No. 2--94--1383
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) On appeal from the Circuit
OF ILLINOIS, ) Court of Lake County.
)
Plaintiff-Appellee, ) No. 91--CF--1001
)
v. )
)
DAVID T. MORLEY, ) Honorable
) John R. Goshgarian,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Following a jury trial in the circuit court of Lake County,
defendant, David Morley, was found guilty of two counts of
attempted first-degree murder, two counts of aggravated discharge
of a firearm, one count of armed violence, and one count of
aggravated battery with a firearm. The charges against defendant
stemmed from his involvement in a shoot-out on May 7, 1991, with
two Round Lake Beach police officers, one of whom, Detective
David Ostertag, was struck by a bullet and seriously wounded.
Defendant was sentenced to an extended term of 50 years'
imprisonment for the attempted murder of Detective Ostertag to
run consecutively to a sentence of 30 years' imprisonment for the
attempted murder of the other officer, Detective Gary Bitler.
An appeal was taken, and this court reversed defendant's
convictions and remanded the cause for a new trial. See People
v. Morley, 255 Ill. App. 3d 589 (1994). A new jury trial ensued
on the same charges in September 1994 and concluded with guilty
verdicts on all of the charged offenses. Defendant was sentenced
to 50 years' imprisonment on one count of attempted first-degree
murder to be served consecutively to a 30-year term on the other
attempt count. Defendant was also sentenced to 30 years'
imprisonment on one count of aggravated discharge of a firearm to
be served concurrently with a 15-year term on the other discharge
count, and concurrently with the other two attempt convictions.
No sentence was entered on the armed violence count or the count
charging aggravated battery with a firearm.
In this appeal, defendant raises the following issues: (1)
whether the trial court improperly refused defendant's request to
appoint a special prosecutor; (2) whether the trial court
improperly refused to allow defendant to impeach two witnesses by
omission; (3) whether the impeachment of a defense witness with
his convictions of the same offenses as those for which defendant
stood trial was improper; (4) whether the trial court erred in
its refusal to instruct the jury on the defense of mistake of
fact; (5) whether the content of the prosecutor's closing
argument deprived defendant of a fair trial; and (6) whether the
trial court erred in finding the attempted murder of Detective
Ostertag to have been accompanied by exceptionally brutal or
heinous behavior indicative of wanton cruelty, thus improperly
imposing an extended term of imprisonment upon defendant. We affirm.
The facts of this case are set out in People v. Morley, 255
Ill. App. 3d 589 (1994). The following supplemental facts are
provided to address the issues relevant to this appeal.
On September 22, 1994, arguments were heard on defendant's
motion for the appointment of a special prosecutor. The motion
alleged, inter alia, that, after the appellate court reversed
defendant's conviction, the prosecutor at defendant's first trial
(and the prosecutor assigned to conduct the retrial), Steven
McCollum, had a leading role in the decision to employ Ostertag
as an investigator in the State's Attorney's office. Ostertag
was a Round Lake Beach police officer at the time of the alleged
offenses and was shot following a high-speed chase involving
defendant and James Files. The motion sought an order to
disqualify the State's Attorney's office.
McCollum, the chief deputy State's Attorney for Lake County,
testified that he was one of two assistant State's Attorneys who
were assigned to prosecute defendant in the first trial.
McCollum is on the hiring committee for attorneys and
investigators; the committee evaluates and recommends individuals
for hiring to Michael Waller, the Lake County State's Attorney,
who makes the final hiring decision. McCollum's duties include
assigning cases to the investigators and supervising their
performance.
McCollum testified that he prepared Ostertag for defendant's
trial because Ostertag was the victim. McCollum specifically
indicated to Ostertag that he should not be involved in any
capacity other than as a victim. McCollum instructed Ostertag
not to investigate or serve subpoenas. McCollum testified that
Ostertag approached him with information received during a
telephone call from a man named Bob Vernon, who wanted to provide
information regarding James Files' alleged involvement in the
assassination of President Kennedy. McCollum testified that
Ostertag conducted no other investigation into the case.
On cross-examination, McCollum testified that the office of
the State's Attorney decided to reprosecute defendant after the
appellate court reversed defendant's conviction. He further
testified that the decision to prosecute defendant was not based
upon any personal relationship that McCollum had with Ostertag.
Ostertag testified that he was a special investigator in the
State's Attorney's office and had been employed as such for the
past 10 weeks. Prior to that he was an officer with the Round Lake
Beach police department. Ostertag's immediate supervisor at the
State's Attorney's office is George Strickland, but he also works
at the direction of McCollum. Ostertag testified that at
McCollum's request he contacted witnesses for new addresses. Prior
to his employment with the State's Attorney's office, Vernon
contacted Ostertag with his claims of Files' involvement with the
Kennedy assassination. Ostertag testified that he apprised
McCollum of his discussions with Vernon and that McCollum never
told him to cease gathering information from Vernon. McCollum told
him, however, not to serve subpoenas, and Ostertag did not talk to
witnesses about their anticipated testimony. Ostertag, on his own,
requested federal "rap" sheets for defendant and Files.
Following argument of counsel, the trial court denied
defendant's motion, stating that no conflict existed at the time of
the first trial and nothing presented in the motion hearing
convinced him that a conflict existed as this second trial
approached. Furthermore, the trial court stated that should
Ostertag's testimony deviate from his original testimony, the
defense could attempt to impeach him. Therefore, no harm would
result even if a conflict was to be determined.
Nonpublishable material omitted under Supreme Court Rule 23.
Defendant was tried before a jury on September 26-29, 1994.
The jury returned verdicts finding defendant guilty of two
counts of attempted first-degree murder, two counts of aggravated
discharge of a firearm, one count of armed violence, and one count
of aggravated battery with a firearm.
