurance application do
not amount to proof beyond a reasonable doubt
that Berland aided or assisted in the commis-
sion of the arson as required by the Due Process
Clause of the United States Constitution —........

The defendant was denied his constitutionally
guaranteed right to the effective assistance of
i en

Ne wdecpesceveccenece

10

13

ii

. PAGE
Appendix A:
Opinion of the Llinois Supreme Court dated
IN, Gi TI scatters tip etna cass App. 1
Supplemental Opinion of the [llinois Supreme
Court dated February 20, 1979 ...00000.e App. 21
Appendix B:
RIE, scstenoninas LER iat NaN kde Conte MS aEN eee no APR App. 28
AUTHORITIES CITED
Cases
Anders v. California, 386 U.S. 738 (1967) 0.000.000.0002. 16
Benton v. Maryland, 395 U.S. 784 (1969) 0... 10
Bryan v. United States, 338 U.S. 552 (1990) -00220....... 10
Burks v. United States, 487 U.S. 1, 57 L.Ed.2d 1
I aR tas ithaca ceteris cen ciesanah ise tovasichenph tba sash eoeacaaciseegine 10, 12
Chapman v. California, 386 U.S. 18 (1967) ............... 17
Forman v. United States, 361 U.S. 416 (1957) 220.0... 10
Gideon v. Wainwright, 372 U.S. 585 (1963) 0000... 15
Glasser v. United States, 315 U.S. 60 (1942) 2200. 16, 20, 21
Green v. United States, 355 U.S. 184 (1957) 200... 13
Holloway vo Arkansas, 435 U.S. 475, 55 L.ed.2d 426
PORWR: wnccutaal avetianes a sienyesrudsdleitaclongiea ccaania tien nitaSececsaea vase 15, 16
In Re Winship, 397 U.S. 358 (1970) . ....................0..0... 14
People v. Berland, 52 LlApp.3d 96, 367 N..2d 181
PR ies CROs a a ee 13
People v. Mutter, 378 Ill. 216, 37 N.E.2d 790 (1941) ... 14
State v. Clay, 64 S.E.2d 117, 121 (W.Va. 1951) ............ 14

United States v. Alberti, 470 F.2d 878 (2 Cir. 1972) .... 18

lil

United States v. Ash, 413 U.S. 300 (1973)
United States v. Boudreaux, 502 F.2d 557 (5 Cir. 1974) 18

United States v. Carrigan, 548 F.2d 10583 (2nd Cir.
} + UR AER AT pe ceo Pata pCa oent ALE, NERO RR ERT ee lL ONT 18

United States v. Christopher, 488 F.2d 849 (9 Cir. 1973) 18
United States v. Gaines, 529 F.2d 1088 (7 Cir.°1976) —.. 18
United States ex rel. Hart v. Davenport, 478 F.2d 2038

(3 Cir. 1973)
United States v. LaRiche, 489 F.2d 1088 (6 Cir. 1977) 18
United States v. Mandell, 525 F.2d 671 (7 Cir. 1975) ... 18

United States v. Martin Linen Supply Co., 480 U.S. 564
EE oe a ae 11

Yates v. United States, 354 U.S. 298 (1957) oo... 10
Other Authorities
Article VI, Section 6 of the Constitution of the State
Oe I an eR te 10
Fifth Amendment to United States Constitution ....... 10

In the
Supreme Court of the United States

Ocrosper Term, 1978

No.

ALBERT BERLAND,
Petitioner,
vs.

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

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

Petitioner, Albert Berland, prays that a Writ of Cer-
tiorari be issued to review the judgment of the Illinois

Supreme Court.
OPINIONS BELOW

The opinion of the Illinois Appellate Court, dated Au-
gust 11, 1977, is reported as People v. Berland, 52 Ill.App.
3d 96, 367 N.E.2d 181 (1st Dist. 1977). The opinion and
supplemental opinion of the Illinois Supreme Court, dated
December 4, 1978 and February 20, 1979, respectively, are
reprinted in the Appendix.

2
JURISDICTION

The decision of the Illinois Supreme Court reversing
the decision of the Illinois Appellate Court was entered on
December 4, i978. Tllinois law required that all buildings be insured for at least
eighty percent of their “actual cash value.” Actual cash value
was determined by taking the replacement cost of a building and
subtracting the depreciation for age. Market value and purchase
price were not considered in determining actual cash value. The
policy issued with an eighty percent co-insurance clause which
under Illinois law requires a certain amount of insurance to avoid
a penalty proportionate to the amount of under-insurance for other
than a total loss. (Tr. 75-6, 397-403) However, no evidence of
the “actual cash value” of the building was offered at trial.

8

Upon review, the Appellate Court was moved to com-
ment that ‘‘|t]he State’s entire case against Berland is
based on these inferences of normal, legal aetivity.’? The
Appellate Court reversed Berland’s conviction on August
11, 1977 because it could ‘find no evidence to connect the
defendant with the burning of this building.’? The lower
court also held that one attorney could not represent both
defendants at trial due to the charge in Count 1 that Wolf
burned the building without Berland’s consent. Relying
upon Glasser v. United States, 315 U.S. 60, 67 (1942), the
Illinois Appellate Court noted that a conflict of interests
between defendants in a close case required reversal of the
convictions without showing specific instances of actual
prejudice.” People v. Berland, 52 IL. App.3d 96, 867 N.K.2d
181 (1st Dist. 1977)

The State, pursuant to Rule of the Illinois Supreme Court
(Ill. Rev. Stat., 1977, Ch. 110A, $315), sought leave to ap-
peal to the Illinois Supreme Court urging the reversal
of the decision of the Appellate Court. After granting the
State’s motion to hear the case, the Lllinois Supreme Court
reversed the decision of the Appellate Court. In its opinion,
the Illinois Supreme Court discounted defense contentions
that the trial court’s finding of guilt was due in part to his
erroneous belief that the property was over-insured. The

® Besides the conflict of interest issue relied wpon by the Appellate
Court, Berland complained that his trial counsel’s conduct of the
case was of such low caliber as to deny Berland reasonably effective
legal representation. Berland’s conviction rested on inferences drawn
from various circumstances. Counsel's inattention to the case, his
lack of familiarity with the law of conspiracy and of evidence in
general, his inability to understand insurance law and the necessity
of showing why Berland’s property had to be insured as it was,
all permitted Berland’s conviction for arson to be based on con-
jecture and negative innuendos. See, United States ex rel. Williams
‘v. Twomey, 7 Cir. 1975, 510 F.2d 634, 640-1.

