NOS. 4-01-0575, 4-01-0576, 4-01-0577, 4-01-0657, 4-02-0823 cons.

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v. (No. 4-01-0575)			)	Schuyler County

JAMES PATRICK DALY,					)	No. 00CF61

		Defendant-Appellant.		)

________________________________________-----------------------------------------)

THE PEOPLE OF THE STATE OF ILLINOIS,	)	

		Plaintiff-Appellee,			)

		v. (No. 4-01-0576)			)

JON P. UMPHRYES,					)	No. 00CF40

		Defendant-Appellant.		)

________________________________________----------------------------------------)

THE PEOPLE OF THE STATE OF ILLINOIS,	)	

		Plaintiff-Appellee,			)

		v. (No. 4-01-0577)			)	

TRACY M. THOMPSON,					)	No. 00CF37

		Defendant-Appellant.		)

________________________________________----------------------------------------)

THE PEOPLE OF THE STATE OF ILLINOIS,	)

		Plaintiff-Appellee,			)

		v. (No. 4-01-0657)			)

DAVID J. WICKERT,					)	No. 00CF60

		Defendant-Appellant.		)

________________________________________----------------------------------------)

THE PEOPLE OF THE STATE OF ILLINOIS,	)	

		Plaintiff-Appellee,			)

		v. (No. 4-02-0823)			)

LEWIS E. JONES,					)	No. 00CF58

		Defendant-Appellant.		)

								)	Honorable

								)	Alesia A. McMillen,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		This appeal involves five cases consolidated for the

purpose of appeal.  The relevant defendants, James Patrick Daly,

Jon P. Umphryes, Tracy M. Thompson, David J. Wickert, and Lewis

E. Jones, appeal the final orders of the Schuyler County circuit

court convicting defendants of charges resulting from undercover drug buys accomplished by Schuyler County confidential informant

Brian K. Jockisch.  Similar issues are presented by the five

cases.  We focus on the first case, involving defendant Daly.   

I. BACKGROUND

		Prior to August 1999, Brian Jockisch was a paid infor

mant in Fulton and McDonough Counties.  Jockisch made his living

as a paid informant.  In August 1999, Jockisch was charged, in

Schuyler County, with unlawful possession of cannabis, a misde

meanor, and illegal harvesting of ginseng without a license. 

Attorney John Endres was appointed to represent Jockisch on those

charges.  On December 6, 1999, the charges were dismissed; four

days later, Jockisch signed a written employment agreement with

Schuyler County officials to make undercover drug buys.  Under

that agreement Jockisch made buys at least between December 28,

1999, and August 4, 2000.  

		In February 2000, domestic battery charges were filed

against Jockisch in Brown County.  Endres represented Jockisch on

those charges as well.  On July 7, 2000, Jockisch's domestic

battery charges were dismissed.  

		On June 14, 2000, Jockisch's van was stopped in Brown

County and cannabis was discovered, but the officer did not

arrest Jockisch after learning that he was a paid informant for

Schuyler County.  

		Jockisch testified that he purchased cocaine from

defendant Daly in a controlled sale on July 24, 2000.  The

substance Jockisch gave to police tested inconclusive for con trolled substances.  Jockisch testified that he purchased cocaine

from defendant in a second controlled sale on August 2, 2000. 

That substance tested positive for cocaine.  Jockisch testified

he purchased cocaine from defendant in a third controlled sale on

August 4, 2000.  The substance tested positive for cocaine.

		On November 28, 2000, defendant Daly was charged with

two counts of unlawful delivery of a controlled substance (720

ILCS 570/401(c) (West 2000)) and one count of unlawful distribu

tion of a look-alike substance (720 ILCS 570/404(b) (West 2000)). 

Attorney Endres was appointed to represent defendant.  

