People v. Green

2020 IL 125005

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 125005)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DONNELL D. GREEN, Appellant.

Opinion filed May 21, 2020.

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with
opinion.

Chief Justice Anne M. Burke and Justices Kilbride, Garman, Karmeier, Theis,
and Neville concurred in the judgment and opinion.

OPINION

¶1 Defendant, Donnell D. Green, was convicted of two counts of the first degree
murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)) of Jimmie Lewis and was
sentenced to 35 years’ imprisonment on one of those convictions. Defendant’s
conviction was affirmed on direct appeal. People v. Green, 2012 IL App (2d)
 101043-U. Defendant then filed a postconviction petition alleging, inter alia, that
his trial counsel labored under a per se conflict of interest because his trial counsel
had previously represented Danny “Keeko” Williams, the intended victim of the
murder, and defendant neither knew about the conflict nor waived the conflict.
Following a third-stage evidentiary hearing, the Lake County circuit court denied
defendant’s postconviction petition. The appellate court affirmed the trial court’s
order, finding no per se conflict of interest. 2019 IL App (2d) 160217-U. 1 This
court subsequently granted defendant’s petition for leave to appeal. Ill. S. Ct. R.
315(a) (eff. July 1, 2018).

¶2 BACKGROUND

¶3 Jimmie Lewis was shot and killed on October 18, 2017, while riding as a
passenger in a vehicle driven by Danny “Keeko” Williams. Lewis and Keeko were
associated with a street gang known as the Black P. Stones gang or the “Moes.”

¶4 On the night of the shooting, defendant was riding in a vehicle with his friends
Chappel Craigen, Jabril Harmon, and Emanuel Johnson. Defendant and his friends
were associated with a street gang known as the “4 Corner Hustlers.” Craigen was
driving. Defendant was in the front passenger seat. Johnson was in the back seat
behind defendant, and Harmon was in the back seat behind Craigen. While driving,
they passed the vehicle that Keeko was driving, going in the opposite direction.

¶5 The Moes had recently had an altercation with the 4 Corner Hustlers, and the
gangs had been feuding since 2005. When defendant and his friends saw Keeko’s
vehicle, they said, “that’s them, that’s them,” meaning “that’s the Moes *** that’s
Keeko.” Craigen made a U-turn and followed Keeko’s vehicle. Everyone in the car
“got excited.” Defendant grabbed a gun from the middle console and said, “I’ll do
it,” meaning he would shoot at Keeko’s car. Defendant, however, passed the gun to

1
Justice McLaren concurred with the majority’s decision affirming the trial court but dissented
from that portion of the opinion granting the State’s request that defendant be assessed $50 as costs
of the appeal pursuant to section 4-2002 of the Counties Code (55 ILCS 5/4-2002 (West 2016)).
2019 IL App (2d) 160217-U, ¶ 28 (McLaren, J., concurring in part and dissenting in part).

-2-
 Johnson, who passed it to Harmon. When Craigen’s vehicle pulled up to the side
of Keeko’s vehicle, Harmon shot multiple times, hitting and killing Lewis.

¶6 Defendant was charged with three counts of first degree murder—intentional,
knowing, and with a strong probability of death. 720 ILCS 5/9-1(a)(1), (a)(2), (a)(3)
(West 2006). Attorney Robert Ritacca entered an appearance on behalf of defendant
on July 20, 2009. Defendant’s case was severed from that of his codefendants and
proceeded to jury trial in June 2010. The State’s theory of the case was that
defendant was guilty based upon accountability.

¶7 The jury found defendant not guilty of intentional first degree murder but found
him guilty of both knowing and strong probability of murder, while armed with a
firearm. Defendant was sentenced to a 35-year prison term on the knowing murder
conviction.

¶8 Defendant filed a direct appeal, arguing that the State did not prove that he was
accountable for Lewis’s murder. The appellate court affirmed defendant’s
conviction. 2012 IL App (2d) 101043-U.

¶9 Defendant then filed a postconviction petition arguing, inter alia, that defense
counsel was ineffective because he labored under a per se conflict of interest.
Defendant noted that Ritacca, his trial counsel, had previously represented Keeko
Williams, the intended murder victim, creating a per se conflict of interest.

¶ 10 The trial court advanced defendant’s petition to the second stage of
postconviction proceedings. The State then filed a motion to dismiss the petition.
Following a hearing on the State’s motion to dismiss, the trial court dismissed the
per se conflict claim on the ground that Keeko was not the victim of the murder for
which defendant was charged and convicted. The trial court, however, advanced
defendant’s additional claims—that Ritacca had an actual conflict of interest and
that Ritacca had provided ineffective assistance of counsel—to a third-stage
evidentiary hearing. Prior to the start of the third-stage evidentiary hearing, the trial
court stated that defendant could still try to prove a per se conflict of interest, even
though the trial court had dismissed that claim.

