No. 3--01--0981

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

PRESIDING JUSTICE SLATER delivered the opinion of the court:

The defendant, Samuel R. Scott, was convicted of unlawfuldelivery of a controlled substance in a drug-free zone. 720 ILCS570/401(d), 407(b)(2) (West 1996). The trial court sentenced himto 12 years' imprisonment. Defendant filed a postconvictionpetition which was dismissed by the trial court. Defendantappeals, contending that: (1) he was denied effective assistanceof counsel because his attorney was laboring under a conflict ofinterest at his preliminary hearing; and (2) the admission of alab report at trial resulted in a violation of his right toconfront the witnesses against him. We affirm.

Attorney F. Michael Meersman was appointed to representdefendant after he was charged with unlawful delivery of acontrolled substance in a drug-free zone. At the preliminaryhearing, Officer John Hitchcock testified that he had observeddefendant participate in the sale of cocaine at a public housingagency apartment occupied by Paul Brinkman. On crossexamination, Hitchcock testified that Brinkman had "deniedeverything" related to the alleged transaction.

The court found probable cause for the charge. Meersmanthen notified the court that he had also been appointed torepresent Paul Brinkman, but he was unsure if that matter wasrelated to the incident involving defendant.

Meersman subsequently filed a motion to withdraw asdefendant's attorney, asserting that a conflict of interestexisted because he was appointed to represent Brinkman on chargesrelated to this transaction, and Brinkman's account of the eventswas contradictory to defendant's version. The motion to withdrawwas granted and another attorney was appointed to representdefendant.

At trial, the testimony showed that Hitchcock was working asan undercover officer when he spoke to defendant and expressed aninterest in buying cocaine. Defendant led Hitchcock to anapartment in a public housing complex, knocked on the door andspoke with Paul Brinkman. Brinkman testified that defendantasked him for "rock cocaine." Brinkman went to the rear of theapartment and then returned and placed a "rock" on the kitchenstove. Defendant picked up the rock. Hitchcock handed defendant$20. Defendant then handed the $20 to Brinkman and handed therock to Hitchcock.

The State also introduced a lab report indicating that thesubstance weighed 0.1 gram and tested positive for the presenceof cocaine. Defense counsel did not object to the admission ofthe lab report. The record also shows defendant's attorneyagreed to stipulate to the contents of the report during a motionhearing held immediately prior to the trial.

The jury found defendant guilty of the offense, and thetrial court sentenced him to 12 years' imprisonment. This courtaffirmed the judgment of the trial court on direct appeal. People v. Scott, No. 3--97--0657 (1999) (unpublished order underSupreme Court Rule 23). Defendant then filed a postconvictionpetition, which was dismissed by the trial court.

On appeal, defendant contends that he was denied effectiveassistance of counsel because his attorney labored under either aper se or actual conflict of interest at the preliminary hearing.

A per se conflict of interest exists if a defendant'sattorney has a professional relationship with a State's witnesscontemporaneous with counsel's representation of the defendant. People v. Flores, 128 Ill. 2d 66, 538 N.E.2d 481 (1989); Peoplev. Hernandez, 246 Ill. App. 3d 243, 615 N.E.2d 843 (1993). If aper se conflict exists, a defendant is not required to show hewas prejudiced by the representation to obtain a reversal of hisconviction. People v. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30(1988).

In contrast, a defendant who alleges an actual conflict ofinterest generally must show that the conflict affected hisattorney's performance. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30;Hernandez, 246 Ill. App. 3d 243, 615 N.E.2d 843. Actualconflicts of interest usually involve joint or multiplerepresentation of co-defendants. Spreitzer, 123 Ill. 2d 1, 525N.E.2d 30. If defense counsel brings a potential conflict, suchas multiple representation of co-defendants, to the attention ofthe trial court at an early stage, the court has a duty to eitherappoint separate counsel or to ascertain if the risk of conflictis too remote to warrant separate counsel. Spreitzer, 123 Ill.2d 1, 525 N.E.2d 30. Reversal of a conviction for failure of thetrial court to alleviate a potential conflict of interest at anearly stage does not require a showing of prejudice. Spreitzer,123 Ill. 2d 1, 525 N.E.2d 30.

