People v. Ward

567 N.E.2d 642, 208 Ill. App. 3d 1073, 153 Ill. Dec. 684, 1991 Ill. App. LEXIS 205

Opinions

JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial, defendant, Stephen Ward, was found guilty of aggravated battery on a corrections officer (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(6)) and sentenced to an extended term of 10 years in prison. On appeal, defendant argues that he was denied his sixth amendment right to conduct his own defense. We agree and reverse.

In October 1989, an indictment charged defendant with two counts of aggravated battery. On November 14, 1989, defendant, an inmate at Pontiac Correctional Center, appeared before the court for the first time on that indictment and was advised, inter alia, that he had the right to be represented by counsel and that if he could not afford to hire an attorney of his own choice, someone would be appointed to represent him, namely, the public defender. When defendant responded that he did not want a public defender, but “would appreciate a bar association [lawyer],” the court replied that defendant did not have the choice of who his appointed counsel would be. The court explained to defendant that the county had a public defender who had the responsibility to represent accused people such as defendant. Defendant continued to object to the public defender’s appointment, explaining that, “I’m a two time loser. I feel that a public defender wouldn’t represent me to the fullest.” The court explained again that under the law, defendant had no choice as to who his appointed lawyer would be, stating, “You can refuse a lawyer all together [sic], but you don’t have a choice ***.” Defendant responded, “If it comes to that, that’s what I’ll do then.” The court appointed the public defender anyway and recommended to defendant that he at least speak to his court-appointed counsel before he decided whether to have that counsel represent him. The court then continued the matter for a few days.

On November 22, 1989, defendant next appeared in court, and the public defender appeared as his counsel. Defendant was arraigned and pleaded not guilty, and the case was set for trial in January 1990. Counsel filed various discovery motions on defendant’s behalf, and they were granted.

On December 22, 1989, defendant appeared in court and complained about the public defender’s representation. After listening to these complaints, the trial court found no deficiencies in counsel’s representation. Defendant continued to indicate that he had a problem with his court-appointed counsel, saying, “I don’t feel comfortable with him.” After further discussion, the trial court told defendant that his choices were either to continue with the court-appointed counsel, to hire a private lawyer, or to represent himself as his own lawyer. When defendant continued to complain and indicated that maybe he should represent himself, the court said that there was no need to make a final decision at that hearing and that they could talk about the matter again in January.

On January 8, 1990, a hearing was conducted on defendant’s motion for a change of place of trial, which was filed by his court-appointed counsel, and the motion was denied. Thereafter, the trial court inquired of defendant regarding his court-appointed counsel, and defendant responded that his position was the same as when he was last in court, namely, that he wanted a different lawyer appointed for him. The court again explained that it was not going to take that action, stating that it could discharge defendant’s court-appointed counsel, but that would leave defendant with only two options: first, that he represent himself; or second, that he or his family hire a private attorney to represent him. Defendant responded that he did not have the resources to do that. Defendant then stated, “I am not going to represent myself. I don’t know how to represent myself.” The matter was continued for trial until February, and the court concluded the proceedings by again informing defendant that it had no reason to discharge his court-appointed counsel.

On February 13, 1990, a different representative of the public defender’s office appeared on behalf of defendant. In conversation with the trial court, defendant indicated that he did not like his new court-appointed attorney any better than the previous one, explaining that the court had “to understand it is not my fault because I am getting a wicked lawyer.” After further discussion with the court, defendant said that he would file a motion to represent himself, “but I am not going to be held accountable for anything that goes wrong in the case because I don’t know anything about the law.” In response, the court said that defendant had the right to make the request and a constitutional right to defend himself, but “I would strongly try and discourage anybody from doing that.” The following colloquy then took place:

“DEFENDANT: No, sir, I am forced with no choice.

THE COURT: See, Mr. Ward, we run into that an awful lot now.

DEFENDANT: Look [at] the way the system operate[s].

