dissent">Mr. PRESIDING JUSTICE CRAVEN,

dissenting:

The majority opinion dismisses the defendant’s argument that he was denied his sixth amendment rights of effective assistance of counsel as being lacking in persuasion. I do not agree.

The defendant was represented by the same counsel that represented two co-defendants — the Echols brothers. That multiple representation, upon this record, necessarily constituted a conflict of interest, the substantive effect of which was to deprive the defendant of the effective assistance of counsel.

The general rule may be paraphrased to say that a defendant is denied his sixth amendment right to counsel if, unknown to the defendant, his counsel is in a position where his full talents as a vigorous advocate for the defendant alone is restrained. (Glasser v. United States (1941), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457.) For this rule to have application, the record must show that, at the time counsel was appointed, there existed a possibility of prejudice from joint representation. (See People v. Husar (1974), 22 Ill. App. 3d 758, 318 N.E.2d 24.) Here, the conflict of interest by one counsel’s representation of both the Echols brothers and the defendant at the same trial was clearly exemplified by several things. First, counsel’s inability to cross-examine the State’s fingerprint expert with regard to his misidentification of the defendant as the person whose prints were identified as being on the broken glass at the site of the burglary; second, the inability to vigorously cross-examine the accomplice witnesses; and, third, the strategic inadvisability of challenging the eyewitness identification testimony given, which while weak as to the defendant, was strong and such challenge would have been unwise as to the Echols brothers. The mixup, or at least the confusing testimony with reference to the fingerprint made, could probably never have been foreseen. It is clear, however, that the defense counsel and the court knew, or should have known, of both the accomplice testimony and the eyewitness testimony. Thus, from the inception of this trial, and certainly from the date of the appointment of counsel, there existed the possibility of prejudice by reason of the joint or multiple representation. Within the rules stated, the defendant was deprived of the effective assistance of counsel and I would reverse this conviction and remand for a new trial.

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