9

Supreme Court concluded from the trial judge’s final state-
ment that Berland was convicted because of his intent to
burn the building for the insurance proceeds regardless of
the amount of insurance taken out on the property. In so
holding, the Supreme Court determined that the cireum-
stantial ‘‘evidence indicate|d] an intent to defraud an

insurance company.’ (App. p. 17)

The Supreme Court of Illinois also disagreed with the
Illinois Appellate Court’s determination that both Berland
and Wolf were denied the effective assistance of counsel.
People vy. Berland, supra, 52 Ul. App. 3d at p. 100-1, 103.
The Court held that **| 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. Defense contentions that trial counsel could
not, beeause of his conflict, present evidence favorable to
Berland despite Wolf's apparent involvement were re-
jected as speculative by the Illinois Supreme Court. (App.

p. 7)

A Petition for Rehearing raising the additional issue of
double jeepardy based upon the recent decision in Burks
v. United States, 437 U.S. 1 (1978) was rejected without
discussion on February 20, 1979 in a supplemental opinion.*

se

*The sole fact contained in the opinion of the Illinois Supreme
Court which has not been alluded to in this Statement is the false
notarization of Berland’s signature upon the application for the
fire insurance policy. (App. p. 17) We view this fact as incidental
since Berland never denied signing the application for fire insurance.
(P.Ex. 8 p. 414)

*“Defendant Albert Berland’s petition for rehearing is denied.”

10

REASONS FOR GRANTING THE WRIT

I.

The appeal by the St-*e from the Appellate Court’s re-
versal of Berland’s conviction which was based on the in-
sufficiency of the evidence at trial, and the Supreme Court
of Illinois’ review of the Appellate Court’s decision to ac-
quit Berland, violates the double jeopardy proscriptions
of the Ilinois and Federal ‘Constitutions.

The decision of the Illinois Appellate Court, in form and
effect, acquitted Berland of the charge of arson with intent
to defraud an insurer the same as if the order had been en-
tered at the trial level. Article VI, Section 6 of the Con-
stitution of the State of Illinois, and the Double Jeopardy
Clause of the Fifth Amendment to the United States Con-
stitution, bar the State from appealing any judgment of
uequittal. See, Benton v. Maryland, 395 U.S. 784 (1969).

In Burks v. United States, 437 U.S. 1,57 L. Ed. 2d 1 (1978)
the Supreme Court reviewed—and reversed as inconsistent
with each other and with the Double Jeopardy Clause—
several of its prior decisions” which had considered when
a reviewing court, upon reversal of a conviction, may order
a new trial without violating the prohibition against placing
a defendant twice in jeopardy for the same offense. Burks
was convicted over his claims that he suffered from a men-
tal illness at the time of the offense and could not be held
criminally responsible for his conduct. Burks admitted
the factual elements of the charge, but argued that the evi-
dence was insufficient to show he was sane at the time of

® Bryan v. United States, 338 U.S. 552 (1950); Yates v. United
States, 354 U.S. 298 (1957) ; and Forman v. United States, 361 U.S.
416 (1957); Burks v United States, supra, 57 L.Ed.2d at 10.

11

the offense. The Court of Appeals agreed and reversed
the conviction. l[lowever, rather than terminating the case
against Burks, the court remanded the matter to the trial
court for a new trial.

The question posed for review by this Court was ‘‘wheth-
er a defendant may be tried a second time when a review-
ing court has determined that in a prior trial the evidence
was insufficient to sustain the verdict of a jury.’’ 57 L.Ed.
2d at pp. 5-6.

After identifying the conflicting portions of its prior
holdings, the Court unraveled the inconsistencies by
affording absolute finality to a decision in a criminal case
which resolves the factual elements in the defendant’s
favor, even if that decision is rendered by a reviewing court.
The Court reaffirmed that a reversal by a reviewing court
has the effect of a judgment of acquittal which may ‘‘not
be reviewed, on error or otherwise, without putting [a
defendant| twice in jeopardy, and thereby violating the
Constitution.”” See also, United States v. Martin Linen
Supply Co., 430 U.S. 564, 571 (1977).

It is unquestionably true that the Court of Appeals’
decision ‘‘represente|d| a resolution, correct or not,
of some or all of the factual elements of the offense
charged.’’ United States v. Martin Linen Supply Co.,
430 US 564, 571, 51 L Ed 2d 642, 97 S Ct 1849 (1977).
By deciding that the government had failed to come
forward with sufficient proof of petitioner’s capacity
to be responsible for criminal acts, that court was
clearly saying that Burks’ criminal culpability had not
been established. If the District Court had so held in
the first instance, as the reviewing court said it should
have done, a judgment of acquittal would have been
entered and, of course, petitioner could not be retried
for the same offense. See Fong Foo v. United States,
369 US 141, 7 L Ed 2d 629, 82 S Ct 671 (1962) ; Kepner
v. United States, 195 US 100, 49 L Ed 114, 24 S Ct 797
(1904). Consequently, as Mr. Justice Douglas correct-

12

ly perceived in Sapir, it should make no difference that
the reviewing court, rather than the trial court, deter-
mined the evidence to be insufficient, see 348 US, at
374, 99 L Ed 426, 75 S Ct 422. The appellate decision
unmistakably meant that the District Court had erred
in failing to grant a judgment of acquittal. To hold
otherwise would create a purely arbitrary distinction
between those in petitioner’s position and others who
would enjoy the benefit of a correct decision by the
District Court. See Sumpter v. DeGroote, 552 F2d
1206, 1211-1212 (CA7 1977). (Footnote omitted) (Km-
phasis in original), Burks v. United States, supra, 57
L.ed.2d at p. 9.

The Supreme Court attributed the ‘‘present state of con-
ceptual confusion’? in double jeopardy analyses to the
failure to distinguish ‘‘between reversals due to trial error
and those resulting from evidentiary insufficieney.’? Burks
v. United States, supra, 57 L.Kd.2d at p. 12. The Court
pointed out that a reversal for trial error is without any
implication of a defendant’s guilt or innocence, but is a de-
termination that there was a fundamental! procedural error
during the trial process which does not bar a retrial be-
cause both the sovereign and the defendant are entitled to
receive a fair adjudication of guilt or innocence free from
error.

The same cannot be said when a defendant’s convie-
tion has been overturned due to a failure of proof at
trial* ** Moreover, such an appellate reversal means
that the Government’s case was so lacking that it
should not have even been submitted to the jury. Since
we necessarily afford absolute finality to a jury’s ver-
dict of acquittal—no matter how erroneous its decision
—it is difficult to conceive how society has any greater
interest in retrying a defendant when, on review, it is
decided as a matter of law that the jury could not
properly have returned a verdict of guilty. (Footnote
omitted) (Emphasis in original), Burks v. United
States, supra 57 L.ed.2d at pp. 12-13.

13

Since Burks, supra, holds that an order of a reviewing
court reversing a conviction for insufficient evidence is the
equivalent, for jeopardy purposes, of a judgment of aequit-
tal in the trial court, further prosecution by petition to
have the judgment of the Illinois Appellate Court reviewed
under the Illinois Supreme Court’s discretionary powers
was barred by the double jeopardy clauses of the Illinois
and United States Constitutions. Cf. Green v. United States,
355 U.S. 184, 187-8 (1957). We respectfully submit that
the proceedings following the Illinois Appellate Court’s
decision reversing Berland’s conviction for insufficient evi-
dence appear to be barred under this Court’s recent hold-
ing in Burks as an unconstitutional attempt to prosecute
Berland following an adjudication of his innocence based
on factual considerations.

II.

Circumstantial evidence of Berland’s business relation-
ship with the accused arsonist, Wolf, Berland’s prior per-
sonal relationship with Wolf, the poor condition of the sub-
ject property and the false statement of Berland’s personal
history of fire losses on the fire insurance application do
not amount to proof beyond a reasonable doubt that Ber-
land aided or assisted in the commission of the arson as re-
quired by the Due Process Clause of the United States
Constitution.

