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Docket No. 93806-Agenda 3-September 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JESUS
FIDEL MORALES, Appellee.

Opinion filed April 1, 2004.

JUSTICE GARMAN delivered the opinion of the court:

After a jury trial, the defendant, Jesus Fidel Morales, was convictedof first degree murder, solicitation to commit murder for hire, andconspiracy to commit murder in connection with the shooting death ofKedric Bell in Chicago on January 16, 1995. The appellate court reversedthe conviction and remanded for a new trial on the ground that defensecounsel labored under a per se conflict of interest that defendant did notwaive. 329 Ill. App. 3d 97. We granted the State's petition for leave toappeal pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315). Forreasons that follow, we now reverse the judgment of the appellate court.

I. BACKGROUND

During 1994 defendant distributed large quantities of cocaine inChicago and other cities in the Midwest. Jorge Hernandez wasdefendant's superior in the drug distribution organization. He obtained thecocaine from Colombian sources and supplied it to defendant. Hernandezwas also defendant's "brother-in-law" because Hernandez's sister, OlgaMedina, was defendant's girlfriend or "common law wife."

Early in 1995, defendant was unable to pay approximately $200,000he owed to Hernandez for drugs previously supplied. Hernandezthreatened defendant and sent a courier to Chicago to collect. Defendantarranged for an extension of time and the courier left. Meanwhile,defendant asked an associate, Alexis Paredero, to look into hiringsomeone to kill Hernandez's next courier. Defendant planned to make itappear that he had paid the debt but that the courier had later beenrobbed and killed by persons unknown. Paredero recruited a gangmember, Malcolm "Prince" Ortiz, who agreed to commit the murder for$10,000. When Kedric Bell arrived in Chicago to collect on behalf ofHernandez, defendant told Paredero that it would be necessary to goahead with the murder.

On January 15, 1995, Paredero set up a meeting between defendantand Ortiz, during which they agreed on the site of the killing, the weapon,payment of the fee, and other details. Later that evening, Paredero pickedup Bell, who had been told that he would now be paid. Instead, Parederodelivered Bell to the murder site, where Ortiz and an associate, posing aspolice officers, pretended to arrest Bell and Paredero. Ortiz frisked Bell,took his pager, and then shot him to death.

Hernandez did not testify at trial. Paredero testified at length abouthow defendant conceived, helped plan, and paid for the murder. The Statealso introduced into evidence a 13-page written statement signed bydefendant that corroborated Paredero's testimony. Other witnessestestified concerning defendant's drug dealing, Hernandez's role assupplier, Kedric Bell's reason for coming to Chicago, and statementsmade by defendant before and after the murder. At the sentencing hearing,the State introduced a letter written by Hernandez in September of 1995to a purported member of a Colombian drug cartel stating that defendantand Olga Medina would take over Hernandez's drug operation whileHernandez was in prison and that the Colombians should deal with themjust as they had dealt with Hernandez.

The question before us arises because defendant's retained counsel,Michael Blacker of Miami, represented Hernandez in Florida inconnection with federal drug charges at same time he representeddefendant at trial in this case. In open court during a pretrial hearing ondefendant's motion to suppress, in the presence of defendant and Blacker,Assistant State's Attorney David Kelley apprised the court of Blacker'srepresentation of Hernandez, of the fact that Hernandez was a potentialwitness for the State, and of the potential conflict of interest that resultedfrom those facts. At Kelley's request, the court asked defendant whetherhe understood what the assistant State's Attorney had just said andwhether, in light of the possible conflict, he wished to continue withBlacker as his counsel. Defendant answered the court's questionsaffirmatively. The court accepted defendant's purported waiver of theconflict without further inquiry. Blacker remained silent throughout thecolloquy.

No statement by Hernandez was introduced into evidence againstdefendant at trial. At the sentencing phase the State introduced parts of aletter that Hernandez wrote from jail to a purported member of aColombian drug cartel, in which he stated that defendant and Olga Medinawould take over Hernandez's drug business while Hernandez was inprison. Hernandez asked that the Colombians deal with defendant just asthey had dealt with him. Attorney Blacker attempted to discredit the letterby introducing evidence that Hernandez was mentally unstable.

The posttrial motions that Blacker filed on behalf of defendant did notmention conflict of interest or ineffective assistance of counsel. Defendantclaimed on appeal that Blacker's contemporaneous representation ofHernandez created a conflict of interest that worked to deprive him of theeffective assistance of counsel in violation of the sixth amendment (U.S.Const., amend. VI). The appellate court reversed defendant's convictionon that basis. 329 Ill. App. 3d 97.

