People v. Merritte ( 2020 )

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 190100-UOrder filed May 1, 2020
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2020
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0100
v. ) Circuit No. 15-CF-28
)
CLARENCE MERRITTE, ) Honorable
) Cynthia M. Raccuglia,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court.
Justices Schmidt and Wright concurred in the judgment.
ORDER
¶1 Held: Defense counsel did not labor under a per se conflict of interest when he
represented defendant on charges of aggravated battery.
¶2 Defendant, Clarence Merritte, appeals his conviction for aggravated battery. Defendant
argues that his conviction must be reversed because defense counsel labored under a per se
conflict of interest by representing both defendant and a purported victim. We affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged with two counts of aggravated battery (720 ILCS 5/12-3.05(c),
(f)(1) (West 2014)) for striking Brandon Nighswonger with his fists and a pool cue. The incident
occurred on October 17, 2014. An additional charge for driving while his license was revoked
(625 ILCS 5/6-303(a), (d-2) (West 2016)) was later added. The third charge involved an incident
that occurred approximately 18 months after the first incident. Defendant retained attorney
Charles Snowden to represent him.
¶5 Defendant was later charged with aggravated assault (720 ILCS 5/12-2(c)(7) (West
2016)), unlawful restraint (id. § 10-3(a)), domestic battery (id. § 12-3.2(a)(1)), and driving while
his license was revoked (625 ILCS 5/6-303(a), (d-2) (West 2016)). These charges stemmed from
a third incident that occurred on February 17, 2017, while defendant was released on bail. The
indictment stated that Devita Durando was the victim of the aggravated assault charge, and
Kayla Stratton was the victim of the unlawful restraint and domestic battery charges.
¶6 The State filed a motion to disqualify Snowden as defendant’s attorney because Snowden
was contemporaneously representing Stratton. The motion stated that Snowden accompanied
Stratton when she was called to testify before a grand jury and identified himself as her attorney
to an assistant state’s attorney. Snowden and the assistant state’s attorney had a discussion
regarding Stratton giving a statement to the sheriff’s office. Stratton also indicated that Snowden
was her attorney concerning a case opened by the Department of Child and Family Services.
¶7 Defendant filed a response requesting that the court deny the State’s motion. The
response stated that Snowden was no longer representing Stratton because she was not being
charged with any offense. The motion stated that Stratton had indicated that they would waive
any possible conflict and that defendant would do the same.
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¶8 A hearing was held on the State’s motion to disqualify Snowden. Defendant was
personally present at the hearing. The State argued that Snowden had contemporaneously
represented defendant and Stratton, a prosecution witness. The State argued that this created a
conflict for representing defendant going forward. Snowden argued that there was no per se
conflict unless he contemporaneously represented defendant and Stratton at the time of
defendant’s trial. Snowden maintained that he no longer represented Stratton.
¶9 The court found that a per se conflict of interest existed regarding the charges involving
the incident on February 17, 2017. The court ruled that Snowden would have to disqualify
himself from representing defendant on those charges, but he could continue to represent
defendant on the other charges. The court asked defendant if he wished to hire private counsel to
represent him on the charges involving Stratton, and defendant said yes. Defendant hired
attorney Matthew Mueller to represent him on those charges.
¶ 10 On July 5, 2017, a bench trial was held on the two aggravated battery charges concerning
Brandon. Snowden represented defendant at the trial. The evidence at the trial tended to show
that defendant and several other individuals got into an altercation with Brandon and Logan
Nighswonger at a bar. They struck Brandon in the head with their fists and a pool cue. Brandon
suffered several lacerations to his head and had memory problems after the incident. Brandon,
Logan, and two police officers testified for the State. Curtis Dawson testified for the defense.
The court found defendant guilty of both charges and sentenced him to five years’ imprisonment
on one of the aggravated battery counts. The other count merged.
¶ 11 On October 20, 2017, defendant entered into a plea deal regarding the remaining charges.
Mueller represented him during the plea hearing. Pursuant to the agreement, defendant pled
guilty to aggravated assault and one count of driving while his license was revoked, and the State
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dismissed the remaining charges. As a factual basis for the plea, the prosecutor stated that
Durando would testify that she was driving her vehicle on the date of the incident. Defendant got
into an argument with a passenger in her vehicle, and he chased Durando’s vehicle with his
vehicle. Defendant struck Durando’s vehicle, causing it to become nonfunctional. At the time of
the incident, defendant’s license was revoked because he had a prior conviction for driving while
under the influence of alcohol. Defendant received concurrent sentences of one year of
imprisonment on each count.
¶ 12 II. ANALYSIS
¶ 13 Defendant argues that his conviction for aggravated battery should be reversed and the
matter should be remanded for a new trial because Snowden labored under a per se conflict of
interest by representing Stratton, one of defendant’s victims. Defendant argues that the court did
not cure the per se conflict of interest by only removing Snowden from representing defendant
on the charges related to Stratton. Defendant notes that he did not make an informed and
voluntary waiver of his right to conflict-free counsel. We find that Snowden did not labor under
a per se conflict of interest because Stratton was not the victim of the aggravated battery charges
nor was she involved in the incident giving rise to those charges.
