Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Judgment of
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
The defendant, Frank Washington, was found guilty by a jury of having unlawfully possessed narcotic drugs. He was sentenced to the Illinois State Penitentiary for not less than five nor more than ten years.
On May 14, 1964, police officers entered the premises at 6945 S. Cornell Avenue, with a search warrant naming one Mary Canady. When the officers went to the apartment of Mary Canady, the defendant opened the door and was given a copy of the search warrant. The defendant and Mary Canady were arrested, and in a search of the defendant in the apartment the police seized a tinfoil package of powder and a package of crushed green substance. Another package of white powder was found in the kitchen of the apartment. Defendant stated that everything found in the apartment belonged to him.
The substances seized were taken by the police to the crime laboratory, where they were examined by a police chemist on May 15, 1964. The chemist identified the three packages in open court as those whose contents he had previously examined and found to contain heroin and marijuana.
The defendant raises numerous points on appeal which he contends justify a reversal of his conviction. These are: (1) That he was denied representation by counsel of his own choice and compelled to retain counsel who in fact provided an inadequate representation in which no attempt was made to protect his constitutional right not to be convicted by use of evidence unlawfully obtained which resulted in a failure of constitutionally guaranteed due process; (2) that the evidence does not establish that the substances identified by a chemist as cannabis and heroin were seized from him in the apartment as testified to by police officers, and thus there is no evidence to support the verdict and judgment; (3) that the indictment fails to charge a criminal offense and therefore his motion in arrest of judgment was erroneously overruled; (4) that the evidence does not establish that the drug identified as cannabis (marijuana) was of the kind and quality defined as "narcotic drugs" within the applicable statute; (5) that neither venue nor his age were properly established in the trial court.
The defendant contends that he was denied the right to representation by counsel of his own choice because of the following colloquy between himself and the court upon the call of his case:
"The Defendant: Your Honor?
The Defendant: Could I have time to change counsels, Your Honor?
The Court: No, it is too late.
The Defendant: I'm not satisfied with counsel.
The Court: Not at this stage of the proceedings. Take your seat."
The defendant had been arrested on May 14, 1964, indicted on July 31, 1964, and arraigned on August 10, 1964. On this latter date the defendant's counsel filed his appearance. The trial was set for September 9, 1964. Nothing appears of record for said date, but on October 6, 1964, an order was entered causing the defendant's bond to be forfeited with warrant to issue for his arrest. On December 17, 1964, the State and the defense stated that they were ready to proceed to trial. The record fails to reveal any dissatisfaction by defendant with his attorney other than that noted previously on the date set for trial.
The defendant has cited two United States Supreme Court cases, Gideon v. Wainright, 372 U.S. 335, and Escobedo v. Illinois, 378 U.S. 478, to support his contention that he was denied the right to be represented by counsel of his own choice. In our opinion, neither of these cases supports the defendant. Gideon involved a case where the trial court denied a request of an indigent prisoner to appoint counsel for him, while in Escobedo the police denied defendant's request to see his attorney after he was arrested on a murder charge. The facts and circumstances supporting these cases are clearly distinguishable ...