II. ANALYSIS

A

We review de novo the legal question whether the undisputed factsof record present a per se conflict. See People v. Miller, 199 Ill. 2d 541,545 (2002). A criminal defendant's sixth amendment right to effectiveassistance of counsel includes the right to conflict-free representation.People v. Washington, 101 Ill. 2d 104, 110 (1984). In People v.Spreitzer, 123 Ill. 2d 1, 14-19 (1988), we clarified the framework fordeciding whether defense counsel's conflict of interest violates the sixthamendment. Under Spreitzer, we must first decide whether there was aper se conflict of interest. If there was a per se conflict, "there is no needto show that the attorney's actual performance was in any way affectedby the existence of the conflict." Spreitzer, 123 Ill. 2d at 15. That is, aper se conflict is grounds for reversal unless the defendant waived his rightto conflict free counsel. Spreitzer, 123 Ill. 2d at 17. We refer to this ruleof automatic reversal as the "per se rule."

We have found a per se conflict when defense counsel had acontemporaneous relationship with the victim, the prosecution, or an entityassisting the prosecution. People v. Lawson, 163 Ill. 2d 187, 211 (1994)(collecting cases). We have also found a per se conflict when defensecounsel contemporaneously represented a prosecution witness. People v.Thomas, 131 Ill. 2d 104, 111 (1989). Finally, we have found a per seconflict when defense counsel was a former prosecutor who had beenpersonally involved in the prosecution of the defendant. Lawson, 163 Ill.2d at 217-18.

This case most closely resembles the cases in which defense counselcontemporaneously represented a prosecution witness, becauseHernandez was a potential witness for the State. It is undisputed thatBlacker had an attorney-client relationship with Hernandez while herepresented defendant. The question becomes whether Hernandez'srelationship to the case triggers the per se rule. Spreitzer provides therule that answers this question: A per se conflict is one in which "factsabout a defense attorney's status *** engender, by themselves, adisabling conflict." (Emphasis in original.) Spreitzer, 123 Ill. 2d at 14. Inthis case, Hernandez was a potential witness and his out-of-courtstatements about defendant in a letter were admitted into evidence atsentencing. However, the fact remains that he was never a witness. Thusdefense counsel never assumed the status of attorney for a prosecutionwitness. We therefore hold that attorney Blacker's simultaneousrepresentation of Hernandez and defendant did not constitute a per seconflict of interest.

Defendant urges us to disregard Hernandez's status as merely apotential witness and to agree with the appellate court that it is "evidentthat Hernandez was a person who could likely benefit from an unfavorableverdict for defendant." See 329 Ill. App. 3d at 108. In this record,however, we find no basis for concluding that Hernandez stood to gainfrom defendant's conviction. The evidence in the record about therelationship between Hernandez and the defendant is speculative at bestabout where Hernandez's interests lay during the time Blacker representeddefendant. For example, the letter that Hernandez wrote to a purportedmember of a Colombian drug cartel indicates that at the time the letter waswritten, around nine months after the murder, Hernandez still trusteddefendant enough to put him in charge of Hernandez's drug operation. Atanother point the record shows that witnesses would testify thatHernandez stated that defendant killed the victim Bell, who wasHernandez's courier. The record does not tell us how to reconcileHernandez's expressed trust in defendant with his statements thatdefendant killed Bell. In short, whether Hernandez wanted a particularresult from defendant's trial depends on unknown facts about Hernandez.Speculation that Hernandez might have stood to benefit from a verdictagainst defendant does not support application of the per se rule.

B

Defendant argues that, even if we find no per se conflict, he isnevertheless entitled to automatic reversal of his conviction without ashowing that his attorney's performance was affected by a conflict.Defendant relies on two premises. First, he argues that the trial court in thiscase had a duty under Holloway v. Arkansas either to appoint differentcounsel or to ascertain that the risk of a conflict was too remote to justifydoing so. See Spreitzer, 123 Ill. 2d at 18, citing Holloway v. Arkansas,435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178(1978). Second, he argues the trial court failed to fulfill its duty.