¶ 14 “A criminal defendant’s sixth amendment right to effective assistance of counsel includes
the right to conflict-free representation.” People v. Hernandez, 231 Ill. 2d 134, 142 (2008). A
defense attorney has a per se conflict of interest when “ ‘facts about a defense attorney’s status
*** engender, by themselves, a disabling conflict.’ ” (Emphasis in original.) People v. Morales,
209 Ill. 2d 340, 346 (2004) (quoting People v. Spreitzer, 123 Ill. 2d 1, 14 (1988)). In such
instances, “counsel’s knowledge that a result favorable to his other client or association would
inevitably conflict with defendant’s interest ‘might “subliminally” affect counsel’s performance
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in ways [that are] difficult to detect and demonstrate.’ ” Hernandez, 231 Ill. 2d at 143 (quoting
Spreitzer, 123 Ill. 2d at 16).
¶ 15 Our supreme court has held that a per se conflict of interest exists: “(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.” People v. Fields, 2012 IL 112438, ¶ 18. If a per se
conflict is found to exist, it is not necessary for the defendant to show that the conflict affected
the attorney’s performance. Id. Rather, a per se conflict is grounds for automatic reversal unless
the defendant has waived the conflict. Id.¶ 16 Here, defendant has not demonstrated that Snowden’s representation of Stratton created a
per se conflict of interest regarding the aggravated battery charges involving Brandon. Our
supreme court has held that a per se conflict of interest exists “where defense counsel has a prior
or contemporaneous association with the victim.” (Emphasis added.) Id. We believe that this
statement refers to the victim of the offense on which the attorney represents the defendant. This
interpretation is supported by the court’s discussion of per se conflicts in Hernandez. The
Hernandez court noted that it had “construed broadly the per se conflict rule when counsel
represents both the victim of defendant’s offense and the defendant himself.” (Emphasis added.)
Hernandez, 231 Ill. 2d at 151.
¶ 17 In the instant case, Stratton was not the victim of the aggravated battery charges on which
Snowden represented defendant. For all practical purposes, the aggravated battery charges were a
separate case from the charges relating to Stratton. Although the charges involving Stratton were
brought under the same case number as the aggravated battery charges, they involved a different
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incident that occurred more than two years later than the bar fight giving rise to the aggravated
battery charges. The aggravated battery charges were tried separately from the charges relating to
Stratton. Under these circumstances, we do not believe that the rationale for per se conflicts of
interest applies.
¶ 18 We do not foreclose the possibility that, under different circumstances, defense counsel’s
representation of one victim would constitute a per se conflict of interest on charges concerning
a different victim. For example, if a defendant was charged with multiple offenses for injuring
multiple victims in the same incident or closely related incidents, an attorney’s representation of
one of the victims might constitute a per se conflict of interest as to all the charges against the
defendant. In the instant case, however, the incident giving rise to the aggravated battery charges
was completely separate from and unrelated to the incident giving rise to the charges relating to
Stratton.
¶ 19 We reject defendant’s reliance on People v. Arreguin, 92 Ill. App. 3d 899 (1981). In
Arreguin, the defendant was convicted of criminal damage to property. Id. at 900. Defense
counsel’s law firm was also retained by a hospital that was the victim in an unrelated case
pending against the defendant. Id. An official of the hospital testified against the defendant at the
sentencing hearing in the criminal damage to property case. Id. The Arreguin court held that a
per se conflict of interest existed based on defense counsel’s law firm’s ongoing representation
of the hospital. Id. at 902. The court held that the same reasoning that made it a per se conflict to
represent both the defendant and the victim with regard to the same offense applied to that case.
Id. The court reasoned:
“The tactical decisions made by counsel may be subtly, even subconsciously
affected to the detriment of one client by counsel’s desire not to alienate another
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client. Certainly such psychological influences may be present where counsel
represents a criminal defendant while engaged in the continuing representation of
another client whose interests have been violated at some earlier time by that
same defendant. Under these circumstances, the criminal defendant is denied the
unbiased, forceful representation guaranteed to him by the Constitution, and a
reversal of the defendant’s conviction is mandated without a showing of actual
prejudice.” Id.¶ 20 This case is factually distinguishable from Arreguin because Snowden’s representation of
Stratton had ended prior to the time that defendant was tried and sentenced on the aggravated
battery charges. This distinction is significant because the Arreguin court’s justification for
extending the per se conflict rule to the representation of the victim of a different offense in an
unrelated case was based largely on “counsel’s desire not to alienate another client” and
counsel’s “continuing representation of another client whose interests have been violated at some
earlier time by that same defendant.” Id. Such reasoning does not apply where counsel no longer
represents the victim of a different offense.
¶ 21 Also, while the Arreguin court did not base its finding that a per se conflict of interest
existed solely on the fact that a hospital official testified at the defendant’s sentencing hearing, it
arguably could have done so. Our supreme court has recognized that the contemporaneous
representation of a defendant and a witness for the State constitutes a per se conflict of interest.
Fields, 2012 IL 112438, ¶ 20.
¶ 22 Because we have found that no per se conflict of interest existed, we need not address the
State’s argument that defendant has not shown that the alleged conflict adversely affected
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Snowden’s representation, which it claims is required pursuant to the United States Supreme
Court’s holding in Mickens v. Taylor, 535 U.S. 162 (2002).
¶ 23 III. CONCLUSION
¶ 24 The judgment of the circuit court of La Salle County is affirmed.
¶ 25 Affirmed.
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