Though conceding that the only evidence introduced
against Berland was circumstantial in nature, the Illinois
Supreme Court upset the decision of the appellate court
which could ‘‘find no evidence to connect | Berland] with
the burning of this building.’’ People v. Berland, 52 Tl. App.
3d 96, 367 N.E.2d 181, 187 (1st Dist. 1977). While we agree
in the abstract that a defendant may be accountable for the
offense without personally having set the fire, we respect-
fully submit that the facts of Berland’s prior business and

14

social relationship with Louis Wolf, the financial and phys-
ical condition of the building and the ‘‘false, notarized
statement’’ on the fire insurance application are woefully
inadequate to produce a conviction ‘‘upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime,’’ as required by the Due Process Clause. In Re
Winship, 397 U.S. 358, 364 (1970) (App., infra, pp. 16-17).

In State v. Clay, 64 S.E.2d 117, 121 (W.Va. 1951), the
defendant was convicted of arson with the intent to de-
fraud several insurance companies. /-vidence disclosed that
following his separation from his wife, the defendant se-
cured insurance in an amount five times the value of cer-
tain personal property in his wife’s possession after mis-
representing to the insurers that the property was in his
home. Less than three months after the policies went into
effect, an incendiary fire destroyed the property the day
after the defendant had threatened and struck his wife for
having him charged with non-support. On review, the de-
fendant’s conviction was reversed though he was ‘‘the one
person in the world to whose interest it was to have this
building and its contents destroyed.”’

A similar result was entered by the Illinois Supreme
Court in People v. Mutter, 378 Ll. 216, 37 N..2d 790, 794-5
(1941). Two brothers were convicted of burning their
store. The evidence was wholly circumstantial and included
the defendants’ poor financial condition, and a policy of
insurance which was about to be cancelled in an amount
exceeding the value of the property. The evidence against
Max Mutter also included his presence at the store shortly
before the fire and witnesses who testified that he had re-
moved some of the stock before the fire broke out. The
Court affirmed his conviction but reversed the conviction
of the other brother, Martin, stating:

15

The evidence above set forth demonstrates that the
People have failed to prove Martin Mutter guilty be-
yond a reasonable doubt. Throughout the evidence on
behalf of the People he is hardly mentioned, except on
the questions of title and his family and business rela-
tionships with the other two defendants. And through-
out all the evidence there is nothing to indicate that
Martin himself actually did the work of setting the
fire, was even present at the time of its preparation,
or that he helped plan it. And there is nothing in his
conduct after the fire was started to prove his guilt.

We urge this Court to review the decision of the Illinois
Supreme Court in light of these holdings, and the opinion
of the appellate court that there is a reasonable hypothesis
to be drawn from the evidence that is consistent with Ber-
land’s innocence.

ITI.

The defendant was denied his constitutionally guaran-
teed right to the effective assistance of counsel.

In rejecting Berland’s claim that he was denied the effee-
tive assistance of counsel because of his retained counsel’s
allegiance to his co-defendant Wolf, charged in the same
indictment with burning Berland’s building without Ber-
land’s consent, the Illinois Supreme Court has held that
Berland ‘‘must show an actual conflict of interest mani-
fested at trial in order to prevail ...’’? This position is
inconsistent with Holloway v. Arkansas, 435 U.S. 475, 55
L.ed.2d 426 (1978), and incorrectly assumes that the trial
judge is under no obligation to make inquiry once he is
placed on notice that there is a potential conflict between
the interests of defendants represented by the same attor-
ney.

It is axiomatic that every defendant is entitled to have
the assistance of counsel (Gideon v. Wainwright, 372 US.
335 (1963)), and that the denial of such assistance so ef-

16

fects his right to a fair trial that a conviction must be
reversed even if no particular prejudice is shown and even
if the defendant was clearly guilty. /Jolloway v. Arkansas,
435 U.S. 475, 55 L.ed.2d 426, 487 (1978). The purpose of
counsel is to preserve the adversary contest by putting
the prosecution to it? full burden of proof through coun-
sel’s role as an ‘‘active advocate’? on his client’s behalf.
United States v. Asis U.S. 300 (1973); Anders v. Cali-
fornia, 386 U.S. 738, 744 (1967).

The recent decision in Holloway v. Arkansas, 435 U.S.
475, 55 L.Ed. 2d 426 (1978), is instruetive in determining
the proper legal standards to be applied to a claim of
prejudice from joint representation. In Holloway, supra,
the trial judge had been informed of the possibility of a
conflict of interest between the jointly represented defen-
dants, but denied counsel’s motion for appointment of sep-
arate counsel. On appeal from their conviction, the Su-
preme Court of the State of Arkansas ruled, as did the Illi-
nois Supreme Court, that ‘¢ ‘| T|he reeord must show some
material basis for an alleged conflict of interest, before re-
versible error occurs in single representation of co-defen-
dants.’ 539 S.W. 2d 435, 439 (Ark. 1977).’’ 55 L.Ed.2d at
432. (App., fra, p. 7)

After examining its prior decision in Glasser vy. United
States, 315 U.S. 60 (1942), and noting that it is the funetion
of the trial judge to ensure that the accused has the assis-
tance of counsel when the possibility of a conflict of inter-
est between co-defendants is brought to the trial court’s
attention (435 U.S. at 484, 55 L.d.2d at 434), the Supreme
Court ordered the petitioners’ convictions reversed; in so
doing, this Court refused once again to speculate upon the
effects of the petitioners’ joint representation, and rejected
those decisions that require the defendant to demonstrate
prejudice before ordering a reversal, stating that the right

17

to have the assistance of counsel was presumed to have
been violated regardless of whether prejudice was inde-
pendently shown.

Though the Court declared that it would not resolve the
divergent approaches to this issue which courts have
adopted when the possibility of a conflict had not been
brought to the trial court’s attention (55 L.Kd.2d at 433-4),
the Court dismissed as not ‘‘susceptible to intelligent, even-
handed application’? any rule which requires a showing of
specific prejudice due to joint representation, explaining
that ‘‘the evil... is in what the advocate finds himself
compelled to refram from doing ... Thus, an inquiry into
a claim of harmless error here would require, unlike most
cases, unguided speculation.’’ 55 L.Ed.2d at 488 (emphasis
in original). See alse, Chapman v. California, 386 U.S. 18,
23 (1967).

In language applicable to this case, counsel for these de-
fendants could hardly have been expeeted to spread of ree-
ord those factors favorable to his one client, Berland, but
unfavorable to his other client, Wolf. Thus, the decision
in Holloway does not permit any inquiry which relies upon
the manifestation of actual conflicting interests in the ree-
ord of trial. For this reason, the proper inquiry must be
limited in scope to one which requires only a ‘*showing of
a possible conflict of interest or prejudice.’’ United States
ex rel. Hart v. Davenport, 478 F.2d 208, 210 (8 Cir. 1973) .7°
See, Holloway vy. Arkansas, supra, 55 L.Md.2d at 436-8;
ef. App., ifra, pp. 7-8.