Defendant's argument fails because the premise that Hollowayapplies to this case is mistaken. In Spreitzer we said that Hollowayapplies when "counsel brings the potential conflict to the attention of thetrial court at an early stage." Spreitzer, 123 Ill. 2d at 18. In this casecounsel for the State, not defense counsel, informed the court at an earlystage about the possible conflict arising from Blacker's representation ofHernandez. Our reference to "counsel" in Spreitzer refers only to defensecounsel. In Holloway, counsel for three codefendants timely moved forappointment of separate counsel, alleging that his clients' interests wouldconflict at trial. The Supreme Court held that under those circumstancesthe trial judge must either appoint separate counsel or take adequate stepsto ascertain that the risk of conflict is too remote to warrant doing so.Holloway, 435 U.S. at 484, 55 L. Ed. 2d at 434, 98 S. Ct. at 1178. TheSupreme Court recently confirmed that Holloway's rule of automaticreversal applies only when a trial court fails to respond appropriately todefense counsel's objection to a representation. Mickens v. Taylor, 535U.S. 162, 168, 152 L. Ed. 2d 291, 302, 122 S. Ct. 1237, 1241-42(2001). In Spreitzer itself, and on at least two other occasions, wedeclined to apply Holloway on the ground that defense counsel did notraise the issue of a conflict. Spreitzer, 123 Ill. 2d at 22; People v.Kitchen, 159 Ill. 2d 1, 29-30 (1994); People v. Jones, 121 Ill. 2d 21,29 (1988). In this case, neither defendant nor defense counsel suggestedto the trial court that the representation of the defendant was actually orpotentially hampered by counsel's representation of Hernandez.Therefore, Holloway does not apply to this case.

C

Having determined that neither the per se rule nor Holloway appliesto this case, we must determine whether the defendant has shown anactual conflict of interest. Spreitzer, 123 Ill. 2d at 18, citing Cuyler v.Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 348, 100 S. Ct. 1708,1719 (1980). A defendant may establish a violation of his right to effectiveassistance of counsel by showing an actual conflict of interest thatadversely affected his counsel's performance. Sullivan, 446 U.S. at 350,64 L. Ed. 2d at 348, 100 S. Ct. at 1719. To do so, he must show "somespecific defect in his counsel's strategy, tactics, or decision makingattributable to [a] conflict." Spreitzer, 123 Ill. 2d at 18. Speculativeallegations and conclusory statements are not sufficient to establish that anactual conflict of interest affected counsel's performance. People v.Williams, 139 Ill. 2d 1, 12 (1990).

Defendant alleges that defense counsel Blacker's performance wasadversely affected by his conflicting duties to Hernandez in three ways.First, he alleges that Blacker was limited in his ability to cross-examineeach witness who testified about Hernandez. Two witnesses, OsvaldoMarcial and Roger Ross, testified that they knew Hernandez. Otherwitnesses did not know Hernandez but testified about statementsdefendant made that indicated that he owed Hernandez money and thatHernandez was using threats to pressure him to pay. Marcial testified thatwhile working for Hernandez he delivered 50 kilograms of cocaine todefendant in Chicago. Ross, who was Kedric Bell's cousin and anassociate of Hernandez, testified that Hernandez sent Kedric Bell toChicago. Ross testified further that, after learning that Bell had been shot,he called Hernandez, who gave him defendant's phone number. It is notapparent from the record that Blacker's duties to Hernandez adverselyaffected his cross-examination of the two witnesses who knew Hernandez.We fail to understand how Blacker's duties to Hernandez could haveaffected his cross-examination of the witnesses who could only testifyabout statements that the defendant made about Hernandez. Defendantfails to point to any specific defects in the cross-examination of anywitness. Defendant's bare allegation that Blacker's cross-examination wassomehow affected is insufficient.

Second, defendant asserts that Blacker was limited in his ability tocross-examine the DEA agent who testified concerning the letter thatHernandez wrote and which was entered into evidence against defendantat his sentencing hearing. Again, defendant offers nothing beyond the bareand legally insufficient claim that counsel's cross-examination wasadversely affected in some unspecified way.

Third, defendant asserts that Blacker was either unwilling or unableto disparage Hernandez during his opening statement and closingargument. However, Hernandez's credibility was not at issue at trialbecause he was not a witness, and defendant does not explain why itwould have made sense for Blacker to disparage Hernandez at thosetimes. We note that when it clearly did make sense for Blacker to attackHernandez's credibility-at the sentencing hearing, after the Stateintroduced into evidence parts of a letter that Hernandez wrote-Blackerdid so. We conclude that defendant has not shown any specific defect inBlacker's performance that we may attribute to conflicting duties thatBlacker owed to Hernandez.