		The State filed a motion in limine to bar evidence of Jockisch's misconduct, stating it was unaware of any conviction

for a felony or a crime involving dishonesty or false statement

in the past 10 years.  In response to the State's motion, Endres filed an offer of proof, reciting that the Schuyler County

charges against Jockisch were dismissed December 6, 1999, and

that within days of the dismissal--if not earlier--Jockisch

started purchasing drugs for the Schuyler County sheriff's

office.  The offer of proof also stated that Endres was advised

by the Brown County sheriff's office that Jockisch was doing some

work for Brown County police and not to worry about the domestic

battery charge, which was then dismissed.  

		During the hearing on the motion in limine, the former Schuyler County State's Attorney denied that the charges he

dismissed on December 9, 1999, were dismissed in exchange for an

agreement for Jockisch to purchase drugs.  The State's Attorney testified the charges were dismissed because (1) although an

additional charge, a domestic violence charge, had been contem

plated, Jockisch and his then-wife had reconciled; (2) Jockisch's

family members asked for leniency; (3) one of Jockisch's family

members was married to the State's Attorney's ex-wife, who

interceded on Jockisch's behalf; (4) Jockisch's father may have

had a permit to raise ginseng; and (5) because of Jockisch's

"rather pathetic appearance," the State's Attorney felt sorry for

him.  In response to the court's questioning, however, the

State's Attorney admitted that he and Endres had advised the

court at various times that Jockisch was working for law enforce

ment in other counties, and the State's Attorney was considering

dismissing the case as a result of that work.  The State's

Attorney finally conceded that the work Jockisch had done in

other counties may have been a consideration in the December 9,

1999, dismissal.  Endres then spoke of the work he had done as

Jockisch's attorney.  Endres stated that his memory was bad, that

he may have known of Jockisch's work in other counties, but he

had no knowledge of the Schuyler County agreement until about

mid-2000.  

		The trial court determined that, with the closeness in

times, the dismissal of the cases on December 6 and Jockisch's

beginning to work for the Schuyler County sheriff's office on

December 28 were "highly probative that, at least in Mr.

Jockisch's mind, there was some kind of quid pro quo."  The court concluded that Jockisch could be cross-examined about the connec tion between the cannabis dismissal on December 6, 1999, and the

drug purchases, but not the Brown County dismissal of the domes

tic battery charges "unless you can tie up something specifically

that there was a quid pro quo."     

		During his opening statement, the State's Attorney told

the jury that Jockisch was a paid informant, and may have pos

sessed or used drugs.  During the trial, Endres elicited testi

mony that the Schuyler County cannabis charge had been dismissed,

but he did not introduce evidence that the dismissal was the

result of an informant deal between law enforcement and Jockisch. 

Endres also elicited testimony regarding the Brown County canna

bis incident, but again made no connection between the officer's

failure to arrest Jockisch and Jockisch's informant agreement. 

Nor did Endres impeach Jockisch with the financial arrangement

made in Schuyler County, whereby police paid Jockisch for suc

cessfully buying drugs from local residents and for his "time to

testify," but reimbursed him only for expenses if he failed to

make a buy.  Under the agreement, Jockisch had been paid $5,650

plus $3,050 in living expenses.  Another person had testified

that she had observed Jockisch using drugs in July and August

2000, but Endres failed to call her as a witness, stating that

his calls to her "have not been answered, and I don't have her

here.  I'm sorry *** that's my fault."     

		On the evidence presented, the jury convicted defendant

Daly on all charges.  On June 4, 2001, the trial court sentenced

him to 4 years' probation on the Class 1 felony unlawful delivery counts (counts II and II) and 30 months' probation, including 6

months' home confinement, on the Class 3 felony unlawful distri

bution of a look-alike substance (count I).  This appeal fol

lowed.

II. ANALYSIS

		Defendant argues that he was denied effective assis

tance of counsel because his trial counsel, Endres, labored under

a per se conflict of interest created by Endres's prior represen tation of Jockisch, the State's chief witness.  We agree.  We

review this issue de novo.  People v. Miller, 199 Ill. 2d 541, 544, 771 N.E.2d 386, 387 (2002).     

		The sixth amendment of the Constitution of the United

States guarantees the right to effective assistance of counsel. 