We do not advocate automatic reversal whenever an attorney
represents co-defendants. It is only when the record discloses a
real possibility of conflicting interests, such as that found by the court
in United States ex rel. Hart vy. Davenport, supra, 478 F.2d at
207-8, 269, where the court considered the “different positions” of
the defendants and pointed to an “obvious defense strategy” that
was not employed on petitioner Hart’s behalf.

18

However, even those courts that require evidence of
prejudice from joint representation when the denial of
assistance is not claimed until after trial, recognize the
duty of the trial judge to advise the defendants as soon
as the possibility of conflict comes to the court’s attention.
United States v. LaRiche, 439 ¥.2d 1088, 1095, n.5 (6 Cir.
1977); United States v. Boudreauax, 502 2d 557, 8 (5 Cir.
1974); United States v. Carrigan, 543 F.2d 1053 (2nd Cir.
1976); United States vy. Alberti, 470 F.2d 878, 881-2 (2 Cir.
1972); United States vy. Christopher, 488 F.2d 849, 851 (9°
Cir. 1973); see, United States v. Mandell, 525 2d 671, 676
(7 Cir. 1975) (cases eited); cf. United States v. Gaines, 529
F.2d 1038, 1044 (7 Cir. 1976).

Count 1 of the indictment was a clear indication to both
court and counsel that there was a conflict of interest be- |
tween Berland and Wolf. However, Count | did not create
the conflict in this ease. Counsel created it when he ignored
the warning clearly spelled out in Count I that his two
clients had adverse interests. Thus, we do not point to
Count I as the reason for the conflict; we point to the
charge as an indication to all—-and ignored by all—that
such a conflict existed.

Counsel’s allegiance to Wolf prohibited him from being

sé 99

active advoeate’’ on Berland’s behalf, and barred any
cross-examination of his other client Wolf, identified as

an

the arsonist, or inquiry into Wolf’s motive to act alone.
Even if trial counsel could be intellectually expected, under
these circumstances, to introduce evidence during the de-
fense case showing that Wolf had cause to burn the build-
ing because of some grudge or other motive contrary to
Berland’s interests, he could not ethically have done so.
The situation is closely analogous to that encountered in
United States v. Gaines, 529 F.2d 1088 (7 Cir. 1976), where
trial counsel originally represented Gaines and two co-de-

19

fendants who eventually had conflicting trial interests.
Prior to trial, counsel withdrew as the attorney for the two
defendants whose interests conflicted with Gaines’. Never-
theless, as Judge Tone explained:

“The attorney’s subsequent withdrawal from his
representation of Hubbard and nglish in this case
did not remove the confliet. It continued to be his
duty to refrain from taking any action adverse to their
interests in a manner in which he had represented
them. Cf. Marketti v. Fitzsimmons, 373 F.Supp. 647
(W.D.Wis. 1974); and cf. A.B.A. Code of Professional
Responsibility, DR. 5-105 (A), (B),’? 529 F.2d at 1042.
(Mmphasis added)

So here, though the offending count was removed, trial
counsel was still forbidden to introduce evidence exculpa-
tory of Berland, but ineulpatory of Wolf. And it is for
this reason that the cases, in precluding divided loyalties,
relate back to the moment at which the divided loyalty 1s
created. As Judge Tone explained:

“(Counsel’s withdrawal from representation of some
of the defendants, even af it occurs before trial, may
not obviate the confliet problem. It does not do so if
either his continuing duty to do nothing which would
injure the interests of his former clients in connection
with the subject matter of his representation of them
or any other incentive to avoid injuring his former
clients is in confliet with his duty of undivided loyalty
to the client he continues to represent.’? 529 F.2d at
1044 (Mmphasis added)

No citation of authority is necessary to refer to trial
counsel’s duty to prepare a case, in advance of trial, in
suck a manner as to bring to the attention of the trier of
fact evidence favorable to his elient. It is equally well-
established that trial counsel is to employ cross-examina-

20

tion to the same end. In this case, trial counsel could not,
beeause of bis conflict, devote his attention in preparation
and cross examination to factors explaining Berland’s inno-
cence despite Wolf’s apparent involvement. The obvious
rationale underlying the tenet precluding divided loyalties
is not so much a fear of the actions which such a situation
rauses the attorney to take as it is a fear of resulting in-
action by the attorney. In Glasser vy. United States, 315
U.S. 60 (1942), the Supreme Court held that an attorney’s
representation of defendants with potentially inconsistent
defenses was in violation of the Sixth Amendment to the
Constitution. It is significant that the Glasser Court went
far beyond holding that the facts of the case demonstrated
a conflict: ‘‘Irrespeetive of any conflict of interest, the
additional burden of representing another party may con-
cewably impair counsel’s effeetiveness.”? 315 U.S. at 75
(emphasis added). For precisely this reason the Glasser
Court admonished that ‘‘|t/he right to have the assistance
of counsel is too fundamental and absolute to allow courts
to indulge in nice calculations as to the amount of preju-
dice arising from its denial.”? 315 U.S. at 76.

Any effort to distinguish Glasser on the basis that the
defendants there objected to their joint) representation
represents a shocking attempt to saddle the client) with
responsibility for one of the evils of our profession. Judge
Tone had this to say about the argument:

“Like other constitutional rights, this right | to
counsel whose loyalty is not divided between clients
with conflicting interests | may be waived, * * * but the
waiver must be deliberate and made with an under-
standing of the conflicting interests and the dangers
resulting from them,’’ United States v. Gaines, supra,
529 F.2d at 1045.

21

In order to implement this principle cffeetively, the
Gaines Court established the following procedure :

“The trial court clearly does have an obligation,
whether counsel is appointed or retained, to be alert
for indicia of conflict at all slages of the proceeding.
meluding during trial. United States v. Mandell, 525
Wid 671, 677 (7th Cir. 1975). When the possibility of
a contliet appears during trial, the court must investi-
gate the relevant faets, advise the defendant, and de-
termine whether continued representation, absent
waiver, would violate the sixth amendment. United
States v. Jeffers, 520 F.2d 1256, 12693 n.11 (7th Cir.
1975). * * * (emphasis added)

“When an actual conflict appears, the court must
bring the faet of its existence and the resulting dan-
gers which are reasonably foreseeable to the attention
of each affeeted defendant so he can make an informed
judgment at that time as to whether he wishes new
counsel or wishes to continue with present counsel.
Having done that, the court has fulfilled its duty and,
if, despite the conflict and the attendant dangers, the
defendant elects to continue with the same counsel, he
thereby waives his sixth amendment right.” * *’? 529
2d at 1043-44.

We urge this Court to adopt the Games procedure and,
thereby, resolve the split among the Circuits noted in /7ol-
loway v. Arkansas, supra, 435 U.S. at 483-4, 55 Led.2d at
433-4, and place an affirmative duty upon the trial judge
to assure that criminal defendants represented by single
counsel are advised of the possibility of conflieting, inter-
ests. We note, however, that in the instant case where an
actual conflict was manifested in the charges brought to
trial that this Court’s prior decisions in Glasser vy. United
States, supra, 315 U.S. at p. 71, and //olloway v. Arkansas,
supra, 435 U.S. at pp. 434-5, place a duty of inquiry upon
the trial judge which was not met.