Defendant also asserts that Blacker was limited in his ability to cross-examine one witness, Roger Ross, because Blacker owed conflictingduties to Ross. Before Ross testified, Blacker informed the trial court thathe had probably been privy to confidential information while consultingwith Ross about the possibility of representing him on appeal from thedenial of Ross' motion to suppress. The evidence that Ross had movedto suppress led to the arrest of both Ross and Hernandez and to Ross'eventual conviction on drug charges. The court ruled that Blacker couldnot cross-examine Ross about the facts and circumstances behind Ross'arrest and conviction. However, the record indicates that the basis for thecourt's ruling was the State's objection that the material was irrelevant, notthat Blacker had received confidences.

Defendant argues that Blacker's inability to cross-examine Ross leftthe jury to assume the truth of Ross' testimony that he was part ofHernandez's drug operation, that Hernandez sent Bell to Chicago tocollect a debt, and that Hernandez gave him the defendant's name andphone number after Bell was killed. Defendant does not explain howcross-examination about the circumstances of Ross' arrest could possiblyhave been used to attack Ross' testimony. Speculation that cross-examination might have been useful somehow would not be enough toestablish a defect in Blacker's performance. Thus even if we assumed,contrary to what the record shows, that it was Blacker's conflicting dutiesto Ross that limited his cross-examination, there is no reason to think thatthe limitation adversely affected Blacker's performance.

Based on the foregoing, we conclude that the defendant has notestablished that defense counsel labored under an actual conflict of interestthat adversely affected his performance.

III. CONCLUSION

Defendant has not shown that his sixth amendment right to theeffective assistance of counsel was violated due to his trial counsel'sconflict of interest. He has established neither that counsel's representationof Hernandez constituted a per se conflict of interest, nor that counsel'sperformance was adversely affected by an actual conflict of interest. Theappellate court, having reversed defendant's conviction and remanded fora new trial, did not address certain claims defendant raised. Those claimsare not before us. We therefore reverse the appellate court's judgmentand remand this cause to the appellate court for consideration of those ofdefendant's claims that have not been decided.

.

Reversed and remanded.

JUSTICE KILBRIDE, specially concurring:

I concur in the majority's decision but write separately because,although I agree with the result reached by the majority, I disagree withthe majority's reliance on a conflict of interest analysis. The majorityshould have decided this case on the waiver issue.

The majority concludes that to constitute a per se conflict, it is notenough that the State's witness be a potential witness; rather, the State'switness must be an actual witness in the case. Slip op. at 4. An "actual"conflict is not necessary to constitute a per se conflict; instead, there needonly be a "potential" conflict. It is enough that the defendant's attorney isrepresenting or has represented a "potential" State's witness. This courthas consistently held that a "possible conflict of interest" dictated"application of a per se rule." See People v. Lawson, 163 Ill. 2d 187,217-18 (1994); see also People v. Barrow, 133 Ill. 2d 226, 254 (1989)(potential conflict of interest may have precluded attorney from properlycross-examining certain witnesses the State indicated it may call at trial);People v. Thomas, 131 Ill. 2d 104, 111 (1989) (defendant need notshow prejudice under the per se rule when his attorney had " 'an actualor possible conflict of professional interests' "), quoting People v.Washington, 101 Ill. 2d 104, 110 (1984); People v. Franklin, 75 Ill. 2d173, 176 (1979) (per se rule provides that where defense counsel isinvolved in an actual or potential conflict of interest, it is unnecessary forthe defendant to establish actual prejudice).

It will not always be possible to know at the time of the disclosure ofthe potential conflict whether the State's witness will "actually" testify.Here, when the State disclosed the potential conflict to the trial court, itstated that Hernandez "could potentially be a witness for the State in itscase in chief, and even more likely perhaps in aggravation if the casewould proceed *** for a death penalty sentencing." Hernandez'sinvolvement in this case was addressed by both parties in openingstatements, by nearly every witness at trial, and in closing arguments. If theState had called Hernandez to testify, both parties concede that a per seconflict would have developed. Accordingly, I would hold that defensecounsel's contemporaneous representation of defendant and Hernandezcreated a per se conflict of interest.

I would, however, hold that defendant's conviction should not bereversed because he was made aware of the potential conflict andknowingly waived his right to conflict-free counsel. The majority does notaddress the actual appellate court holding as briefed and argued by theparties. The appellate court decision was based on whether defendant'swaiver of any potential conflict of interest was knowing or intelligent. Themajority opinion mentions in the background of the case that defendantwaived the conflict in the trial court, but then makes no mention of this inthe analysis. The defendant retained the attorney and then waived thepotential conflict in open court. The appellate court decision should bereversed on the basis that defendant waived any potential conflict.

JUSTICE RARICK joins in this special concurrence.