Initially, we find that a per se conflict of interest didnot exist. Although Meersman was appointed to represent Brinkmanprior to defendant's preliminary hearing, the record shows thatMeersman had not yet engaged in the representation of Brinkman atthat time. Meersman did not meet with Brinkman prior todefendant's preliminary hearing. At defendant's hearing,Meersman was not aware of the nature of the charges againstBrinkman, or whether those charges were related to the chargesagainst defendant. Moreover, Meersman immediately withdrew fromdefendant's case after he met with Brinkman and discovered therewas a conflict of interest. Based on these circumstances, wefind that a per se conflict of interest did not exist becauseMeersman was not representing Brinkman at the time he appeared atdefendant's preliminary hearing.

We also find that no actual conflict of interest existed. Meersman informed the trial court of the possibility of aconflict at an early stage in the proceedings. Shortlythereafter, Meersman discovered that Brinkman's statement of theevents conflicted with defendant's account. Upon discovering theconflict, Meersman immediately moved to withdraw fromrepresenting defendant. The trial court granted Meersman'smotion and appointed a new attorney for defendant. Therefore,the trial court remedied the conflict at an early stage of theproceedings.

Further, defendant has not shown that the conflict affectedMeersman's performance during the preliminary hearing. Again,Meersman was not aware that he was appointed to representBrinkman on charges related to this transaction until afterdefendant's preliminary hearing was completed. Additionally, wenote that Meersman elicited that Brinkman had "denied everything"related to the alleged sale of cocaine. This testimony wasbeneficial to defendant because Brinkman was apparently the onlyperson other than Hitchcock who could verify that the transactionoccurred. Accordingly, we conclude that defendant did not showthat the conflict affected Meersman's performance, and defendantis not entitled to relief on his claim.

Defendant also contends that his constitutional right toconfront the witnesses against him was violated because the labreport was admitted into evidence pursuant to a statute that wassubsequently found unconstitutional.

We recognize our supreme court has held that section 115--15(c) of the Code of Criminal Procedure of 1963 (725 ILCS 115--15(c)), which allows for admission of lab reports without thetestimony of the preparer when the defendant fails to timelydemand such testimony, violates a defendant's constitutionalright to confront the witnesses against him. People v.McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470 (2000). However, thelab report was not admitted under section 115--15(c) in thiscase. Rather, defense counsel agreed to stipulate to thecontents of the report.

In People v. Campbell, 208 Ill. 2d 203, 220-21, 802 N.E.2d1205, 1215 (2003), our supreme court held that "counsel in acriminal case may waive his client's sixth amendment right ofconfrontation by stipulating to the admission of evidence as longas the defendant does not object to or dissent from hisattorney's decision, and where the decision to stipulate is amatter of legitimate trial tactics or prudent trial strategy." In this case, after indicating that he was not objecting to thetest results, defense counsel stated that he had advised thedefendant about "the different weights and calling the chemist"and that he would talk to the defendant again. There is nothingin the record indicating that defendant objected at any time tocounsel's decision to stipulate to the lab report. With regardto whether the stipulation was a matter of strategy, defensecounsel stated that the weight and nature of the drugs were notat issue. Defendant testified that he was either at the ElksClub in Rock Island playing pool or waiting for a bus at the timeof the alleged drug sale. Given this alibi defense, there was noreason to contest the lab report. Doing so could have confusedthe jury and distracted them from defendant's defense. We find,therefore, that the requirements of Campbell have been satisfiedand defendant was not denied his sixth amendment right ofconfrontation.

We recognize that our decision is contrary to that reachedby a different panel of this court in People v. Phillips, 352Ill. App. 3d 867, 817 N.E.2d 566 (2004), which held that astipulation by counsel requires an affirmative showing orindication in the record that the defendant did not object to ordissent from the decision to stipulate. This "affirmativeshowing" requires, according to Phillips, evidence that thedefendant "was advised of the right to confront witnesses and ofthe nature and legal impact of waiving that right through theproposed stipulation, and either concurred with or objected toit." Phillips, 352 Ill. App. 3d at 871, 817 N.E.2d at 571. Webelieve that Phillips misinterpreted Campbell when it imposed arequirement that a defendant must personally waive hisconfrontation rights. Phillips determined that a stipulationrequires a voluntary, knowing and intelligent waiver based on thefollowing language from People v. McClanahan:

"Unlike section 115--15, thesestipulations properly require a defendant tomake a voluntary, knowing, and intelligentdecision whether he wishes to waive his rightto confront the preparer of the report." Phillips, 352 Ill. App. 3d at 871, 817 N.E.2dat 570, quoting McClanahan, 191 Ill. 2d at137-38, 729 N.E.2d at 478 (2000).