At a post-trial hearing on November 21, 1994, defendant's
motion for a new trial was denied, and the cause proceeded to
sentencing. Following arguments, in stating that defendant's
conduct was brutal and heinous and indicative of wanton cruelty and
in considering defendant's prior convictions and criminal history,
the trial court imposed an extended term sentence of 50 years'
imprisonment as to the attempted murder of Ostertag, to be served
consecutively to a 30-year term as to the same charge in reference
to Bitler. A 30-year extended term was imposed for the offense of
aggravated discharge of a weapon (Ostertag), to be served
concurrently with a 15-year term on the same offense with regard to
Bitler. No sentence was entered for the offenses of armed violence
or aggravated battery with a firearm.
On November 23, 1994, defendant's motion for reconsideration
of sentence was denied. Defendant timely appeals.
Defendant first contends that his motion for appointment of a
special prosecutor should have been granted. The basis of
defendant's motion is that the victim, Ostertag, was recommended
for employment in the State's Attorney's office by the prosecutor,
McCollum, and was subsequently hired as an employee of the State's
Attorney's office. Therefore, defendant argues, a reasonable
possibility existed that the prosecution would not exercise its
discretionary power in an even-handed manner. The State argues
that Ostertag was the victim and did not perform employee functions
in this case.
Article VI, section 19, of the Illinois Constitution provides
for the election of a State's Attorney in each county. Ill. Const.
1970, art. VI, §19. The powers and duties of a State's Attorney
include commencing and prosecuting all actions, civil and criminal,
in which the people of the State may be concerned. 55 ILCS Ann.
5/3--9005 (Smith-Hurd 1996). However, when a State's Attorney is
interested in any cause or proceeding, civil or criminal, which it
is or may be her or his duty to prosecute, the court may appoint
some other competent attorney to prosecute such cause or
proceeding. 55 ILCS 5/3--9008 (West 1994). The purpose of this
provision is to prevent any influence upon the discharge of the
duties of the State's Attorney by reason of personal interest. See
People ex rel. Hutchinson v. Hickman, 294 Ill. 471 (1920). The
decision to appoint a special prosecutor rests with the discretion
of the trial court. People v. Polonowski, 258 Ill. App. 3d 497,
503 (1994). A special prosecutor can be appointed at any stage of
the case. Baxter v. Peterlin, 156 Ill. App. 3d 564, 566 (1987).
The conflict asserted here is based on McCollum's professional
relationship with Ostertag. Initially, we note that the trial
court clearly had the discretion either to appoint or deny the
appointment of a special prosecutor. The issue thus becomes
whether McCollum was "interested" within the scope of the statute.
The State denies that McCollum was "interested" or had a conflict
of interest as such. Our supreme court has held that the only
situations in which the Attorney General or the State's Attorney
could be considered to be interested so as to authorize the
appointment of a special Attorney General or State's Attorney are
where (1) she or he is interested as a private individual; or (2)
she or he is an actual party to the litigation. Environmental
Protection Agency v. Pollution Control Board, 69 Ill. 2d 394, 400-
01 (1977); see also Suburban Cook County Regional Office of
Education v. Cook County Board, 282 Ill. App. 3d 560, 569 (1996).
Defendant also cites People v. Lewis, 88 Ill. 2d 429 (1981),
and People v. Polonowski, 258 Ill. App. 3d 497 (1994), for support.
However, the Lewis and Polonowski holdings are limited to conflicts
based on counsel's personal relationships. Because defendant
contends that McCollum's conflict is based on a professional
relationship with a witness, and not a personal relationship, we
decline to analyze under the Lewis and Polonowski line of cases.
Furthermore, neither of these cases imposed a per se rule which
required the disqualification of counsel on the basis of an
acquaintance with a witness.
In the instant case, McCollum is not an actual party, nor
does the record support a finding that McCollum has a private
individual interest in the litigation. The words that McCollum
used to describe Ostertag, a "very nice man," a "colleague," and a
"very good and professional police officer," do not rise to the
level of a personal interest. Cf. Baxter v. Peterlin, 156 Ill.
App. 3d 564 (1987). Further, at the pretrial hearing, Ostertag
testified that he had been employed at the State's Attorney's
office for approximately 10 weeks; he only checked the current
addresses of some of the witnesses; he did not discuss their
testimony with them; he did not interview them; he did not serve
any subpoenas; he made no diagrams; and he did not handle any
physical evidence. Regarding the communications between Ostertag
and Vernon, Ostertag testified that it was Vernon who initially
contacted him regarding Files' involvement with the Kennedy
assassination, and this was done prior to his employment with the
State's Attorney's office.
The State's Attorney's responsibilities are not limited to
representing the people of the State who are not employed by the
State of Illinois or some other governmental entity. These
prosecutorial responsibilities will occasionally include
prosecuting cases where victims and witnesses are employed by a
state, county, or local agency, including, but not limited to, the
State's Attorney's Office. Furthermore, the State's Attorney does
not represent individuals or specific witnesses during the course
of criminal prosecutions. Criminal prosecutions are commenced in
the name of and on behalf of the people of the State of Illinois.
To hold that a special prosecutor must always be appointed whenever
a victim or witness is employed by a state, county, or local agency
would be an illogical, as well as impractical, encroachment upon
the authority of a constitutional officer. Accordingly, we hold
that the trial court did not abuse its discretion in denying
defendant's motion for the appointment of a special prosecutor.
Nonpublishable material omitted under Supreme Court Rule 23.
For the foregoing reasons, defendant's convictions and
sentence are affirmed.
Affirmed.
GEIGER, P.J., and INGLIS, J., concur.