CONCLUSION
For the above and foregoing reasons, we respectfully
urge the Court to issue its Writ of Certiorari to the Su
preme Court of the State of TWinois.

Respectfully submitted,

SuerMan (. Maagipson
Attorney for Petitioner

Carn PL CLAVELLA
on the brief

APPENDIX

mm,

APPENDIX A.

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

THE PROPLE Ol THE STATE OF TLLINOIS,
Appellant, v. ALBIERT BERLAND ef al., Appellees.

MR. JUSTICE KLUCZYNSKE delivered the opinion of
the court:

Defendants, Louis Wolf and Albert Berland, were con-
vieted of arson with intent to defraud an insurer (IIL. 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 144 to 41% years in the Illinois State Penitentiary
and fined $10,000. The appellate court reversed the convic-
tions on two grounds: that the single, retained counsel
could not effeetively represent the conflicting interests of
the two defendants and that there was insuflicient evidence
of guilt to sustain the convietions. (52 ll. App. 3d 96.) We
granted the State’s petition for leave to appeal under our
Rule 315 (65 Tl. 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, Llinois, 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 aceclerant 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. 2

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 beeause the general verdiet precluded
determining whether the jury had aceepted 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 O14 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 (TIL Rev. Stat. 1969,
ch, 38, par. 20-1(a)). Count TL charged Wolf and Berland
fogether with knowingly damaging a building by means of
fire with intent to defraud an insurer (IIL Rev. Stat. 1969,
ch. 38, par. 20-1(b)). Count TIL charged both defendants
with conspiracy to commit arson (Il, Rev. Stat. 1969, ch.
38, par. 8-2).

A single, retained attorney entered his appearance on
behalf of both defendants. Maeh 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
as additional co-counsel for defendant Wolf. Thereafter, at
the conclusion of the People’s case, count I, charging Wolf

App. 3

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 airest 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 (Tl Rev. Stat. 1969, eh. 88, 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 transeripts 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 correetly 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 (19384),
359 TL 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 the 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 prospee-
tive purchaser and identified himself as the broker. Wolf

App.4

purchased the property in his name and transferred it to
Berland as his nominee. Tithe 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. Tle was frequently present in’ the
vicinity of the building. Wolf examined its physical eon-
dition, ordered eoal for it, and referred econtraetors 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 car aceident 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 toa question requesting “the applicant’s 5
year loss record for fire’? Inseranee coverage in the
amount of $100,000 was issued on August 13, 1969, hy
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 “nelual
eash value’? of the strueture, which is measured by re-
placement cost less depreciation of up te 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 vaeant.
Rent revenues had fallen from $650 per month to $250

App. 5

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. Hle 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 ean. Judging from the way the man walked, the ean
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 carrying
the gas can. Kyles had seen Wolf on three or four prior
oceasions 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,

Kvelyn Mayberry saw a dark station wagon drive up to
715 South Lawndale on November 19, 1969. Two white
men sat in the ear 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. Tle 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. 6

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. Tle 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) pam. on
vember 19, 1969, and that he and Wolf had Tne. ta
gether, He had no independent recolleetion of the ieet-
ing until he looked at his appointment calendar. he
calendar, however, contained no indication of a meeting
with Wolf on that day. It indieated only that Siegel had a
12:30 pam. 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. Tle 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 aan. and Topi. on November 19, 1969.
He had a cup of coffee with Wolf and Allen at about 12
pain. Impeachment evidence consisting of time and pay
records indicated Caithaimer was teaching school at that
time on that day. THe had been absent two days earlier.

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

App. 7

A defendant must show an actual eonflict of

interest
manifested at trial in order to prevail in a constitutional
claim of ineffective assistanee of counsel due to joint
representation of co defendants by a single attorney. (Peo
ple v. Durley (1972), 53 Tl 2d 156, 159-61; People v.
MceCasle (1966), 35 Th 2d 552, 556; People v. Somerville
(1969), 42 Tl. 2d 1,9.) Other jurisdictions coneur in this
position (see United States v. Mandell (7th Cir. 1975), 525
I’.2d 671, 677, cert. denied (1976), 423 U.S, 1049, 46 I.
Nd. 2d 687, 96S. Ct. 774: United States vy. 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;
Inited States v. Christopher (9th Cir, 1973), 488 F.2d
849, 851; State v. Jeffrey (1973), 1683 Mont. 92, 96, 515
P.2d 264, 367; ef. United States vy. Smith 0th 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 Iolloway v. Arkansas (1978), 435 U.S.
175, 484, 55 L. Md. 2d 426, 434, 98 S. Ct. 1173, 1178.

.The record is devoid of any evidence of an actual
confliet of interest. Berland argues that count IT was an
indicium of a fundamental confliet whieh 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 coneurs that joint representation
preeluded 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. 8

joint representation of co-defendants is not per se uneon-.
stitutional (//olloway ve Arkansas (1978), 485 US. 475,
482, 55 L. Md. 2d 426, 433, 98 S. Ct. 1173, 1178; see
People v. Durley (1972), 58 Th 2d 156, 160; Caaited States
v. Mandell (7th Cir, 1975), 525 Kid 674, 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 aetual eonfliet, and the
record reveals none, This court will not disturb a judg-
ment on the basis of hypothetical confliets. People v. Me-
Casle (1966), 85 Th 2.552, 556; see also Kruchten v. Hyman
(Oth Cir. 1969), 406 F.2d 204, B11; State vy. Jeffrey (1978),
163 Mont. 92, 97, 515 P.2d 364, 267.

Both defendants denied their guilt. Berland entered a
simple denial. Wolf presented an alibi. There was no
inconsistency in these defenses, Defense counsel effee-
tively cross-examined the eyewitnesses who testified di
rectly against Wolf by questioning the aecuracy of their
festimony, Count To was nol-prossed before the defense
presented its evidenee, thus removing any abstraet possi-
bility of conflict. Further, separate eo-counsel appeared
for Wolf before the close of the State’s ease. The reeord
revealed no basis for either defendant to assert that the
other alone burned down the building. The two men were
longtime friends. Mven after the fire they ehose to be
represented by the same counsel. The faets are analogous
to those in People v. MeCasle (1966), 35 Th 2d 552, where
this court found it peoper for a single aitorney 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
fo support such a theory. There was no inconsisteney in
their defenses. Both defendants denied knowing one an-
other and presented alibi defenses.

App. 9

People vy. Ware (1968), 39 TI 2d 66, illustrates an
instance of conflict, in contrast to faets 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. Games (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 whieh had been introduced with-
out the names of the co-defendants whom Gaines had
implicated. Tt also served to proteet 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 implieated them.

The recent decision by the United States Supreme
Court in /olloway vy. Arkansas (1978), 485 U.S. 475, 55
In Wd. 2d 426, 98 S.Ct. T1738, does not preelude 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 LL. Md, 680, 62 S. Ct. 457. There
the court held that for a trial judge to insist upon joint
representation in the face of objeetion 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 ce-defendant over
Glasser’s objection. Actual instances of conflict appeared
during the course of the trial,

App. 10

By contrast, counsel here was not foisted upon either
defendant, Nor does the record reveal any aetual eonfliet,
Mach defendant selected and retained the trial counsel to
represent him. No objection was made fo jomt representa
lion until after eonvietion even though additional eounsel
represented Wolf prior to motions at the elose of the
State ts enwe, See People vo Somerville (1969), 42 Th Gal 1,
Y: Slate vo Jeffrey (V9OTR), TO Mont. 98, O77, STD Poved B64,
367.