THE COURT: Defendant comes in and says ‘judge, this whole system is against me. Everybody is working together on this. They are going to get me convicted. I don’t have a chance. I don’t want this public defender. I don’t want the lawyer you appointed. He is not going to represent me. He is going to sell me out. I am going to get convicted.’ Then I say ‘Do you want a lawyer?’ You say, ‘No, judge, I really like to have a lawyer but I want one other than the state pays for.' I say, ‘It has to be a RD.’ I say, ‘Do you want to represent yourself?’ You say, ‘No, judge, if I was convicted, I will say it was a dumb move on my part and the judge shouldn’t have let me do it. I done a bad job on it and got convicted. I shouldn’t have to do anymore time because I represented myself.’ What happens on those cases the Illinois Supreme Court and U. S. Supreme Court has said ‘Hey, that is too bad. If an inmate wants to represent himself and screws up his case and the court tells him what kind of problems there are and he loses and messes up, then he can’t come back later and say I goofed it up.’

DEFENDANT: I am aware of that.

THE COURT: T want to start over. I don’t like the way it turned out without a lawyer. I want to have a lawyer and see how it turns out.’ No, we do it once. Unless there is some kind of error in the way the case was handled you are stuck with whatever the results are.

DEFENDANT: I am aware of that.

THE COURT: Lets [sic] talk about that.

If you are going to represent yourself, I need to know some things.

How far have you gone in school?

DEFENDANT: Tenth grade.

THE COURT: Are you able to read and write?

DEFENDANT: Yes.

THE COURT: Have you worked on any kind of legal motion in any other court cases you have been involved in?

DEFENDANT: Yes.

THE COURT: Could you tell me the type of case or cases that have been involved?

DEFENDANT: Civil matters.

THE COURT: Have you filed some civil lawsuits in your own behalf?

DEFENDANT: Yes.

THE COURT: Have you tried to represent yourself before?

DEFENDANT: No. Never. I was forced like circumstances like this here.

THE COURT: Have you ever tried to do your own legal research in a law library?

DEFENDANT: Tried to do the best I can.

THE COURT: No. Have you tried to research some problems before?

DEFENDANT: No.

THE COURT: Do you know anything about researching the law?

DEFENDANT: No, I don’t.

THE COURT: Have you ever actually gone through a trial where you have represented yourself?

DEFENDANT: No, sir.

THE COURT: Do you know anything about the rules of evidence which apply in a criminal case?

DEFENDANT: No, I don’t.

THE COURT: Have you ever been forced to try and pick a jury for a jury trial?

DEFENDANT: No, I haven’t.

THE COURT: Have you ever called witnesses into court and questioned witnesses?

DEFENDANT: No, sir.

THE COURT: Have you ever made an argument to a jury about what you believe has been proven or not proven?

DEFENDANT: No, sir.

THE COURT: Have you ever prepared what are called legal instructions as to what the law is that would apply to your case that you wanted the judge to give to a jury?

DEFENDANT: No, sir.

THE COURT: This is a case in which you are charged with two counts of aggravated battery. The possible penalties upon conviction would be an additional term of imprisonment for a period of anywhere from two years up to five years, which would carry with it a one year supervised release or parole period. Depending upon your past record, the state could ask for an extended sentence of anywhere from five to ten years, if you were convicted. You could be ordered to pay a fine of up to $10,000.00 in addition to an additional period of imprisonment. If you have a Class II or higher felony conviction within the last ten years, and I can’t remember if you have indicated— what is your present sentence?

DEFENDANT: 29 years.

THE COURT: For a murder?

DEFENDANT: Yes.

THE COURT: Okay. That is within the last ten years?

DEFENDANT: Yes.

THE COURT: Then I think I may have told you before if you would be convicted of aggravated battery, the only possible sentence you could receive would be a consecutive sentence or add-on sentence of anywhere from two years up to ten years in DOC. There would be no possibility other than prison time and it would not start until after you finished your present sentence together with whatever good time you would have and whatever loss of time you would have. All you are looking at is a possibility of more prison time after you have finished your sentence, if you should be convicted. I want you to understand that it is a possibility. Do you understand that?

DEFENDANT: No. I don’t understand.”

Defendant then proceeded to once again complain about being put to the choice of either representing himself or being forced to trial with an attorney from whom he could not get “honest treatment.” The trial court patiently discussed this subject further and again informed defendant that there was no reason why his present court-appointed counsel could not and would not do a good job on his behalf. The court then discussed with counsel possible dates for trial, and the following discussion took place:

“THE COURT: Mr. Ward, after considering your request to represent yourself based upon the theory that the cases — and you are saying we already figure the case is a loser and I might as well mess it up myself—

DEFENDANT: I am not going to mess it up. That is what you are saying.

