People v. Rhodes , 2020 IL App (1st) 173119 ( 2021 )

Digitally signed by
Reporter of Decisions
Illinois Official Reports
Reason: I attest to the
accuracy and integrity
of this document
Date: 2021.03.25
Appellate Court 12:14:36 -05'00'
People v. Rhodes, 2020 IL App (1st) 173119Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KENNETH RHODES, Defendant-Appellant.
District & No. First District, Second Division
No. 1-17-3119
Filed September 29, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-3075; the
Review Hon. Alfredo Maldonado, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Carolyn R. Klarquist, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
David H. Iskowich, and Sharon Kanter, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE PUCINSKI delivered the judgment of the court, with
opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the
judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Kenneth Rhodes, was convicted of first degree murder
and was sentenced to life imprisonment. On appeal, defendant seeks reversal of his conviction
and the sentence imposed thereon, arguing that his trial attorneys labored under a per se
conflict of interest and that he was thus deprived of his constitutionally protected right to
conflict-free counsel. For the reasons explained herein, we affirm the judgment of the circuit
court.
¶2 BACKGROUND
¶3 On January 13, 2012, Pauline Betts-Bracy and Nathaniel Bracy were shot and killed in
their home. Defendant, Betts-Bracy’s brother, was subsequently arrested and charged with
multiple counts of first degree murder and attorneys from the Cook County Public Defender’s
Office were appointed to represent him. Assistant Public Defender (APD) Ed Koziboski first
appeared on behalf of defendant in March 2012. Over the years, he filed various pleadings and
litigated various pretrial motions on defendant’s behalf, including answers to discovery,
motions to exclude DNA and serology evidence, and motions in limine. On multiple occasions,
APD Koziboski was assisted by other APDs including APD William Bolan. On January 9,
2017, during the course of their representation of defendant and approximately six weeks
before the case was set for trial, APDs Koziboski and Bolan were present when defendant
purportedly struck a sheriff’s deputy while in custody, which led to their client being charged
with the offense of aggravated battery to a peace officer.
¶4 Thereafter, on March 20, 2017, APDs Koziboski and Bolan filed a motion seeking to
withdraw as defendant’s counsel. In the motion, they alleged that their continued
representation of defendant was impaired by a conflict of interest, citing their presence during
the alleged altercation between defendant and the sheriff’s deputy and their status as “potential
witnesses.” Specifically, they argued:
“A conflict of interest exists where the attorneys representing a client’s best interest in
[a] matter are compelled to bear witness against that client in another matter, and
potentially testify to his detriment. Illinois Rules of Professional Conduct of 2010
address the issue of attorneys playing a dual role as advocate and witness and provide
that ‘Combining the roles of advocate and witness can prejudice the tribunal and the
opposing party and can also involve a conflict of interest between the lawyer and
client.’ ” 1
Rule 3.7 of the Illinois Rules of Professional Conduct of 2010 addresses the issue of a lawyer as a
1
witness and provides as follows:
“(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary
witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
-2-
See Ill. R. Prof’l Conduct (2010) R. 3.7 cmt. 1 (eff. Jan. 1, 2010). Although the motion set
forth the factual basis for the purported conflict of interest, it did not specify whether APDs
Koziboski and Bolan believed their continued representation of defendant amounted to an
actual conflict of interest or a per se conflict of interest.
¶5 The State, in turn, filed a response opposing the motion to withdraw. In its response, the
State argued that the mere possibility that attorneys Koziboski and Bolan could be called as
witnesses in a separate criminal proceeding did not support a finding that their continued
representation of defendant in his upcoming murder trial was impaired by an actual or per se
conflict of interest. Moreover, the State asserted that Rule 3.7 of the Illinois Rules of
Professional Conduct of 2010 (Ill. R. Prof’l Conduct (2010) R. 3.7 (eff. Jan. 1, 2010)) was
inapplicable because it “does not address situations where a defense attorney may be called to
testify in another matter, only where an attorney may be a necessary witness contemporaneous
with his representation.” (Emphasis in original.) Accordingly, the State urged the circuit court
to deny the motion to withdraw.