People vy Stoval (1968), JO TH, 2d 109, People vo Nester
(1977), OG TR Va 162, and People vo Coslet (1977), 67
HW 2a Te, rehed upon by the defendants are not eon
trolling None tivolved jot representation of two de
fondanty by ono single attorney, and there, untike here,
nefoal eoufliets die to competing commitments by the de
fonse attorney to other current or former clients existed,
In People vo Stove! counsel and his liw firm represented
the owner of the gewelry store the defendant was charged
With burglarizing. Tn People vo Wester counsel, prior to
becoming defense attorney, had worked on the ease asa
prosecutor, In People vo Costel coiisel represented both
the defendant who liad been charged with murdering her
husband and the administrator of the husband's estate. A
contliet arose sinee the estate stood to benefit, from oa
eonvietion, furthermore, all three cases invelved ap
pormfted counsel, rather than retained counsel as here, de
manding even closer serutiny for econfleting interests (Peo
ple ve Stovall (1968), JO TL 8d 109, TIS: People vo Coslet
(1977), OF WL Yad 127, 88s People vo Wester (1977 , 66
HH. val 162, 166),

This court adopted a por se confliet of interest rule in
People vy. Stoval (1968), 40° TI, 2d 109, 113, whieh pro
vides that af an attorney's commitments to others un

App. 11

dermine his loyalty to the defendant’s interest, if is un
necessary fo allege and prove prejudiee to sustain a: find.
inv of on violation of the right to counsel In formulating
that rule this court relied upon Glasser vy. United States
(1942), 315 ULS. 60, 75-76, 86 1. Nd. G80, 702, 62 S. Ct.

47, 467, where it was said:

“Po determing the precise degree of prejudice sus
fnined © * “is at onee diffienH and unnecessary. The
right to have the assistanee of counsel is too funda-
mental and absolute to allow courts to tdulwe in niee
calculations as to the amount of prejudice arising from

it chenaad.?’

Glasser of course concerned an instanee of enforeed dual
representation of defendants with aetual conflieting in
ferests. The record here, however, reveals no actual eon
fliets thus it is Hnnecessary fo apply the per se rule. See
alsa People vo Ware (1968), 39 TIL2d 66, 68.

Wolf argues that upon the appearanee of a possible
conthet if is necessary for the trial court to inquire into
the nature of the potential confliets. Some jurisdietions
require the trial court to admonish all jointly represented
co defendants about the possible econtliets inherent in dual
representation and to inquire whether each defendant has
voluntarily and with full knowledge of the consequences
decided to accept such representation. Tf sueh inquiry is
not made, the proseeution must show beyond a reasonable
doubt that a prejudieml confliet of interest did not exist to
avoid reversal of the convictions for lack of assistance of
counsel (See lord vy. United States (D.C Cir 1967 , aie
hiv 128, 125, relying on Lollar vy. United States (D.C. Cir.
1967), S76 Phil 243, 247; State v. Olsen (1977),

Minn. ; , 2o8 NW S98, 907-08; cf. United
States vo Lawrie (Sth Cir, 1977), S68 F.2d O98, 104-05

App. 12

(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 proseention); United States vy. Foster (1st Cir.
1972), 469 F.2d 1,5 Cplacing duty of inquiry on the eourt
but only shifting burden of persuasion to the proseention
to show that the existenee of prejudiee was improbable
where inquiry was not made).) At the opposite end of the
spectrum, the Seventh Cirenit Court of Appeals holds only
that the trial court should be watehful for indicia of
confliet during trial Only when an actual eonfliet appears
is it necessary for the trial court to bring the faet of its
existence to the attention of the defendant. (l’nited States
v. Mandell (7th Cir. 1975), 525 F.2d G71, G77; United
States v. Gaines (7th Cir. 1976), 529 F.2d 1088, 1043-44.)
Other jurisdictions take intermediary positions short of
requiring judicial inquiry in all eases of joint representa
tion, See United States vo Lawrie (Sth Cir, 1977), 568
h.2d 98, 102-03, and eases cited therein; State v. Jeffrey
(1978), 168 Mont, 92, 98, 515 P.2d 3864, 368 (suggesting
it would be wise to make sueh 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 Th 2d 1, 10). The erneial determination. is
whether there is a confliet, since absent such confliet there
is no threat to a defendant’s right to the assistanee of
separate counsel, Neither Glasser vy. United States (1942),
315 U.S. 60, 86 1. Kd. G80, 62S. Ct. 457, nor Holloway v.
Arkansas (1978), 485 U.S. 475, 55 tL. Kd. 2d 426, 98 S.
(ft. 1178, 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 uneon-
stitutional there is no need to require judicial inquiry un-

App. 18

Hil the confliet appears. The language in Glasser and [ollo-
way that itis the duty of the trial judge to see that the trial
is conducted with solicitude for the essential rights of the
acensed is directed specifically to trial court. insistence
upon joint representation where counsel or the defendant
has requested separate representation, Sinee there was
no conflict here, judieial inquiry was not required,

The appellate court conelnded there was insufficient evi
denee to support the convictions, On the basis of the

record before us, we do not agree,

Wolf challenges the weight and eredibility of the testi-
mony of the two eyewitnesses. Tlowever, in a bench trial
if is the provinee of the trial court to determine the
erodibility and weight of the testimony, to resolve the
inconsistencies and confliets therein, and to render its de-
cision accordingly. This court will not substitute its judg-
ment oon these matters unless the proof is so unsatis
factory that a renonable doubt of guilt appears. The trial
court, unlike the reviewing eourt, was in a position to ob-
serve the witnesses. People vy. Pagan (1972), 52 Tl. 2d
526, 534; People vo Lofton (1977), 69 I. 2d 67, 72-73.

The testimony of the two eyewitnesses was largely con
sistent both internally and when compared with the tes-
fimony of the other eyewitness. Both eyewitnesses agreed
they saw two men enter the building between 9 and 10
am. One man, whom they identified as Wolf, carried a
gas-can info the building. Both had seen Wolf on several
prior oceasions lending further eredence to their identifiea-
tion of him. Both identified Wolf in eourt. There were
some inconsistencies in the testimony, Kyles said the gas
ean 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 diserepaney in the

App. 14

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 beeause the evi-
denee is eontradietory.”’ (People v. Guido (1962), 25 Th
2d 204, 2ZO8; seo also People vo Ahis (1976), 68 Th 2d 296,
298.99; People vo Pagan (A972), 52 Wh2d 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
pereeive no basis to disturb the findings of the trial eourt.