That very same language, however, was quoted in Campbell,after which the supreme court stated:

"Defendant argues that based upon theforegoing language, it is clear that anywaiver of the right to confrontation must bea knowing waiver made by the defendantpersonally.

We decline to read McClanahan sobroadly. Contrary to defendant'sinterpretation of McClanahan, this court hasnever held that only a defendant can waivehis sixth amendment right of confrontation." Campbell, 208 Ill. 2d at 212, 802 N.E.2d at1210.

Thus Campbell explicitly rejected the rationale employed bythe Phillips court. Under Campbell, no sixth amendment violationoccurs when a defendant does not object to or dissent from hisattorney's decision to stipulate where that decision is a matterof legitimate trial tactics. Contrary to Phillips, we believethat Campbell indicates that the record need not establish thedefendant was informed of and explicitly waived his confrontationrights.

For the reasons stated above, the judgment of the circuitcourt of Rock Island County is affirmed.

Affirmed.

BARRY, J., concurs.

The decision in Phillips relied on the Supreme Court'sdecision in People v. Campbell, 208 Ill. 2d 203, 802 N.E.2d 1205(2003), in which the court held that "counsel in a criminal casemay waive his client's sixth amendment right of confrontation bystipulating to the admission of evidence as long as the defendantdoes not object to or dissent from the attorney's decision, andwhere the decision to stipulate is a matter of legitimate trialtactics or prudent trial strategy." Campbell, 208 Ill. 2d at220-21, 802 N.E.2d at 1215

We considered this principle in light of the SupremeCourt's statement, in People v. McClanahan, 191 Ill. 2d 127, 729N.E.2d 470 (2000), that the "[w]aiver of a constitutional rightis valid only if it is clearly established that there was 'anintentional relinquishment or abandonment of a known right.'" andthat "such waivers must not only be voluntary, but must be'knowing, intelligent acts done with sufficient awareness of therelevant circumstances and likely consequences.'" McClanahan, 191Ill. 2d at 137, 729 N.E.2d at 476.

We concluded from this language that there must be someevidence that the defendant understood the right that was beinggiven up by defense counsel's stipulation. Although Campbellholds that defense counsel may stipulate in the absence of thedefendant's objection, that lack of objection is meaningless ifthe defendant does not understand the consequences of thestipulation or is not given a reasonable chance to object. McClanahan, as well as the plain language of both the Federal andstate constitutional confrontation guarantees, make clear thatthe right to confront witnesses is a right personal to thedefendant. As Campbell illustrates, defense counsel may beauthorized to exercise this right on defendant's behalf.Nevertheless, the right must be knowingly and intelligentlywaived. Absent any evidence on the record that the defendant wasaware of the power of counsel to stipulate or the possibleconsequences of stipulation, but nevertheless did not object tothe stipulation, we could not find that the defendant's waiver ofthat right was knowing and intelligent.

According to the majority in this case, Phillips was wronglydecided. The majority argues that the decision in Phillipsmisinterpreted Campbell by requiring affirmative evidence of thedefendant's failure to object to the stipulation. The majoritycharacterizes this as the same rationale rejected by Campbell. Ido not agree with this evaluation.

Campbell rejected the notion that a defendant mustexplicitly waive the right to confrontation in order for astipulation to be constitutionally proper. Phillips is notinconsistent with that holding. Despite the majority'scharacterization of the decision, Phillips does not require anexplicit waiver of the right to confrontation. What it doesrequire is some affirmative showing on the record that thestipulation and its meaning and possible effects were brought tothe attention of the defendant by counsel. As I have alreadystated, the lack of an objection is meaningless if the defendantdoes not understand what is going on.

It is, then, not accurate to state, as does the majority,that the Phillips decision requires that the defendant explicitlywaive his confrontation rights. Rather, it only requires thatthere be a showing on the record that the defendant had theopportunity and understanding necessary to assert them, if he orshe so chose. This is not a conclusion that is contrary toCampbell, as the majority asserts, but rather is the approachthat best incorporates the principles of Campbell, McClanahan,and the constitutional guarantee of the right to confrontation. Therefore, because I disagree with the majority's interpretationof Phillips and its application of Campbell to this case, Irespectfully dissent.