THE COURT: What I am saying, Mr. Ward, based upon your educational background even though you have filed civil matters in your behalf, based upon your having no trial experience, no research experience, having confirmed with me you do not understand or know what the procedures would be, I do not have to permit you to represent yourself because I have to find that you are capable of doing that. I find specifically for the record, after considering your responses, that you are not capable of doing it, that you are kind of entering into that on the basis that well, I at least will be more interested in my case than the lawyer will be and I will do a better than the lawyer will do, I am not convinced that is true and, accordingly, I am not going to discharge court appointed counsel. So you will have an attorney representing you.”

On April 2, 1990, a hearing was held on a series of motions defendant filed pro se on March 23, 1990, requesting that the court discharge his court-appointed counsel. As noted by the court, those motions again asserted defendant’s dissatisfaction with his court-appointed counsel and his desire to have the court appoint a third lawyer to represent him. The trial court again denied defendant’s request for further relief, reaffirmed its previous findings that defendant was not capable, by virtue of. training or experience or skills to defend himself, and concluded that defendant “very much needs the assistance of counsel.”

On April 9, 1990, defendant’s case was called for trial and defendant appeared in open court and claimed to have no lawyer. When the court pointed out that defendant had court-appointed counsel present, defendant responded that he could not be defendant’s lawyer because the lawyer “ain’t competent.” More discussion then took place between the court and defendant regarding his displeasure with his court-appointed counsel, during which defendant repeatedly interrupted the trial court, requiring the court to inform defendant that if he did not control himself, he would be held in the side room. Defendant said he would prefer that, but later declined to waive his right to be present. Further discussion ensued regarding defendant’s representing himself, but the court found his behavior too disruptive to permit him to do so. (We need not concern ourselves with this later behavior, however, because for the reasons hereafter stated, at the February 13 hearing defendant was improperly denied his right to represent himself. His subsequent disruption was a manifestation of his displeasure with the court-appointed counsel whose services he was continuously rejecting. We decline to speculate as to how defendant would have conducted himself had he been permitted to proceed pro se.)

A trial was finally held, and several correctional officers testified about the incident in which defendant struck one correctional officer above the eye, knocking him to the ground, and requiring four stitches. After the State rested, the defense presented no evidence. The jury returned verdicts finding defendant guilty of aggravated battery, and he ultimately was sentenced to 10 years in prison.

In People v. Silagy (1984), 101 Ill. 2d 147, 461 N.E.2d 415, the Illinois Supreme Court addressed the issue of a defendant’s right to conduct his own defense and stated the following:

“It is clear that the sixth amendment to the Constitution of the United States [citation] provides for the right of self-representation in criminal proceedings. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525; see also, Ill. Const. 1970, art. I, sec. 8.) The ‘ “right of a defendant to represent himself, when his choice is intelligently made, is as basic and fundamental as his right to be represented by counsel.” ’ [Citations.] The Supreme Court, in Faretta, noted the ‘nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.’ [Citation.] Although a court may consider his decision unwise, if it is freely, knowingly and intelligently made, that decision must be accepted out of ‘that respect for the individual which is the life-blood of thé law.’ ” Silagy, 101 Ill. 2d at 179-80, 461 N.E.2d at 431.

See also People v. Gibson (1990), 136 Ill. 2d 362, 374-75, 556 N.E.2d 226, 231.

The record in the present case makes clear that when defendant was informed by the trial court that his only choices were either to represent himself or to continue with court-appointed counsel, defendant stated that he wished to represent himself. On this record, the court’s decision that defendant had to choose between these two alternatives was entirely correct; the problem arose only when the court would not abide by the choice defendant made.