¶ 11 At the hearing, Ritacca testified that he entered his appearance on behalf of
defendant on July 23, 2009. Ritacca had represented Keeko Williams in two

-3-
 separate cases during the time period from June 10, 2007, through March 14, 2008.
The shooting in this case took place on October 18, 2007. Ritacca represented
Keeko in a cannabis possession case from June 10 through November 28, 2007.
Ritacca also represented Keeko in a driving while license suspended case from July
18, 2007, through March 14, 2008, although Ritacca testified that Keeko failed to
appear in that case and he lost track of him. The parties also stipulated that Ritacca
had represented Keeko’s brothers Joey and Brannon prior to representing defendant
and that Joey and Brannon were members of the Moes gang. Ritacca testified that
he could not remember whether he told defendant or the State that he had previously
represented Keeko, but he confirmed that he had not told the trial court about the
representation.

¶ 12 Defendant testified that Ritacca did not tell him he had previously represented
Keeko and said that he would not have hired Ritacca if he had known that Ritacca
had previously represented Keeko and Keeko’s family. Keeko was listed as a
potential trial witness for both the State and the defense but never testified.

¶ 13 Following argument, the trial court denied defendant’s postconviction petition.
The trial court agreed with defendant that Keeko was the actual target of the
shooting and that Ritacca had represented Keeko on prior cases unrelated to the
instant case. Defendant repeated his claim that, because Keeko was the intended
victim of the shooting, a per se conflict existed based upon the doctrine of
transferred intent. The trial court rejected that argument, stating that it was aware
of no case holding that transferred intent created a per se conflict, and declined to
find such a conflict in this case. The trial court also found that there was no actual
conflict of interest, nor did defendant receive ineffective assistance of counsel.

¶ 14 On appeal, defendant challenged only the trial court’s finding that Ritacca did
not have a per se conflict of interest based upon his prior representation of the
intended victim of the murder. Defendant again argued that Ritacca labored under
a per se conflict of interest because Ritacca had previously represented Keeko. In
the alternative, defendant asked the appellate court to recognize a fourth category
of per se conflict—where defense counsel previously represented the intended
victim. The State responded that there was no per se conflict because Keeko was
not the actual victim of the shooting.

-4-
¶ 15 Citing People v. Fields, 2012 IL 112438, ¶ 18, the appellate court noted three
situations in which a per se conflict exists, including “where defense counsel has a
prior or contemporaneous association with the victim, the prosecution, or an entity
assisting the prosecution.” (Emphasis in original.) 2019 IL App (2d) 160217-U,
¶ 19. Defendant claimed that Ritacca’s prior representation of Keeko fit within that
per se conflict of interest situation because Keeko was the intended victim in this
case. The appellate court disagreed, finding there was no per se conflict of interest
because defendant was charged with, and convicted of, the murder of Jimmie Lewis
and was not charged with the murder of Ritacca’s former client, Keeko Williams.
Id. ¶ 21.

¶ 16 The appellate court also declined to find a fourth category of per se conflict,
noting that the Fields decision reiterated the court’s long-standing precedent
recognizing three situations where a per se conflict of interest exists. Id. ¶ 23. The
appellate court therefore affirmed the trial court’s order denying defendant’s
postconviction petition.

¶ 17 Defendant now appeals the decisions of the lower courts finding there was no
per se conflict of interest in this case. In the alternative, defendant asks this court
to recognize a fourth category of per se conflict: where defense counsel previously
or contemporaneously represented the intended victim of the crime.

¶ 18 ANALYSIS

¶ 19 The parties agree that the facts underlying this appeal are undisputed.
Accordingly, the issue of whether a per se conflict exists presents a legal question
that this court reviews de novo. Fields, 2012 IL 112438, ¶ 19.

¶ 20 A criminal defendant’s right to the effective assistance of counsel arises from
the sixth amendment and includes the right to conflict-free representation. People
v. Nelson, 2017 IL 120198, ¶ 29. Conflict-free representation means “assistance by
an attorney whose allegiance to his client is not diluted by conflicting interests or
inconsistent obligations.” People v. Spreitzer, 123 Ill. 2d 1, 13-14 (1988). There are
two categories of conflict of interest: per se and actual. Fields, 2012 IL 112438,
¶ 17.

