People v. Ware

407 Ill.App.3d 315

943 N.E.2d 1194

348 Ill.Dec. 284

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Maurice WARE, Defendant–Appellant.

No. 1–09–0338.

Appellate Court of Illinois, First District, Sixth Division.

Feb. 10, 2011.

Anita Alvarez, State's Attorney (Alan J. Spellberg, Rimas F. Cernius, Nancy Colletti, of counsel), for Appellee.Office of the State Appellate Defender, Patricia Unsinn, Deputy Defender (Christofer R. Bendik, Assistant Appellate Defender), for Appellant.

[348 Ill.Dec. 287 , 407 Ill.App.3d 316] OPINION

Justice ROBERT E. GORDON delivered the judgment of the court, with opinion.

Following a jury trial in which he represented himself pro se, defendant Maurice Ware was convicted of attempted first degree murder and aggravated battery. Defendant's oral motion for a new trial was denied. Defendant was sentenced to 25 years' imprisonment. Defendant appeals, arguing (1) that the trial court denied defendant his constitutional right to counsel by failing to substantially comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) prior to allowing defendant to proceed to trial pro se; (2) that the trial court erred in denying defendant standby counsel; and (3) that the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during jury selection by not properly inquiring into the four Zehr factors ( People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984)). We affirm.

BACKGROUND

On August 10, 2006, defendant was arrested after an altercation between defendant and Quintin Johnson, his neighbor, during which Johnson was stabbed in the back of the head. Defendant was indicted on charges of attempted first degree murder (720 ILCS 5/8–4(a), 9–1 (West 2006)) and aggravated battery (720 ILCS 5/12–4(a) (West 2006)).

Pre-trial Proceedings

Judge Wadas

Defendant was first assigned to the courtroom of Judge Kenneth Wadas, where, on September 20, 2006, Assistant Public Defender (APD) Richard Kruss was appointed to represent defendant. On the same day, defendant requested a different attorney. Defendant told the court that he was “really not comfortable with” APD Kruss, and that APD Kruss “scared [him] literally to death.” At defendant's request, APD Kruss filed a petition for substitution of judge, which was granted.

[943 N.E.2d 1198 , 348 Ill.Dec. 288]

Judge Salone

On September 21, 2006, defendant's case was reassigned to Judge Marcus R. Salone, and APD Lakshmi Jha was appointed to represent defendant on that date. On October 5, 2006, APD Jha obtained an order from the trial court allowing defendant access to the law library at the county jail where he was being held. On January 9, 2007, APD Jha obtained a number of orders from the trial court, including orders allowing defendant phone calls to APD Jha twice a week and access to the law library twice a week.

On February 23, 2007, defendant told the trial court that he wished to represent himself. The court admonished defendant that he could be sentenced up to 30 years for attempted first degree murder and that he would be held to the same standard as a licensed attorney; the court “strongly discourage[d]” defendant from representing himself. Defendant responded that the only way he could be discouraged from representing himself was if he was able to have all of the same documents that APD Jha had; the court noted that there were some documents that could not be provided to defendant. The trial court also tested defendant regarding several legal concepts; defendant said that the court was “making [him] feel like a fool,” but the court indicated that its purpose was to demonstrate defendant's lack of knowledge. It noted that “[t]here's a whole lot of innocent folks serving a lot of time in the joint because they felt they were the only ones who could represent themselves.” However, defendant persisted in representing himself and the court granted APD Jha's motion to withdraw from the case during the February 23, 2007, court date.

Defendant made an oral demand for trial. APD Jha tendered all of the discovery that she had received, with appropriate redactions, to defendant. The State pointed out that there were several items of open discovery remaining, and that if defendant demanded trial, he would not have complete discovery. The case was continued for one week to obtain the missing discovery.

On March 2, 2007, defendant told the court that he had lost his legal papers because of “some extreme things going on” at the jail and requested an “assistant to counsel.” The trial court told defendant that it would not appoint him an attorney as an assistant, but could appoint an attorney if he desired an attorney to represent him at trial. Defendant said that “all this here is a charade,” and that “[a]ll this stuff is being manufactured against” him. He said that he needed someone “who can come and see me, stay in constant communication with me and let me know the progress of the case”; he clarified that he was seeking an attorney who would communicate with him “to the point where they know me as an individual, not as a case file.”