Supreme Court Rule 401 (107 Ill. 2d R. 401) requires that a court shall not accept a waiver of counsel until it has addressed defendant personally in open court, informing him of and determining that he understands the nature of the charge, the minimum and maximum sentence prescribed by law (including sentences the defendant may be subjected to because of prior convictions or consecutive sentences), and last, that defendant has a right to counsel and, if indigent, to have counsel appointed for him. Because relinquishment of the right to counsel is such a critical step for a defendant to take, the court in People v. Davis (1988), 169 Ill. App. 3d 1, 6, 523 N.E.2d 165, 167-68, wrote the following:

“ ‘[A] defendant may competently waive counsel if such an election is voluntary and constitutes “a knowing and intelligent relinquishment or abandonment of a known right or privilege.” ’ People v. Baker (1982), 92 Ill. 2d 85, 91, quoting Edwards v. Arizona (1981), 451 U. S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1883.

* * *

In ruling on a motion for self-representation, the trial court must determine whether the defendant has the requisite capacity to make an intelligent and knowing waiver of his right to counsel. The criteria generally considered in making that decision include the defendant’s age, level of education, mental capacity and prior involvement, if any, in legal proceedings.”

To ensure that a defendant’s request for self-representation is an intelligent and knowing waiver of his right to counsel, we agree with Professors Wayne R. LaFave and Jerold H. Israel that it would be desirable for a trial court to inform defendant of the following matters:

(1) presenting a defense is not a simple matter of telling one’s story, but requires adherence to various technical rules governing the conduct of a trial;

(2) a lawyer has substantial experience and training in trial procedure and the prosecution will be represented by an experienced attorney;

(3) a person unfamiliar with legal procedures (a) may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, (b) may not make effective usage of such rights as the voir dire of jurors, and (c) may make tactical decisions that produce unintended consequences;

(4) the defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation;

(5) the effectiveness of his defense may well be diminished by his dual role as attorney and accused;

(6) defendant will receive no special consideration from the court;

(7) defendant will receive no extra time for preparation or greater library time (if in prison);

(8) a lawyer can render important assistance (a) by determining the existence of possible defenses to the charges against defendant, (b) through consultations with the prosecutor regarding possible reduced charges or lesser penalties, and (c) in the event of a conviction, by presenting to the court matters which might lead to a lesser sentence;

(9) in the event the court accepts defendant’s decision to represent himself, defendant will not be given an opportunity to change his mind during trial; and

(10) if the court in its discretion is not going to appoint standby counsel, to specifically inform the defendant that there will be no standby counsel to assist him at any stage during trial.

See W. LaFave and J. Israel, 2 Criminal Procedure §§11.5(a), (b), (c), at 42-45 (1984) (hereinafter LaFave and Israel).

As the court noted in Silagy, the defendant’s choice to represent himself must be “intelligently made.” (Silagy, 101 Ill. 2d at 179, 461 N.E.2d at 431.) While the trial court must determine that the defendant has the requisite capacity to make an intelligent and knowing waiver of his right to counsel, the trial court is not permitted to decide whether that decision is wise. However, that is essentially what the trial court decided in this case when it stated that, based upon defendant’s limited background, he was not capable of representing himself. The trial judge specifically noted, “I do not have to permit you to represent yourself because I have to find that you are capable of doing that.” This is an incorrect statement of the law, but an understandable one in view of some confusion regarding this subject in various appellate court decisions.

The Fifth District Appellate Court in People v. Siler (1987), 154 Ill. App. 3d 102, 506 N.E.2d 756, recently wrote regarding the trial court’s inquiry into a defendant’s ability to represent himself and stated the following: “A careful inquiry must be made to determine defendant’s ability to conduct his own defense, focusing on his age, level of education, mental capacity, and prior experience with legal proceedings. (People v. Graves (1984), 134 Ill. App. 3d 473, 476, 480 N.E.2d 1142, 1144.)” Siler, 154 Ill. App. 3d at 108, 506 N.E.2d at 760.

In People v. Graves (1984), 134 Ill. App. 3d 473, 480 N.E.2d 1142, the First District Appellate Court stated the following: “A careful inquiry must be made to determine defendant’s ability to conduct his own defense, focusing on his age, level of education, mental capacity, and prior experience with legal proceedings. (People v. Kavinsky (1980), 91 Ill. App. 3d 784, 414 N.E.2d 1206.)” Graves, 134 Ill. App. 3d at 476, 480 N.E.2d at 1144.