-5-
¶ 21 The term “per se” conflict was first used in People v. Coslet, 67 Ill. 2d 127
(1977), to describe the holding in that case, as well as in prior cases. In Coslet,
defense counsel for a woman accused of murdering her husband was at the same
time acting as the administrator of the husband’s estate. Id. at 131-32. The decedent
had died intestate, and the defendant was not his sole heir, so the defendant’s
conviction at least raised the possibility that the decedent’s estate would be
enriched. Id. at 134. The Coslet court noted that an earlier decision had adopted a
conflict of interest rule “whereby allegations and proof of prejudice are unnecessary
in cases where a defense counsel, without the knowledgeable assent of the
defendant, might be restrained in fully representing the defendant’s interests due to
his or her commitments to others.” Id. at 133 (citing People v. Stoval, 40 Ill. 2d 109,
113 (1968)). The court therefore held that the attorney was in a per se conflict of
interest position in defending the defendant and affirmed the reversal of the
defendant’s conviction. Id. at 134, 136.

¶ 22 Thereafter, in Spreitzer, 123 Ill. 2d at 14, the court noted that, in each of the
cases to apply a per se conflict of interest rule, certain facts about the defense
attorney’s status were held to engender, by themselves, a disabling conflict. The
court explained that the justification for treating the conflicts in those cases as
per se was that the defense counsel in each case had a “tie to a person or entity—
either counsel’s client, employer, or own previous commitments—which would
benefit from an unfavorable verdict for the defendant.” Id. at 16.

¶ 23 Spreitzer explained that one problem created by such a tie is that the
“knowledge that a favorable result for the defendant would inevitably conflict with
the interest of his client, employer or self might ‘subliminally’ affect counsel’s
performance in ways difficult to detect and demonstrate.” Id. A second problem is
the “possibility that the conflict will unnecessarily subject the attorney to ‘later
charges that his representation was not completely faithful.’ ” Id. at 16-17 (quoting
Stoval, 40 Ill. 2d at 113).

¶ 24 This court has identified three situations in which a per se conflict of interest
will be found: “(1) where defense counsel has a prior or contemporaneous
association with the victim, the 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

-6-
 involved with the prosecution of defendant.” Fields, 2012 IL 112438, ¶ 18. A per se
conflict of interest is automatic grounds for reversal unless the defendant waives
his right to conflict-free representation. Id.

¶ 25 Defendant asserts that the facts of this case fall within the first situation giving
rise to a per se conflict of interest, specifically, where defense counsel has an
association with the victim. Defendant contends that defense counsel’s
representation of the intended, but not actual, victim of a charged crime presents
the same risks as defense counsel’s representation of the actual victim, so that
defense counsel’s representation of intended victims is included within the per se
exception. Defendant relies on the decision in People v. Hernandez, 231 Ill. 2d 134
(2008), in support of his claim.

¶ 26 In Hernandez, the defendant was charged with two counts of the solicitation of
murder for hire of Jamie Cepeda. Id. at 138. In 2003, the defendant retained John
DeLeon to represent him on the charges. Id. at 138-39. DeLeon had previously been
retained by Cepeda in connection with a 1999 unlawful use of a weapon charge. Id.
at 139. DeLeon continued to represent Cepeda through January 16, 2001, when a
bond forfeiture was issued against Cepeda for failure to appear in court. Id. Cepeda
had fled the country prior to that date and had not returned. Id. Nonetheless, DeLeon
continued to be the attorney of record for Cepeda. Id. Although Cepeda’s name
appeared on the State’s list as a potential witness in the defendant’s case, neither
the defendant nor the trial court was informed of DeLeon’s dual representation. Id.
Both DeLeon and the assistant state’s attorney prosecuting the defendant’s case
were aware of the dual representation. Id.

¶ 27 The defendant was found guilty, and he later filed a postconviction petition
alleging that DeLeon’s dual representation of himself and Cepeda constituted a
per se conflict of interest that denied him the effective assistance of counsel. Id.
The defendant’s postconviction petition included an affidavit from DeLeon, in
which DeLeon averred that he considered himself to be Cepeda’s attorney because
his appearance was still on file in Cepeda’s case. Id. DeLeon also averred that
neither he nor the prosecutor brought his prior and active representation of Cepeda
to the defendant’s attention. Id. In addition, at an evidentiary hearing on the
defendant’s postconviction petition, DeLeon stated on direct examination that he
still considered himself to be Cepeda’s attorney and, if Cepeda were apprehended,

-7-
 DeLeon would still be representing Cepeda. Id. at 140. On cross-examination,
DeLeon testified that he had not seen or spoken with Cepeda since some time before
January 2001 and explained that he did not tell the defendant that he represented
Cepeda because he did not think it was a problem. Id.

