People v. Tucker

• Court: Appellate Court of Illinois
• Decided: May 27, 2008
• Docket: 1-06-2816 Rel
• Status: Published

Opinion

FIRST DIVISION May 27, 2008

No. 1-06-2816

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) LARRY TUCKER, ) Honorable ) Marcus R. Salone, Defendant-Appellant. ) Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court:

This case concerns a constitutional right so highly valued

that harmless error analysis will not be applied to its

violation. We refer to a criminal defendant’s right to retained

counsel of his choice.

Defendant Larry Tucker was convicted by a jury of two counts

of criminal sexual assault. He was sentenced to two consecutive

four-year terms in prison.

The main issue on appeal is whether the trial court abused

its discretion in denying defendant’s motion for a continuance to

substitute counsel after a brief inquiry about the circumstances

of the request. Defendant also contends the trial court

erroneously instructed the jury pursuant to IPI 3.11, and the

trial judge’s instructions to the jury unduly pressured a

minority juror. We reverse and remand.

FACTS 1-06-2816

At trial, defendant’s daughter, L.B., testified defendant

sexually assaulted her on December 18 or 19, 2004, and twice a

week for several months afterward. The last assault occurred on

April 16, 2005, L.B.’s 14th birthday. On May 15, 2005, L.B. told

her mother defendant had raped her. L.B.’s friend and cousin

testified L.B. told them her father had raped her. Two

detectives testified defendant made unmemorialized, incriminating

statements about an incident that occurred in January 2005. The

defendant told detectives L.B. had asked him about sex, and he

"showed" her by touching his penis to her vagina.

The defense presented evidence that on August 3, 2005, L.B.

told a defense investigator she had fabricated the allegations.

She signed a typed version of her statement. L.B. returned to

her original statement at trial. She testified she had lied to

the investigator because her father’s friends had threatened her.

DECISION

Defendant contends the trial court abused its discretion

when it denied his request to change counsel. He contends the

court failed to conduct an adequate inquiry into the

circumstances surrounding his request.

On the date scheduled for defendant’s jury trial, Mark

Gottreich, defendant’s privately retained attorney, told the

trial judge he had "lost contact with [his] client" since the

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last court date, approximately three months earlier. He told the

court defendant did not want him as his attorney and had hired a

new attorney. The judge replied, "Oh, well, what can I tell you?

It may be a basis for some further review. No, you’re going to

trial today, sir."

When the case was recalled later that day, the following

colloquy took place:

"THE COURT: *** Mr. Tucker, you said that

when this case was originally called--I don’t know

if it was you or counsel who indicated that you

had retained another attorney.

THE DEFENDANT: Yes.

THE COURT: Who is that?

THE DEFENDANT: Jerry Lipschultz (phonetic

spelling) I believe. My brother know who he is

out there.

THE COURT: Have you ever talked to that

person?

THE COURT: Okay. Where did you talk to that

person? Where were you when you had that

conversation?

THE DEFENDANT: Over the phone. My family

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talked to him.

THE COURT: You’ve not talked to him?

THE DEFENDANT: Yes. He told me to call him

today after court.

THE COURT: Okay. So, to the best of your

knowledge, he has not been given any money?

THE DEFENDANT: No. He told me to call him

after the Court today.

THE COURT: Okay. He was not here today?

THE DEFENDANT: No.

THE COURT: Do you know what he looks like?

THE COURT: Okay. Well, I know a Lipschultz,

who’s not present. And it should also be

indicated that no one other than counsel of record

has stepped up on behalf of Mr. Tucker here today.

All right.

MR. GOTTREICH [Defense Attorney]: Judge, just

for the record, what my client indicated to me

today was that he wanted a different attorney.

That was also indicated by his family who’s here

today. And I made that apparent to the Court

earlier and asked to withdraw based on that.

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THE COURT: I understand. This matter has

been set for trial on at least two other

occasions."

Following the above discussion, the parties proceeded to the

jury trial.