Defendant further stated that “[t]his is a game these people are playing with me in here. * * * These people are unfeeling. These people don't have no feelings. * * * These people don't care nothing about the public, they only care about their own self-seeking self-interest and I know it and you know it.” The trial court asked defendant whether he wanted a lawyer, and defendant said that he did. APD Jha advised the court that if she was being reappointed, she was not prepared to proceed to trial because of the missing discovery. APD Jha was reappointed to represent defendant and the case was continued.

On April 2, 2007, APD Jha acknowledged receipt of additional discovery and requested the court enter an order for a forensic clinical examination (BCX) to determine whether defendant was fit to

[348 Ill.Dec. 289 , 943 N.E.2d 1199]

stand trial. Defendant was not pleased with that request and told the court that he did not want APD Jha to represent him, stating that he did not feel as though she had his best interests at heart. The trial court informed defendant that it would not be able to assign another APD, and defendant responded that he would then proceed pro se. The trial court then allowed APD Jha to withdraw and admonished defendant of the minimum and maximum sentences for the crimes with which he had been charged and admonished that if defendant represented himself, “[he] will have to comply with the rules of evidence and conduct [him]self in a manner in which those who have been licensed to practice conduct themselves.”

The trial court advised defendant that it had received a phone call from the law librarian, indicating that defendant had made threats and requesting that his access to the law library be reduced to once a week. Defendant told the court that he had composed a letter to APD Jha telling her of his unhappiness with her representation, and he told the court that there was a pattern of people preventing him from accessing the law library. The State then requested a BCX based on defendant's conduct in court.

On April 9, 2007, defendant, acting as his own attorney, requested investigators and legal assistance for “motions and advice and stuff like that”; defendant emphasized that he was not asking that a public defender be appointed to represent him. The trial court denied his request, saying that the only investigator available was through the public defender's office. The trial court asked defendant whether his issue was with APD Jha or with the public defender's office as a whole. Defendant responded that he only had problems with APD Jha. The trial court advised defendant that if he was to reappoint the public defender, defendant would be assigned APD Jha again, and suggested that defendant speak to Amy Campanelli, a supervisor at the public defender's office, to determine if she could assign his case to a different APD.

On April 17, 2007, defendant accepted receipt of additional discovery tendered by the State, asking whether they were “under Rule 412(C), (D), and (E)”; ¹ the State did not respond to defendant's question. Defendant requested a continuance so that he could review the documents and obtain counsel. On May 30, 3007, defendant told the court that he needed assistance of counsel, and when the court asked if an assistant public defender should be appointed, defendant responded: “Look like I'm forced to have to go along with that because I have no resources in my position right now. In the position I'm in right now, I don't have the resources to do the things I need to do.” Defendant also said that if APD Jha was assigned as his attorney, “it would be probably under conditions,” and stated that he was most concerned about disclosure and communication, quoting several rules of professional conduct. Defendant appeared again the next day, and advised that he would accept APD Jha “under strict conditions,” including that she make no stipulations with the State without defendant's knowledge and consent, that she visit defendant at the jail between court dates, and that she “absolutely and imperatively defend and protect [defendant's] rights.” APD Jha was reappointed on May 31, 2007.

[943 N.E.2d 1200 , 348 Ill.Dec. 290]

On July 3, 2007, defendant again complained about APD Jha and about his treatment in jail. He said that APD Jha was “totally numb to what's going on to me. She ain't trying to hear nothing I'm saying. * * * Every time she comes on board, I get treated real bogusly over there.” Defendant also claimed that the State had exculpatory evidence that was being hidden from him. The trial court continued the case.

On July 20, 2007, APD Jha's supervisor, Amy Campanelli, requested a BCX on APD Jha's behalf to determine defendant's fitness to stand trial. Defendant was “strongly opposed” to the BCX. When the trial court asked him...