¶ 28 Following the evidentiary hearing, the trial court denied the defendant’s
postconviction petition, finding there was no per se conflict because there was no
ongoing relationship between DeLeon and Cepeda for the past five years, DeLeon
had no substantial contact with Cepeda, and Cepeda had not been called as a witness
at the defendant’s trial. Id. at 141. The appellate court affirmed, with one justice
dissenting. Id. at 141-42.

¶ 29 On appeal, this court looked to the three situations where it had recognized a
per se conflict of interest and concluded that the first situation was present in the
case: when defense counsel has a prior or contemporaneous association with the
victim, the prosecution, or an entity assisting the prosecution. Id. at 150. The
Hernandez court then reversed the lower courts, stating that “DeLeon’s status as
Cepeda’s attorney itself dictates application of the per se rule.” (Emphasis in
original.) Id. The court explained that application of the per se rule is
straightforward and simple. Thus, there is a per se conflict “[i]f counsel represents
the defendant and the victim of the defendant’s alleged conduct.” (Emphasis in
original.) Id. at 147.

¶ 30 Defendant points to similarities between this case and Hernandez in support of
his argument. For example, like DeLeon’s representation of Cepeda, Ritacca had
previously represented Keeko in two different cases. In addition, Ritacca lost track
of Keeko on the traffic case when Keeko failed to appear, just as DeLeon lost track
of Cepeda when Cepeda failed to appear. As in Hernandez, Ritacca’s prior
representation of Keeko was never brought to the attention of the trial court, and
defendant never waived the conflict.

¶ 31 Defendant concedes that Jimmie Lewis, the unintended victim in this case, was
the only victim named in the indictment. Defendant argues, however, that the same
principle that would mandate reversal when defense counsel represented the actual
victim should apply when counsel represented the intended, but not actual, victim.
Defendant claims that the same risks that this court has stressed—an imperceptible,
negative, subliminal effect on the attorney’s performance and later charges of

-8-
 unfaithful representation—are present when trial counsel previously represented
the intended victim of the charged offense, even if the intended victim is not named
in the charging instrument. In this case, Keeko would obviously benefit from an
unfavorable verdict against defendant, who was accused of participating with rival
gang members in an attempt to murder Keeko.

¶ 32 Despite defendant’s attempt to paint Hernandez as controlling, we find this case
entirely distinguishable. Hernandez found a per se conflict of interest because
defense counsel represented both the defendant and the victim of the charged
offense. Defense counsel in the instant case never represented Jimmie Lewis, the
victim of the charged offense. Keeko Williams may very well have been the
intended victim in this case, but he was never the “victim” for purposes of a per se
conflict of interest.

¶ 33 Nonetheless, in attempting to analogize his case to Hernandez, defendant
describes the Hernandez victim as an “intended victim.” Defendant reasons that,
because Hernandez was charged with the solicitation of murder for hire of Cepeda,
Cepeda was never actually harmed and was only a victim in the most technical
sense. Defendant therefore maintains that the underlying facts in this case and
Hernandez are the same, because defense counsel in each case previously
represented an intended victim of a charged crime who was not actually harmed.
Defendant asserts that he and the Hernandez defendant received disparate treatment
based upon the charging decisions of the State, simply because Keeko was not
named in the charging instrument as the intended victim. Defendant asks this court
to correct that disparity.

¶ 34 Defendant’s attempt to align his case with Hernandez, and thus within the first
per se conflict of interest situation, is unavailing. Whether Cepeda was actually
physically “harmed” or not, Cepeda was, in fact, the actual victim of the crime of
solicitation of murder for hire. Hernandez was charged with two counts of the
solicitation of murder for hire of Cepeda. Hernandez’s defense counsel had
represented Cepeda and was the attorney of record for Cepeda, at the same time
that he represented Hernandez. Accordingly, there was no question that counsel in
Hernandez represented both the defendant and the victim in the case.

¶ 35 Here, in contrast, Keeko was not the actual victim of the charged offense. The
State’s theory of the case was that a guilty verdict on the charged offense was proper

-9-
 under the doctrine of transferred intent, even assuming defendant and his friends
intended to target Keeko specifically. The charged offense was the first degree
murder of Jimmie Lewis. Jimmie Lewis was the actual victim of the crime. There
is no allegation that Ritacca ever represented Jimmie Lewis. There could be no
per se conflict of interest in this case, then, because Ritacca did not represent both
the defendant and the victim of the charged crime.