In People v. Kavinsky (1980), 91 Ill. App. 3d 784, 414 N.E.2d 1206, the First District Appellate Court wrote the following: “In waiver of counsel cases, a careful inquiry must be made to determine the defendant’s ability to conduct his own defense, focusing on his age, level of education, mental capacity, and prior experience with legal proceedings. People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 49-50, 372 N.E.2d 1014.” Kavinsky, 91 Ill. App. 3d at 798, 414 N.E.2d at 1217.

In People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 372 N.E.2d 1014, the First District Appellate Court wrote the following:

“[I]n addition to engaging in a colloquy with the defendant to advise him of his right to counsel, the court must still determine for itself whether the accused has the requisite capacity to effectuate an intelligent waiver of his right. The objective criteria commonly utilized by courts to make this determination are the defendant’s age [citation], level of education [citation], mental capacity [citation] and prior involvement, if any, in legal proceedings [citation]. On the basis of the surrounding circumstances and these relevant factors, the trial court must make a subjective evaluation of whether an accused was aware of what he was doing.” (Vanderwerff, 57 Ill. App. 3d at 49-50, 372 N.E.2d at 1019.)

Clearly, the Vanderwerff court was discussing inquiries the trial court should make when determining whether a defendant is making “an intelligent relinquishment or abandonment of a known right or privilege.” These inquiries concerned waiver-, they had nothing to do with inquiring into the defendant’s ability to conduct his own defense, as the courts in Kavinsky, Graves, and Siler stated. Insofar as these cases suggest, as did the remarks of the trial court in the present case, that “a careful inquiry must be made to determine the defendant’s ability to conduct his own defense” (Kavinsky, 91 Ill. App. 3d at 798, 414 N.E.2d at 1217), we decline to follow them. Instead, we agree with Professors LaFave and Israel that there are three possible grounds for denying a defendant’s request to proceed pro se.

First, the request might come so late in the proceedings that to grant it would be disruptive of the orderly schedule of proceedings. We caution, however, that when a request to proceed pro se is made and there is no request for additional time to prepare, a motion to proceed pro se should generally be viewed as timely as long as it is made before trial. LaFave and Israel, §11.5(d), at 47.

Second, a trial judge may terminate self-representation by a defendant who engages in serious and obstructionist misconduct, as noted by the Court in Faretta v. California (1975), 422 U.S. 806, 834 n.46, 45 L. Ed. 2d 562, 581 n.46, 95 S. Ct. 2525, 2541 n.46. While this authority ordinarily would be exercised only after a defendant has begun to represent himself, in exceptional situations, as noted by Professors LaFave and Israel, a defendant’s behavior in the course of seeking to obtain self-representation may in itself be disruptive and thereby justify denying his motion to proceed pro se. (LaFave and Israel, §11.5(d), at 47-48.) As we observed earlier, defendant’s behavior in the present case did not approach being disruptive or obstructionist until after his motion to proceed pro se had been erroneously denied.

Third, defendant’s request for self-representation may be denied when, despite the court’s efforts to explain the consequences of waiver, the court finds the defendant is unable to reach the level of appreciation needed for a knowing and intelligent waiver. (LaFave and Israel, §11.5(d), at 47-48.) We emphasize, however, that this is an inquiry into the defendant’s ability to make a knowing and intelligent waiver of his right to counsel; it is not an inquiry into defendant’s ability to do an appropriate job defending himself at trial. As Professors LaFave and Israel have noted, “trial courts hesitate to deny the request of an adult defendant unless he appears to be suffering from some significant mental disability.” (La-Fave and Israel, §11.5(d), at 48.) We agree that this standard should guide the trial courts as they make such inquiries and resolve the question of whether defendant can make an intelligent waiver of his right to counsel.

Once the trial court (1) has addressed a defendant in open court who wishes to proceed pro se, (2) has appropriately informed him of the rights he is waiving and the potential disadvantages of his action, as we have discussed in this opinion, and (3) finds that defendant is knowingly waiving his right to counsel, then the court should make its findings accordingly and, thereafter, respect the defendant’s decision to exercise his constitutional right of self-representation. That right may not be thwarted by the trial court’s opinion that defendant’s decision is ill-advised, unwise, or unsound, however correct that opinion may be.

Because the trial court in the present case denied defendant his constitutional right to self-representation on the ground that the court viewed defendant as incapable of adequately representing himself, defendant’s conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded.

SPITZ, J., concurs.