U.S. Const., amend. VI.  This right entitles a criminal defendant

to the undivided loyalty of counsel, free from conflicting

interests or inconsistent obligations.  People v. Flores, 128 Ill. 2d 66, 83, 538 N.E.2d 481, 486 (1989).  Generally, to

succeed on appeal under the test for ineffective assistance of

counsel set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant must demon

strate that he was actually prejudiced.  Defendants need not demonstrate prejudice, however, if a per se conflict exists.  Miller, 199 Ill. 2d at 545, 771 N.E.2d at 388.  The per se conflict rule is designed to avoid (1) unfairness to the defen

dant, who may not be able to determine whether his representation

was affected by the conflict, and (2) putting the honest practi tioner in a position where he may be required to choose between

conflicting duties.  People v. Thomas, 131 Ill. 2d 104, 114, 545 N.E.2d 654, 658 (1989).

		In a situation where defense counsel has previously

represented one of the State's witnesses, a per se conflict of interest exists if the professional relationship between counsel and the witness is contemporaneous with counsel's representation of defendant.  Thomas, 131 Ill. 2d at 111, 545 N.E.2d at 657.  In such a case, "'certain facts about the defense counsel's status, by themselves, *** engender a disabling conflict.'"  (Emphasis addedin original.)"  Miller, 199 Ill. 2d at 545, 771 N.E.2d at 388, quoting People v. MooreLauwson , 163 Ill. 2d 187, 211 (1994); People v. Moore, 189 Ill. 2d 521, 538, 727 N.E.2d 348, 357 (2000) (defense coun

sel's simultaneous representation of the defendant and the

State's witness creates a per se conflict of interest).  

		To determine whether a per se conflict exists, a court should "base the determination on a realistic appraisal of

defense counsel's professional relationship to someone other than

the defendant under the circumstances of each case."  People v. Hernandez, 246 Ill. App. 3d 243, 249, 615 N.E.2d 843, 848 (1993).  A court should not look to the technicalities of the law of offer

and acceptance for guidance.  Hernandez, 246 Ill. App. 3d at 249, 615 N.E.2d at 848.  Where defendant fails to make a showing of a

per se conflict of interest, defendant has the burden to show an actual conflict of interest and to demonstrate prejudice. 

Flores, 128 Ill. 2d at 83, 538 N.E.2d at 487.  

		The Supreme Court of Illinois in People v. Enoch, 146 Ill. 2d 44, 53, 585 N.E.2d 115, 120 (1991), held that defense

counsel's previous representation of the State's witness in a

separate felony matter four years prior to defendant's murder

trial did not establish a contemporaneous professional relation

ship.  In Flores, the court found no contemporaneous professional relationship where defense counsel did not represent the State's

witness at the time of the defendant's trial or "concerning"

defendant's trial.  Flores, 128 Ill. 2d at 83, 538 N.E.2d at 487.  In Hernandez, the Second District held that a contemporaneous professional relationship did not exist between defense counsel

and the State's witness where counsel represented the witness in

her divorce case, which terminated long before defendant's murder

trial.  Hernandez, 246 Ill. App. 3d at 249, 615 N.E.2d at 848.  In these cases, the courts examined the time frame and relevancy

of defense counsel's prior representation of the State's witness. 

The State argues that "contemporaneous professional relationship"

means that defense counsel must be engaged in a simultaneous representation of defendant and the State's witness.  We dis agree.  