The sixth amendment to the United States Constitution

provides: "[i]n all criminal prosecutions, the accused shall

enjoy the right *** to have the Assistance of Counsel for his

defense." U.S. Const., amend. VI. The right to retained counsel

of one’s choice "has been regarded as the root meaning of the

constitutional guarantee" in the sixth amendment. United States

v. Gonzalez-Lopez, 548 U.S. 140, __, 165 L. Ed. 2d 409, 419, 126

S. Ct. 2557, 2563 (2006), citing Wheat v. United States, 486 U.S.

153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697

(1988); Andersen v. Treat, 172 U.S. 24, 30, 43 L. Ed. 351, 353,

19 S. Ct. 67, 70 (1898).

The right does not depend on whether defendant received a

fair trial or was prejudiced by the representation he received.

Gonzalez-Lopez, 548 U. S. at __, 165 L. Ed. 2d at 419, 126 S. Ct.

at 2563. Deprivation of the right is a "structural error" not

subject to harmless error review. Gonzalez-Lopez, 548 U. S. at

__, 165 L. Ed. 2d at 420, 126 S. Ct. at 2564-65. That is,

"In sum, the right at stake here is the right

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to counsel of choice, not the right to a fair

trial; and that right was violated because

the deprivation of counsel was erroneous. No

additional showing of prejudice is required

to make the violation ‘complete.’ "

Gonzalez-Lopez, 548 U. S. at __, 165 L. Ed.

2d at 418, 126 S. Ct. at 2562.

The right to counsel of choice, while fundamental, may be

limited in some cases. A criminal defendant has no right to

select an attorney he cannot afford, or one who is not a member

of the bar, has a conflict of interest, or declines to represent

him. People v. Howard, 376 Ill. App. 3d 322, 335, 876 N.E.2d 36

(2007), citing Wheat, 486 U.S. at 159, 100 L. Ed. 2d at 149, 108

S. Ct. at 1697. A defendant who abuses the sixth amendment in an

attempt to delay trial and thwart the effective administration of

justice may forfeit his right to counsel of choice. Howard, 376

Ill. App. 3d at 335; People v. Childress, 276 Ill. App. 3d 402,

413, 657 N.E.2d 1180 (1995).

It is within the trial court’s discretion to determine

whether the defendant’s right to selection of counsel unduly

interferes with the orderly process of judicial administration.

People v. Burrell, 228 Ill. App. 3d 133, 142, 592 N.E.2d 453

(1992). A determination of the issue turns on the particular

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facts of each case. People v. Little, 207 Ill. App. 3d 720, 724,

566 N.E.2d 365 (1990).

"In balancing the judicial interest of trying the case with

due diligence and the defendant’s constitutional right to counsel

of choice, the court must inquire into the actual request to

determine whether it is being used merely as a delaying tactic."

Burrell, 228 Ill. App. 3d at 142. Factors to be considered

include: whether defendant articulates an acceptable reason for

desiring new counsel; whether the defendant has continuously been

in custody; whether he has informed the trial court of his

efforts to obtain counsel; whether he has cooperated with current

counsel; and the length of time defendant has been represented by

current counsel. Childress, 276 Ill. App. 3d at 411; Burrell,

228 Ill. App. 3d at 142. The court does not abuse its discretion

in denying a motion if new counsel is not specifically identified

or does not "stand ready, willing, and able" to make an

appearance on defendant’s behalf. Burrell, 228 Ill. App. 3d at

142.

Defendant contends there is no evidence he requested new

counsel in order to delay the proceedings. Defendant informed

the court he had hired new counsel. He identified the new

attorney by name. Defendant had been in continuous custody and

had not requested any trial continuances prior to the motion for

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new counsel. The case had been set twice for a bench trial. On

both dates, the case was continued because one of the State’s

witnesses was unavailable. On the last date before trial, the

parties participated in a 402 conference, after which a date was

set for jury trial. All other continuances in the case were by

order of court or by agreement of the parties.