¶6 The court presided over a hearing on the motion, and after reviewing the parties’ filings
and hearing the arguments made in support of their respective filings, the court denied
defendant’s attorneys’ motion to withdraw. In doing so, the court found that the mere fact that
attorneys Koziboski and Bolan had given interviews and were potential witnesses against
defendant in a separate unelected criminal matter did not give rise to an actual or per se conflict
of interest. The court reasoned:
“Certainly I don’t see that—the fact that Mr. Bolan and Mr. Koziboski were simply
present for these alleged actions [against the sheriff’s deputy] by [defendant] doesn’t
in any way create an undivided loyalty by them to defendant, nor does the fact that they
would represent [defendant] in this murder case in any way have a possibility of leading
to a reversal or even another factor, just the appearance of impropriety here.
I don’t see that Rule 3.7 of the Professional Rules of Conduct [is] applicable in this
case because I think that rule is—deals with contemporaneous representation and
testifying or being a witness in the same matter, not a different matter.
That’s what the unelected matter is. It is a completely distinct and separate matter.
In fact, I think that having the defense counsel removed from this case would lead to a
very real and actual harm to [defendant]. The defense has been on this case since the
beginning of this case. This matter is on the eve of trial, and there has been a substantial
amount of work done by defense counsel here.
I don’t see that there is a potential conflict. The fact that, again, that you were named
in a report is just too speculative. There simply is not a potential conflict here that in
any way requires defense counsel to be disqualified in this matter. Accordingly, the
Defense’s motion is denied.”
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is
likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.” Ill. R.
Prof’l Conduct (2010) R. 3.7 (eff. Jan. 1, 2010).
-3-
¶7 Following the court’s denial of defense counsels’ motion to withdraw, the cause proceeded
to trial. 2 At trial, the State called various witnesses who testified that defendant had been
engaged in an ongoing dispute with his sister over ownership of a condominium left to them
by their deceased mother. Defendant had made several threats to kill his sister as a result of
that dispute and had made a similar threat the morning of the murders when he visited the
condo unannounced. Defendant’s unannounced visit led his sister to call the police, and Betts-
Bracy informed her daughter that she would be seeking an order of protection against her
brother. The State also presented ballistics evidence that the bullets recovered from the crime
scene and the victims’ bodies were fired from a .357 Magnum revolver, a gun linked to
defendant. In addition, gunshot residue was found on defendant’s jacket and his sister’s DNA
and blood was detected on his clothing. Defendant’s attorneys cross-examined the State’s
witnesses and called their own forensic DNA expert to testify. Defendant elected not to testify.
¶8 Ultimately, after hearing the aforementioned evidence, the jury returned with a verdict
finding defendant guilty of the first degree murder of his sister and brother-in-law. At the
sentencing hearing that followed, the court sentenced defendant to a mandatory term of life
imprisonment. This appeal followed.
¶9 ANALYSIS
¶ 10 On appeal, defendant contends that the circuit court violated his right to conflict-free
counsel when it denied his attorneys’ pretrial motion to withdraw as his trial counsel because
they were potential witnesses against him in a separate pending criminal case.
¶ 11 The State responds that the circuit court properly denied defendant’s attorneys’ motion to
withdraw because there was no per se conflict of interest.
¶ 12 A criminal defendant’s constitutional right to effective assistance of counsel encompasses
the right to conflict-free representation. People v. Green, 2020 IL 125005, ¶ 20; People v.
Peterson, 2017 IL 120331, ¶ 102. “Conflict-free representation means ‘assistance by an
attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent
obligations.’ ” Green, 2020 IL 125005, ¶ 20 (quoting People v. Spreitzer, 123 Ill. 2d 1, 13-14
(1988)). Illinois courts have recognized two categories of conflict of interest: actual conflicts
of interest and per se conflicts of interest. Id.; People v. Fields, 2012 IL 112438, ¶ 17.