		If Endres had represented Jockisch in a divorce case

that terminated long before defendant Daly's felony trial, it

might be possible to conclude there was no per se conflict of interest.  That is not our situation, however.  Unlike the cases

cited by the State, Endres's representation of Jockisch was in a

matter that concerned defendant's trial, a matter of significant relevance to defendant's trial.  This relevance is shown by the

fact that Endres, to properly represent Daly, needed to cross-

examine Jockisch about matters that arose during the very time

that Endres was representing Jockisch--specifically, the charges

against Jockisch, the dismissal of those charges, and any agree

ment or arrangement Jockisch made with law-enforcement authori

ties to achieve dismissal.  Clearly, given that Endres was

representing Jockisch at the time, he could not properly cross-

examine Jockisch about any of these matters.  Thus, another way

of looking at this situation is to view Endres's professional

relationship with Jockisch as continuing indefinitely, at least

to the extent that, in any subsequent case, Endres would ever be

called upon to cross-examine Jockisch about matters occurring

during the time Endres represented Jockisch.  Further, where

charges are dismissed on July 7 in the informant's case, and the

informant allegedly makes a purchase from the defendant on July

24, resulting in charges being filed against the defendant on

November 28, it is not accurate to say the informant's case

terminated "long before" defendant's felony trial.

		Although it seems likely, especially given the diffi

culty the State's Attorney and Endres had in remembering the

transaction, that the December 10, 1999, agreement between the

Schuyler County sheriff and Jockisch was in exchange for the

December 6, 1999, dismissal of charges, that fact is not control

ling.  It is clear that the charges were dismissed, following

negotiations by Endres, because of Jockisch's status as an informant.  Endres's negotiations resulted in Jockisch being out

on the street, attempting to buy drugs from defendant.  A suc

cessful prosecution of defendant would show the wisdom of dis

missing the charges against Jockisch; an unsuccessful prosecution

would cast doubt on the wisdom of that dismissal.  Endres was

placed in the position of attacking his work.  A professional

relationship is ongoing, even if formal representation has ended,

if circumstances exist such that the attorney-client privilege

may be violated.  Endres could not be expected to impeach

Jockisch with information that would void Jockisch's informant

agreements and perhaps lead to retrial on the dismissed charges.  

		Endres's prior representation of Jockisch might affect Endres's performance in ways difficult to detect and demonstrate. 

People v. Woidtke, 313 Ill. App. 3d 399, 409, 729 N.E.2d 506, 513 (2000).  For example, there is a danger that Endres would fail to

conduct a rigorous cross-examination for fear of misusing confi

dential information.  An attorney who represented a witness is

likely, in cross-examining that witness, to avoid areas where he

has personal knowledge, areas where an attorney-client privilege

might exist.  The State also has an interest in preventing

defense counsel from cross-examining a critical State witness on

matters that were the subject of a prior attorney-client rela

tionship.  The situation is "too fraught with the dangers of

prejudice, prejudice which the cold record might not indicate,

that the mere existence of the conflict is sufficient to consti

tute a violation of [defendant's] rights whether or not it in fact influences the attorney or the outcome of the case."  People v. Stoval, 40 Ill. 2d 109, 113, 239 N.E.2d 441, 443 (1968).  

		In a per se conflict of interest case, we will reverse the convictions unless defendant has been made aware of the

conflict and has knowingly waived his right to conflict-free

counsel.  Woidtke, 313 Ill. App. 3d at 409, 729 N.E.2d at 513.  In this case, the record does not indicate and the State does not

allege waiver.  We are compelled to reverse the trial court and

remand for a new trial.  Accordingly, we do not reach defendant's

various other arguments, including an ineffective-assistance-of-

counsel claim based on actual conflict, failure to object to

"recycled" jurors, failure to impeach Jockisch, failure to object

to hearsay, and eliciting damaging testimony. 

III. CONCLUSION

		The same issues that require reversal in the case of

defendant Daly are also present in the cases of defendants

Umphryes, Thompson, Wickert, and Jones.  In other words, Endres

was called upon in his representation of each of these other

defendants, just as he was called upon in his representation of

Daly, to cross-examine Jockisch about matters occurring during

the time Endres was representing Jockisch.  For the reasons we

earlier explained, this is not constitutionally permissible. 

Reversal and remand are required in all cases.  The per se conflict of interest in these cases endangered defendants'

constitutional rights.  Accordingly, we reverse the trial court

and remand for a new trial with directions.   

		Reversed and remanded with directions.

		KNECHT and STEIGMANN, JJ., concur.