The strength of the eyewitness testimony was not di
minished by Wolf's alibi defense witnesses. The aliki
witnesses’ festimony was thoroughly impeached. Ted Allen
had no reeolleetion of the date of the meeting until he
spoke with Wolf, Caithaimer, and Siegel on the day he
testified. Siegel had no independent recolleetion of the
meeting until he looked at his appointment ealendar, but
the calendar did not note a meeting with Wolf on that day.
Caithaimer was teaehing sehool when he testified he was
meeting with Wolf, Siegel testified contrary to Caithaimer
and Allen coneerning who had lineh with Wolf. The trial
judge was not obligated to believe the testimony of the
alibi witnesses over the positive identifieation of the ae-
eused., (People vy. Jackson (A973), 54 Th 2d 148, 149;
People v. Catleit (1971), 48 Th 2d 56, 64.) Whether the
alibi evidenee ereated a reasonable doubt of gwuilt was a
question primary for the trial court (People v. Garkus
(1934), S58 Tl. 106, 111-12), and here the trial judge in-
dieated the alibi evidence did net convinee him that the
alleged meeting took place.

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

App. 15

fimony and the strength of the alibi defense. Ino such
eases, the alibi evidenee cannot be ignored. However, this
court noted that the testimony of a single witness that is
positive and eredible is sufficient to eonviet 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, including inconsistent deseriptions
of the defendant and the laek 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 eoneoetion. By contrast the identification here was
strong, and the alibi was impeached. Further, the alibi
defense was of reeent origin. The defense did not explore
it until after trial began and several years after the in-
cident,

Wolf argues that the testimony of Mayberry and Kyles
is inherently imeredible and, therefore, is insufficient to
support a conviction. Tle cites People vy. Dawson (1961),
22 TN. 2d 260, 265-66. In that case the witnesses testified
that a police officer went into a hotel taxi offiee 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, Tle 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 earried a gas ean,
and the other earried a ladder. They were men who had
heen seen working around the building on prior occasions.
Their conduct, therefore, was not extraordinary like the
alleged conduet 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 proceedure prior to trial.

App. 16

The witnesses were shown this picture in connection with
the civil trial in the United States distriet court by an
attorney for the insuranee company before Woll was in-
dieted, We refrain from addressing the merits of this
contention sinee it} has been waived, People v. Pierce
(1972), 52 Il. 2d 7, 10.

Jorland argues that the evidenee against him was. eir-
cumstantial, and therefore insufficient to support the eon
vietion. Tt consisted of depositions and transeripts of
proceedings from the civil ease in the United States district
court, housing files, the insuranee applieation and poliey,
and evidence that the man who apparently notarized the
appliention had died before the date of the applieation.
Yet, even if the evidence was eireumstantial, if is clear that
if ean support a econvietion as long as it produces a
reasonable and moral certainty that the defendant eom-
mitted the erime. (People v. Fletcher (1978), 72 TL2d 66,
71; People ve Williams (1977), 66 TIL 2d 478, 484-85.)
Berland and Wolf were friends and business associates for
80 to 85 years, Wolf was involved in the aequisition and
management of the property for Berland. The addresses of
one of Berland’s aliases, listed as a beneficiary of the land
frust, were business addresses of Wolf. Wolf's nephew was
atone point named as a beneficiary as security for a loan
from Wolf to Berland. The building was losing money
hefore the fire, and Berland was trying to sell it. He was
compelled to take the property back beeause of the fail-
ures of the purchasers to meet the eontraet obligations.
The poor condition in whieh Berland maintained the build-
ing had given rise to an action in the housing eourt for
necessary repairs. There were 35 violations of the Mu-
nieipal Code of Chicago, including the presence of vermin
and structural violations.

App. 17

Borland’s appleation 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 evidenee indieates an intent to defraud an
insuranee company, Berland, of course, can be accountable
for the offense even though he did not physically set fire
to the building (HL Rev. Stat. 1969, eh. 38, par. 5-2). We
find there was sufficient evidence to support his eonvie-
tion.

The appellate court) determined that the trial eourt
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 eourt did not
consider sintlar 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 faet that the property was
insured for almost three times its initial cost and the eost
of subsequent repairs. Tle argues also that he was preju-
dieed by his counsel’s failure to introduce evidence of the
replacement cost of the building after presenting evidence
that insurance is ecaleulated on the basis of replacement
cost rather than aequisition cost. Tlowever, as the trial
court noted, the gist of the fraud was the burning of the
building to colleet insuranee proceeds regardless of the
replacement eost 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. 18

objection to references to prior fires, and there is no
indi¢ation in the reeord that the trial judge, sitting as the
trier of facet, improperly considered the prior statements of
one co-defendant as substantive evidenee against the other.
Under these cireumstanees there is no reason to deviate
from the sound presumption that the court ina beneh trial
relies only on proper evidenee in reaching a determination
on the merits (People vy. Gilbert (1977), 68 Th 2d 252,
258.59; People ve Peleqari (1968), 39 Th 2d 568, 574-75;
People vy. Delno (1966), 35 Th 2d 159, 162).

Because of ifs disposition of the ecanse, the appellate
court did not reach all the issues presented to it, but as
noted in Nefson v. Union Wire Rope Corp. (1964), 31 TL
21 69, 112-13, “it has frequently been indieated that
where this court aequires jurisdietion for any reason, it has
jurisdiction fo pass upon all questions, exeept those
requiring a weighing of the evidenee, proper to be passed
upon and disposed of in the ease. (Goodrich v. Spraque,
376 TN. 80; Bowman vy. Mlimois Central Railroad Co., WWM
2d 186.) Aside from considerations going to the avoidanee
of multiplicity of appeals, there are in our opinion unique
circumstances here which, as a matter of diseretion and
justice, impel us fo use our powers on review to the utmost
and to finally dispose of the ease”? These proceedings
arose out of a fire whieh oeeurred in 1969 for which the
defendants were indicted in 1978. 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, onee under her own name and onee under the
name of her common law husband. Moreover, the reeord
enables us to fully determine these matters. (County of
Cook v. Lloyd A. Fry Roofing Co. (1974), 59 TI. 2d 131,
138-39.) We shall therefore address these questions.

App. 19

Both Berland and Wolf ehallenge the competeney of
their retained trial counsel, After an examination of the
record in the instant ease in light of the applicable test, we
‘annot say that eounsel was incompetent. Te eondueted
discovery, sought fo suppress evidence, and vigorously
eross 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 ease. Defendants were entitled to competent, not
perfeet, counsel. People vo Murphy (1978), 72 Th 2d 421,
438,

Wolf arenes, on the basis of Brady v. Maryland (1968),
873 US. 88, 10 1, Md. 2d 215, 88° 8.Ct. 1194, that he was
denied a fair trial dne to the proseention’s failure to noti-
fy defense counsel that the witnesses Ms. Mayberry and Ms,
MeGowen are the same individual The two names ap-
peared ona 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 hushand’s name,
when she testified in the United States distriet eourt 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 acensed of due process
since the evidenee was material to his guilt. By econ
trast, in the instant ease 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 if 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. 20

surprise and afford an opportunity to combat false tes-
timony. (People vy, Steel (1972), 52 TM, 2d 442, 450.) In
the present ease, the defendant was afforded an oppor-
tunity 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 vo Aaurs (A976), 427 U.S. 97, 49 L. Ed, 2d
342, 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-
anee company’s corporate existence, courts may take ju-
dicial notice of its existence sinee if is a matter of publie
record. (See Department of Public Welfare v. Bohleber
(1961), 21 Tl. 2d 587, 598.) 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 indietment clearly
identified Ameriean Casualty Company as the insurance
company alleged to have been defrauded and enabled the
accused to prepare their defenses (People v. Dickerson
(1975), OF TL 2d 580, 582; People v. Grieco (1970), 44
Hl. 2a 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. 21