¶ 13 An actual conflict of interest “generally, if not exclusively, involves joint or multiple
representation.” People v. Austin M., 2012 IL 111194, ¶ 82. Where there is an actual conflict
of interest, a defendant seeking a new trial need not establish that the conflict actually
contributed to the conviction; rather, he must simply show that the conflict adversely affected
his attorney’s trial performance. Id. That is, the defendant “must point to some specific defect
in his counsel’s strategy, tactics, or decision[-]making attributable to the alleged [actual]
conflict of interest.” Id.¶ 14 In contrast, a “per se conflict of interest exists where certain facts about a defense
attorney’s status, by themselves, engender a disabling conflict,” such as when the “attorney
has a tie to a person or entity that would benefit from an unfavorable verdict for the defendant.”
Fields, 2012 IL 112438, ¶ 17. Courts have identified three situations where a per se conflict
2
Because defendant does not raise any argument concerning the sufficiency of the evidence or
contest any evidentiary rulings, we elect not to detail all the evidence presented at trial; rather, we will
simply provide a brief summary of that evidence.
-4-
will be found to exist: (1) where defense counsel has a prior or contemporaneous relationship
with a victim, prosecution, or an entity assisting the prosecution; (2) where defense counsel
contemporaneously represents a prosecution witness; and (3) where defense counsel was a
former prosecutor who had been personally involved with the prior prosecution of the
defendant. Green, 2020 IL 125005, ¶ 24. The justification for recognizing these three
categories as per se conflicts of interests is that “in each situation, the defense counsel’s
association or tie to the victim, the prosecution, or a prosecution witness may have subtle or
subliminal effects on counsel’s performance that are difficult to detect and demonstrate.”
Peterson, 2017 IL 120331, ¶ 103. Because the “very existence of” a per se conflict could
“inadvertently affect counsel’s performance in ways difficult to detect and demonstrate” and
could “lead to the possibility that the attorney would be unnecessarily subject to charges that
his representation was less than faithful,” there is “no need to show that the attorney’s actual
performance was affected by existence of the [per se] conflict.” People v. Holmes, 141 Ill. 2d
204, 219 (1990). Accordingly, unless the defendant waives his right to conflict-free
representation, the fact that his attorney labored under a per se conflict of interest is automatic
grounds for reversal. Fields, 2012 IL 112438, ¶ 18. Ultimately, “[w]hen deciding whether a
per se conflict of interest exists, the reviewing court should make a ‘realistic appraisal of
defense counsel’s professional relationship to someone other than the defendant under the
circumstances of each case.’ ” Austin M., 2012 IL 111194, ¶ 83 (quoting People v. Daly, 341
Ill. App. 3d 372, 376 (2003)). Where the underlying facts are not in dispute, the issue of
whether a per se conflict of interest exists is a legal question, which is subject to de novo
review. Fields, 2012 IL 112438, ¶ 19.
¶ 15 Here, defendant does not argue that his trial attorneys’ representation was impaired by an
actual conflict of interest; rather, citing the first recognized category of per se conflicts, he
submits that his attorneys’ statuses as potential witnesses against him in a separate pending
criminal matter constituted “an ongoing ‘contemporaneous association’ with the State,” and
thus amounted to a per se conflict of interest.
¶ 16 Courts that have found a per se conflict of interest based on a defense attorney’s
“contemporaneous association with the prosecution” have done so in limited situations, such
as where the attorney has employment ties to a prosecuting entity at the same time that the
attorney is representing the defendant. See, e.g., People v. Washington, 101 Ill. 2d 104, 112-
13 (1984) (finding a per se conflict of interest where defense counsel also served as a part-time
prosecutor for the same municipality that was prosecuting the defendant, reasoning that the
attorney’s duty of undivided loyalty to the defendant could possibly be affected by his
contemporaneous conflicting obligations as both defense attorney and prosecutor); People v.