¶ 36 Defendant also argues that a determination of whether trial counsel is laboring
under a per se conflict of interest, as it relates to his prior representation of a victim,
should rest on the justifications for the per se conflict rule and the underlying facts
related to trial counsel and the intended victim of the offense. The justification for
the per se rule, however, does not itself expand the rule or create an additional basis
for finding a per se conflict. The court rejected such an argument in Fields, where
the appellate court had construed the justification for the per se conflict rule as
creating an additional, alternate basis for finding a per se conflict. Fields, 2012 IL
112438, ¶ 41.

¶ 37 We likewise reject defendant’s attempt to use the justification underlying the
established per se rule concerning defense counsel’s representation of victims to
expand the rule beyond this court’s precedent. As Hernandez recognized,
application of the per se conflict rule is simple and straightforward. 231 Ill. 2d at
147. The matter is settled if counsel represents both the defendant and the victim of
the defendant’s alleged conduct. Id. Those circumstances are not present in this
case. Accordingly, the appellate court correctly affirmed the trial court’s order
denying defendant’s postconviction petition.

¶ 38 Our holding does not leave defendants without a remedy in similar
circumstances. A defendant can assert a violation of his right to the effective
assistance of counsel based upon an actual conflict of interest that adversely
affected his counsel’s performance. Id. at 144. In this case, defendant’s
postconviction petition contained claims for actual conflict of interest and
ineffective assistance of counsel, in addition to his claim of a per se conflict of
interest. The trial court denied those claims, and defendant chose not to appeal that
portion of the trial court’s order.

¶ 39 In the alternative, defendant asks this court to recognize a fourth category of
per se conflict of interest. Defendant again cites the justification for treating

- 10 -
 conflicts as per se, that “defense counsel in each case had a tie to a person or
entity—either counsel’s client, employer, or own previous commitments—which
would benefit from an unfavorable verdict for the defendant.” Spreitzer, 123 Ill. 2d
at 16. Defendant again notes that Keeko was Ritacca’s former client, who would
benefit from an unfavorable verdict for defendant. In this portion of his argument,
defendant acknowledges Fields’s holding that the justification for the per se rule
does not create another basis for finding a conflict of interest. Defendant argues,
however, that this court has never explicitly stated that the three traditional
categories of per se conflict are exclusive categories.

¶ 40 Defendant argues that the interests of justice are best served by finding a per se
conflict of interest when a defendant’s trial counsel had previously represented the
intended victim of the charged offense. Defendant claims Fields left open the
possibility of another category of per se conflict when it stated there was no “need
to consider whether defendant is correct that additional situations might be found
where a per se conflict of interest exists.” Fields, 2012 IL 112438, ¶ 37.

¶ 41 We decline defendant’s request to create a fourth category of per se conflict. A
per se conflict of interest is found where a defendant is denied assistance of counsel
entirely or during a critical stage, or in “ ‘circumstances of that magnitude,’ ”
because the verdict is likely so unreliable that a case-by-case determination is
unnecessary. Hernandez, 231 Ill. 2d at 146 (quoting Mickens v. Taylor, 535 U.S.
162, 166 (2002)). “Circumstances of that magnitude” are necessarily the exception.
This court’s long-standing precedent has always recognized only three
“circumstances of that magnitude” in which a per se conflict will be found to exist.

¶ 42 The language in Fields, which defendant cites as leaving open the possibility of
additional per se conflict situations, appears in the portion of the opinion addressing
whether the first and second per se conflict situations are mutually exclusive. In
holding that the first and second per se conflict situations are distinct, the opinion
simply notes that the court need not consider defendant’s claim that additional
situations might be found where a per se conflict of interest exists. See Fields, 2012
IL 112438, ¶ 37. In fact, the Fields opinion later expressly states that, “[p]ursuant
to long-standing precedent, this court has recognized three situations where a per se
conflict of interest exists.” Id. ¶ 41.

- 11 -
¶ 43 In the event any confusion remains, we reiterate that this court recognizes only
three situations in which a per se conflict of interest will be found to exist. Those
situations are “(1) where defense counsel has a prior or contemporaneous
association with the victim, the 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 prosecution of defendant.” Id. ¶ 18. Because Ritacca’s
representation of both defendant and Keeko Williams did not fit within any of those
three per se conflict situations, Ritacca’s representation of Keeko did not create a
per se conflict in this case.

¶ 44 CONCLUSION

¶ 45 For all the foregoing reasons, the judgment of the appellate court, which
affirmed the circuit court’s order denying defendant’s petition for postconviction
relief, is affirmed.

¶ 46 Affirmed.

- 12 -