The State contends defendant’s request, made on the day of

trial and nine months after the case had been placed on the

docket, threatened the efficient administration of justice. The

trial court’s inquiry revealed: no new counsel stood ready and

able to make an appearance on defendant’s behalf; defendant had

not met with or paid his newly-"hired" attorney; and defendant’s

case had been set for trial on at least two separate occasions.

The State contends defendant failed to articulate a reason

why he wanted new counsel and never filed a motion for a

continuance or specified a length of time for a continuance. The

defendant had been represented by Gottreich’s firm for eight

months before defendant requested new counsel. The State

suggests defendant may have wished to delay his trial in hopes

that L.B. would refuse to testify against him.

Several decisions have held a trial court erroneously denied

the defendant’s motion for a continuance to substitute counsel by

failing to conduct an adequate inquiry into the request.

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In People v. Bingham, 364 Ill. App. 3d 642, 644, 847 N.E.2d

903 (2006), the defendant told the trial court he wished to be

represented by Earl Washington, who was representing defendant in

other pending cases. The record showed Washington had contacted

the assistant state’s attorney the previous day, although the

subject matter of the message was unclear. The case had been

pending only three months. No prior continuances or prior

motions had been filed. The court held the trial court "should

have conducted an inquiry into the circumstances and the purposes

of the motion before making its ruling." Bingham, 364 Ill. App.

3d at 645. The conviction was reversed.

In People v. Little, 207 Ill. App. 3d 720, 566 N.E.2d 365

(1990), the defendant moved for a continuance on the date of

trial because the private counsel retained by his family was

misinformed of the trial date and was not present in court. He

told the court the attorney had been paid for his services. The

defendant was in custody during the period between his arrest and

the date of trial and therefore was compelled to rely on his

family to retain private counsel. Little, 207 Ill. App. 3d at

727. None of the previous continuances was requested by the

defendant. The trial court conducted no inquiry into the truth

or falsity of defendant’s assertions, nor did the court ask how

long a continuance would be necessary to secure retained

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counsel’s appearance. Little, 207 Ill. App. 3d at 727. The

conviction was reversed.

In People v. Washington, 195 Ill. App. 3d 520, 523-24, 552

N.E.2d 1067 (1990), the public defender informed the trial court

on the day of trial that the defendant’s family had retained an

attorney for the defendant, who asked for a week-long

continuance. The appellate court held, "[i]f the trial court

suspected that defendant’s representation that a private attorney

had been hired was being used as a delaying tactic, it very

easily could have confirmed or dispelled its suspicion by

inquiring further into the employment of the attorney."

Washington, 195 Ill. App. 3d at 526. The conviction was

reversed.

In People v. Green, 42 Ill. 2d 555, 248 N.E.2d 116 (1969),

the defendant told the trial court his privately retained

attorney was in Washington on a case. He said the attorney had

been paid by his church. The supreme court held the trial court

erred in failing to inquire into defendant’s assertions. The

court said, "[i]t would have been a simple matter to verify

defendant’s statement." Green, 42 Ill. 2d at 557. The

See also People v. Basler, 304 Ill. App. 3d 230, 232, 710

N.E.2d 431 (1999), affirmed as modified and remanded, 193 Ill. 2d

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545, 740 N.E.2d 1 (2000) (conviction reversed because trial court

failed to ask the defendant if she had a specific attorney in

mind or inquire into the reasons for the request); People v.

Ritchie, 66 Ill. App. 2d 417, 418, 213 N.E.2d 306 (1966) (the

defendant, who had been continuously incarcerated, believed and

represented to the court that his family or friends were

obtaining private counsel; there were no facts showing the

defendant’s purpose was dilatory; the conviction was reversed).

In this case, as in Green, Little, and Washington, defendant

claimed someone else hired a private attorney to represent him;

the private attorney had not filed an appearance; and the court

did not attempt to verify the employment of the private attorney.