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 seetion 72 of the Civil Praetice Aet (TIL Rev.
Stat. 1975, eh. 110, par. 72) filed in the eireuit’ court
during the pendency of his direet appeal to the appellate
court, whieh was filed on September 27, 1974. The first
section 72 petition was filed on March 18, 1975; the see-
ond was filed on September 28, 1976, with a supplemen-
tal petition filed on Oetober 8, 1976. On motion of the
State, the trial eourt dismissed the first petition on July
18, 1975, on the ground that the issues raised were not
properly before the court in the seetion 72 petition, The
memorandum of orders ineluded in the reeord and the
notiee of appeal in the seeond section 72 petition indicate
that if was dismissed on February 14, 1977. Wolf prose-
ented separate appeals to the appellate court, which eon-
solidated them on its own motion on Mareh 2, 1978. This
court, on Mareh 21, 1978, allowed the State’s motion to
transfer 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 eoncern-
ing the points raised in Wolf's seetion 72 petitions when
the consolidated cases 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 econ-
sidered, Without deeiding the nature of the asserted right
to 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 virenit court properly dismissed the first seetion
72 petition. A section 72 proceeding is the forum in which
I

App. 22

‘to correet all errors of fact occurring in the proseeution
of a cause, unknown to the petitioner and court at the time
of trial, which, if then known, would have prevented the
judgment.”” (Ephraim vy. People (1958), 13° Ti. 2d) 456,
458; see also People vy. Minton (1972), 52 TI. 2d 239, 248.)
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 section 72 petition to ex-
amine them would be unwarranted. The trial court 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 it
would not have probably changed the result, The trial
court had also coneluded, 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 direct
appeal. Those exhibits contained police and fire depart-
ment reports of interviews with testifying and nontesti-
fying witnesses, transerihed statements and a deposition of
testifying and nontestifying witnesses, and the Federal
testimony of testifying witness Evelyn Mayberry. Varia-
tion between Ms. Mayberry’s testimony at trial and her
prior testimony in the United States distriet court was
raised on direet appeal in this court, The issue of whether
Wolf was bald and the defense’s failure to introduee 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 direct appeal.

App. 28

(People v. Jennings (1971), 48 Ll 2d 295, 299; People v.
Mamolella (1969), 42 Ul. 2d 69, 72; Hphraim vy. People
(1958), 13 Tk 2d 456, 460.) Points previously raised at
trial and other collateral proceedings cannot form the basis
for a section 72 petition. See Lphraim v. People (1958), 13
Ill. 2d 456, 459; Brunswick v. Mandel (1974), 59 Til. 2d
502, 504.

The petition argues that the State obtained Wolf’s econ-
viction through the suppression of evidence tending to
negate his guilt in violation of our Rule 412 (50 TIL 2d BR.
412). However, the issue of the State’s alleged suppression
of evidence and noncompliance with discovery, including
matters specifically raised in the seetion 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 alse brought to the at-
tention of the trial court in the post-trial proceedings.

.

Although a challenge to identification procedures was
raised and addressed in the post-trial proceedings and on
direct appeal, Wolf again raises the issue in his seetion 72
petition. Exhibit 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 Illinois Bureau of
Investigation agent, that witness Evelyn Mayberry and
Albert Kyles told him that they never gave a post-trial
statement to Wolf’s investigator and that he had never

App. 24

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 diseovering and raising these matters at
trial. (Glenn v. People (1956), 9 TI 2d 335, 340; see
People v. Collethe (W971), 48 Th 2d 185, 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 TI. 2d 516, O18; Kphraim v. People
(1958), 18 Tl 2d 456, 458; ef. Chapman vy. California
(1967), 886 U.S. 18, 17 L. Kd. 2d 705 82S. Ct. 824.) The
two testifying witnesses had seen We? | rior to the fire as
well as on the day of the fire, prov an adequate inde-
pendent basis for the in-court identin..¢ion, (See People
v. Williams (1975), 60 Th 2d 1, 10-11.) These exhibits
did not present a basis for section 72 relief,

The first petition argues that Wolf's convietion was the
result of perjured testimony and relies on the exhibits filed
to support the allegations. A section 72 petition ean pro-
vide a basis for relief from a judgment based on perjury.
(People v. Jennings (1971), 48 Tl. 2d 295, 298; People v.
Lewis (1961), 22 IL2d 68, 70-71.) Llowever, the trial court
did not err in dismissing the petitions sinee all the ineon-
sistencies in the witnesses’ statements charged in the peti-
tions as amounting to perjury were before the court in
the post-trial proceedings. 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. 25

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

Jennings (1971), 48 Tb2d gr 298-99; ef. Withers v.
People (A961), 25 TN. 2d 131, 185.) An examination of
the exhibits reveals no more than diserepaneies 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 indieate perjury. (See People vy. Strother
(1972), 53 Th 2d 95, 100-01; People v. Lagios (1968), 39
Hl. 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 seetion 72 proceedings (IIL.
Rev. Stat. 1975, eh. 110, par. 72(3); People vy. Colletti
(1971), 48 Hk 2d 185, 187.) The petition was filed on
September 23, 1976, and the supplement to the petition was
filed om Oetober 8, 1976, which was more than two years
after the judgment of convietion was entered and the sen
tence imposed on April 9, L974. The bar of the statute of
limitations is tolled only by legal disability, duress, or
fraudulent concealment of the grounds for relief. (IL Rev.
Stat. 1975, ch. 110, par. 72(3); People v. Colletti (1971), 48
Il. 2d 185, 187; Withers v. People (1961), 28 Ti. 2d 131,
133.) Although Wolf, in reply to the State’s motion to
dismiss, alleged fraudulent coneealment 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
conelude that the State fraudulently concealed evidence

App. 26

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 prosecutors
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 second
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 section 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-
tions, an examination of exhibits reveals no factual allega-
tions sufficient to sustain Wolf's charge of perjury. (See
People v. Jennings (1971), 48 Ill. 2d 295, 299.) The new
exhibits indicate only that the fire battalion chief and fre
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 direcet-
ly to the point of origin of the fire and the intensity of the
heat in light of the size of the rooms affected and the pres-
ence of damage not attributable to the point of greater

App. 27

intensity of heat. The fire inspector’s in-court testimony
did not contradict his written fire report. Thus the exhibits
failed 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 seetion 72 petitions are affirmed and the
petition for rehearing is denied.

Judgments affirmed;
rehearing denied.

App. 28

APPENDIX B

UNITED STATES OF AMERICA

State of Illinois,
Supreme Court—ss.

Order of the Supreme Court, together with a copy of
the opinion filed December 4, 1978, and supplemental
opinion filed February 20, 1979, upon denial of petitions
for rehearing.

Filed October 6, 1977.

In Witness Whereof, | have hereunto subseribed
my name and affixed the Seal of said court this
16th day of May 1979.

/s/ Clell L. Woods — (Clerk)
(SEAL) Supreme Court of the State of Illinois

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0219%3A1. Public record. Not legal advice.