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The People v. Tyson

SEPTEMBER 29, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RUFUS TYSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JACQUES F. HEILINGOETTER, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

At a jury trial the defendant was found guilty of automobile theft and was sentenced to the Illinois State Penitentiary for a term of from two to eight years. As grounds for his appeal the defendant argues that the trial court improperly refused to permit him to be represented by counsel of his own choice; that he was not proved guilty beyond a reasonable doubt; and that the closing argument of the State's Attorney was unduly prejudicial.

On December 9, 1967, the defendant was arrested and charged with theft of an automobile; on February 1, 1968, he was indicted by the Grand Jury for theft in excess of $150, and for criminal trespass to a vehicle. The defendant was arraigned on February 8, 1968, and entered a plea of not guilty. On that date he told the court he had no attorney and was not financially able to engage one. Without objection, the court appointed the Public Defender as defendant's attorney, and the case was set to be tried on March 7, 1968. On that date the defendant moved for a continuance to April 15, 1968, and a motion was granted, although the State indicated it was ready to proceed to trial and had the complaining witness in court.

On April 15, the case was again called for trial, and the Assistant Public Defender informed the court that the defendant would need another continuance in order to obtain his own attorney. The defendant himself told the court that he would like a continuance so that his mother could hire an attorney to represent him. His mother told the court she had enough money to hire an attorney for her son. At this time the Assistant State's Attorney said he believed the defendant was employing dilatory tactics to discourage the State's witnesses from testifying, and he indicated "it is reaching a point where the State's witnesses will not appear and testify in court." Before ruling on the motion the court stated that there was no defense counsel before him other than the Public Defender, and added, "I think it would be a disservice to the defendant himself along with the administration of justice to continue the matter further." He then denied the motion.

The State agrees that the Sixth Amendment to the Constitution guarantees the assistance of counsel in criminal cases and that the defendant has the right to employ counsel of his own choosing. It is urged, however, that this is a qualified right and that the defendant is not entitled to assert the privilege at any time he wishes. The State argues specifically that since the Public Defender was appointed on February 8, 1968, and that no objection to the appointment was made until the date of trial — some two months later — the request was not made in good faith and was properly denied.

The State argues that a defendant is not entitled to interfere with the proper administration of justice, and that the motion for a continuance was an attempt to so interfere. Regardless of defendant's motives, we agree that the trial court properly denied the motion for a continuance. In People v. Solomon, 24 Ill.2d 586, 182 N.E.2d 736 the court said at 589:

"The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. (People v. Surgeon, 15 Ill.2d 236; People v. Clark, 9 Ill.2d 46.) Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights."

It was found that the trial court had properly refused defendant's continuance since it appeared doubtful that the defendant would obtain other counsel.

In People v. Ritchie, 66 Ill. App.2d 417, 213 N.E.2d 306, the court applied the Solomon principles and ruled that under the facts of the case the defendant was entitled to a continuance in order to obtain counsel of his own choosing. The Public Defender advised the court that a private attorney had contacted him and asked him to obtain a continuance since "he might enter his appearance in the case." After the motion had been denied the Public Defender remained in the courtroom although the "trial proceeded with little representation of the defendant by the public defender and essentially none by the defendant." (Page 420.)

In the instant case, however, there was no attorney who had indicated a willingness to file his personal appearance, and after the motion was denied the defendant allowed the Public Defender to represent him. This court's statement in People v. Boston, 89 Ill. App.2d 49, 52, 232 N.E.2d 224, is fully applicable to this case:

"Nor was there any showing that in the representation of defendant by the Public Defender (who was prepared and ready for trial, and did a competent job of cross-examining the State witnesses) anything took place which `embarrassed' or `prejudiced' defendant's rights."

In the instant case, the defendant did not object to the appointment of the Public Defender until the very moment his cause was to be tried. As stated in People v. Leman, 95 Ill. App.2d 212, 238 N.E.2d 213, at 216, "This, in itself, has been held appropriate grounds to deny the substitution because of the staleness of the demand. People v. Jones, 51 Ill. App.2d 391, 201 N.E.2d 194 (1964); People v. West, 80 Ill. App.2d 59, 225 N.E.2d 397 (1967)." The trial judge did not abuse his discretion when he denied defendant's motion for a continuance based on the ground that he wished to hire his own attorney.

The defendant further asserts he was not proved guilty beyond a reasonable doubt. The statement in defendant's brief seeks to give the impression that the State's case rests on a weak link of circumstantial evidence; namely, the defendant's presence at the place where the car was abandoned. An examination of the record reveals quite a different situation. Two police officers testified at the trial that they had observed a Chevrolet automobile speeding on Madison Street and had pulled up behind it in their squad car. The driver of the Chevrolet ignored their indications to him to pull over and they continued in pursuit, never losing sight of the car. One of the officers testified that the driver finally pulled into a vacant lot; that "When the automobile stopped, he jumped out and started to run, and he was overtaken by fellow officers on the scene led by my partner and me." He then identified the defendant as the man who left the car.

Another of the arresting officers testified as follows: "I didn't turn into the driveway. And we observed the defendant depart from the vehicle. We jumped out of the car — I jumped out of the car and he was apprehended." He added that the defendant was "the man that jumped out of that vehicle and was apprehended. . . ." This was direct eyewitness testimony of a ...


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