Fife, 76 Ill. 2d 418, 424-25 (1979) (finding a per se conflict of interest where defense counsel
also served as a part-time Assistant Attorney General where he handled unemployment
compensation cases for the State, reasoning that defense counsel’s performance at the
defendant’s criminal trial could potentially be “subliminal[ly]” affected by his
contemporaneous association with the Attorney General’s office). Here, there is no dispute that
neither APD Koziboski nor APD Bolan had any employment ties to the state’s attorney’s office
at the time that they represented defendant. Moreover, defendant fails to cite any case in which
a court has found that the mere possibility that a defense attorney could be called as a witness
to testify against his or her client in a separate unrelated criminal prosecution constituted a
“contemporaneous association” with the prosecution and a per se conflict of interest. Indeed,
-5-
we fail to see how the mere possibility that defendant’s trial attorneys could potentially be
called to testify as civilian witnesses against defendant in a future unrelated criminal
proceeding could impact their professional obligations and loyalty to defendant during their
representation of him during his murder trial. Accordingly, we agree with the circuit court’s
conclusion that no per se conflict of interest exited in this case.
¶ 17 In so finding, we are unpersuaded by defendant’s reliance on People v. James, 362 Ill. App.
3d 250 (2005). In that case, the defendant spit on and struck his attorney in open court during
the State’s opening argument of his murder trial, which resulted in a mistrial and charges of
aggravated battery being filed against him. Id. at 252. His attorney was then provided with an
opportunity to withdraw as the defendant’s attorney but declined, informing the court that he
bore no ill will toward his client and indicated that he believed that the defendant had only
struck him to obtain a mistrial. Id. at 252-53 Counsel further informed the court that he did not
want the State to file any additional charges against his client and that he would not voluntarily
testify as a witness against him. Id. at 253. The court ultimately permitted defense counsel to
remain the defendant’s attorney over the State’s objection, and the cause proceeded to a new
trial where the defendant was ultimately convicted of murder. Id. On appeal, the defendant
sought reversal of his murder conviction, arguing that his attorney labored under a per se
conflict of interest due to the defendant’s prior attack on him. Id.
¶ 18 The Fourth District, however, disagreed, finding that the case did not fall within one of the
three recognized categories of per se conflicts of interests. Id. at 254. In addition, the court
noted that defendant’s attorney indicated that he bore no ill will toward his client and that he
would not be a voluntary witness against him; rather, he believed the defendant’s actions
stemmed from his desire to obtain a mistrial. Id. The court likened the case to situations in
which courts have refused to find a per se conflict when defendants file lawsuits or Attorney
Registration and Disciplinary Commission complaints against their attorneys, reasoning that
to find a per se conflict of interest exists in such situations would simply encourage other
defendants to engage in similar conduct to obtain new attorneys and delay the State from trying
them. Id. at 255. The court further found that the fact that aggravated battery charges had been
brought against the defendant did not alter its analysis, stating “the State’s pending charges
may lead to a conflict of interest but is not a conflict per se.” Id.
¶ 19 Defendant suggests that a different result should be obtained here because his attorneys,
unlike the attorney in James, did express misgivings about continuing their representation by
filing a motion to withdraw as trial counsel. Although this factual distinction exists, we do not
find that it warrants a contrary result. The Fourth District’s holding in James was not based on
the defense attorney’s subjective feelings about his ability to represent his client and the fact
that he had not filed a motion to withdraw as the defendant’s attorney; rather, it was primarily
based on its conclusion that the defendant’s conduct, which resulted in the possibility that his
attorney could potentially be called to provide testimony as the victim of the defendant’s
battery, did not fall within the three recognized categories in which a per se conflict of interest
has been found to exist. We agree with the Fourth District’s conclusion as well as its concern
that recognizing a per se conflict in such circumstances could encourage defendants to engage
in similar conduct and act violently either toward or in front of their attorneys in an effort to
delay their prosecutions.
¶ 20 Accordingly, because we find that defendant’s attorneys’ statuses as potential witnesses in
a possible separate criminal prosecution against their client did not constitute a
-6-
“contemporaneous association” with the State at the time of defendant’s murder trial, we
conclude that defendant’s attorneys did not labor under a per se conflict of interest and that the
circuit court did not err in denying their motion to withdraw.
¶ 21 CONCLUSION
¶ 22 The judgment of the circuit court is affirmed.
¶ 23 Affirmed.
-7-