As in Bingham and Washington, the defendant identified the new

attorney by name. As in Ritchie, the defendant was continuously

incarcerated and relied on his family to retain an attorney for

him. There is no evidence in the record that defendant did

anything to delay the court proceedings prior to the trial day.

Defendant had not requested any continuances prior to his request

to substitute counsel. There is no indication the defendant or

his family could not afford to hire new private counsel. Nor is

there any explanation of how a lawyer can "lose contact" for the

three months before trial with a client who is in jail across

from the courthouse.

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We recognize the presence of factors that apparently led the

trial court to insist that trial proceed with Gottreich as

defense counsel. The case had been pending nine months. It was

set for trial on the day defendant requested a change of lawyer.

The defendant told the trial court the new lawyer had not been

paid. The new lawyer had not filed an appearance and had not

appeared in court. Some of these factors turn up in decisions

that find no violation of the right to counsel.

In Burrell, 228 Ill. App. 3d at 143, the defendant had asked

for a new attorney four months before the trial date. The trial

court informed him the only way he would get another attorney was

if he retained private counsel, which defendant did not do. On

the day of trial, defendant told the trial court he had just met

a private attorney who was willing to take his case. The

attorney did not file an appearance or inform the court of his

involvement with the case. The attorney was in court that

morning and said nothing about representing the defendant. The

appellate court affirmed the trial court’s denial of defendant’s

motion. The court held, "[a]lthough defendant was in continuous

custody for eleven months, he had ample time to retain private

counsel." Burrell, 228 Ill. App. 3d at 143.

In People v. Antoine, 335 Ill. App. 3d 562, 577, 781 N.E.2d

444 (2002), at the hearing on his motion for a new trial, the

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defendant told the court he wanted to fire his attorney,

expressing dissatisfaction with her performance. Defendant first

told the court he was "going to retain" another attorney, then

said he was "hiring an attorney," then said he had "already

retained an attorney." He identified the attorney as Robert

Willis and said Willis asked him to get a continuance. He said

he had paid Willis $6,000. The trial court noted Willis had not

filed an appearance in the case and was not present in court.

The appellate court held it was "troubled by the fact that the

trial court did not attempt to verify Antoine’s final contention

that he had already retained an attorney." Antoine, 335 Ill.

App. 3d at 582. Nevertheless, given the defendant’s changing

versions about whether he had retained counsel, and the complete

lack of evidence that Willis was ready, willing, or able to take

Antoine’s case, the trial court did not abuse its discretion in

failing to grant a continuance. Antoine, 335 Ill. App. 3d at

582.

Here, we focus on the trial court’s failure to inquire more

thoroughly into defendant’s request. Among other things, the

trial judge did not ask the defendant why he wanted another

lawyer, what he meant when he said he "hired" Jerry Lipschultz,

or whether he could afford to hire Lipschultz. Nor did he ask

defendant’s family members, who were present in the courtroom,

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about any arrangements to hire Lipschultz. The judge made no

attempt to contact Lipschultz or Lipschultz’s office to learn

whether he was willing and able to represent the defendant. He

failed to ask Gottreich why he had lost contact with the

defendant during the three months leading up to the trial date, a

time when defendant was in custody. The trial court made no

finding that defendant’s attempt to hire a new lawyer was a

delaying tactic and not in good faith.

Given the failure of the trial court to inquire into the

"circumstances and purposes" of the defendant’s desire to change

lawyers, Bingham, 364 Ill. App. 3d at 645, viewed in light of the

right to retained counsel of one’s choice being "regarded as the

root meaning of the constitutional guarantee" in the sixth

amendment, Gonzalez-Lopez, 548 U.S. at __, 165 L. Ed. 2d at 419,

126 S. Ct. at 2563, we conclude reversible error was committed

and a new trial is required.

The other issues raised by the defendant are unlikely to

recur in a retrial of this case and need not be considered.

For the reasons set forth the convictions against the

defendant are reversed and the cause is remanded for a new trial

consistent with this opinion.

Reversed and remanded.

CAHILL, P.J., and R. GORDON, J., concur.