APPEAL from the Circuit Court of Kankakee County; the Hon.
HERMAN W. SNOW and the Hon. WAYNE P. DYER, Judges, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Kankakee County.
On January 26, 1968, the defendant, Howard Allen, along with Robert Smiley and Aubry Williams, was indicted for the armed robbery of Virgil Stone, an attendant at the Hicksatomic Gasoline Station in Kankakee, Illinois.
On June 28, 1968, the defendant appeared in court pro se and was served a copy of the indictment and on that appearance he advised the court that he was to be represented by Merwin Auslander, an attorney of his own choice. He further stated that he adopted on his behalf motions for reduction of bond previously made by his co-defendants, Smiley and Williams. On July 1, 1968, defendant Allen was again in court for the purpose of a hearing on the motion to reduce bond. At this hearing the defendant was represented by Patrick Burns, who was counsel for co-defendant Aubry Williams. The motion was granted and defendant was released on bond. On July 3, 1968, the defendant was present in court for the purpose of arraignment and was represented by attorney Harry Gerde. The defendant entered a plea of not guilty and the case was placed on the trial calendar for July 8, 1968, and from day to day thereafter. On September 16, 1968, the defendant was again in court and represented by his attorney, Mr. Auslander. The defendant's motion for continuance was granted and the case was set for trial on January 6, 1969. The defendant, along with his counsel, Mr. Auslander, was again in court on January 7, 1969. It was on this date that the defendant waived a trial by jury and the case was set for bench trial on February 17, 1969. On February 17, 1969, the defendant was in court with his counsel, Mr. Auslander, when the case was called for trial. The defendant joined with co-defendant Williams in a motion to suppress evidence, which was denied. Defendant then moved for a continuance which was granted over the State's objections and the trial was continued to March 31, 1969. Also on this date the defendant, by Mr. Auslander, his attorney, moved that the court be ordered to furnish a correct address for the complaining witness, Virgil Stone, and any other change of addresses of witnesses which had occurred since a previous list of witnesses had been furnished to the defendant. The court ordered the State's Attorney to furnish the present address of Virgil Stone and corrected addresses of any other witnesses. On March 7, 1969, the amended address of witness Virgil Stone was filed which stated "last known address of witness Virgil Stone is Waterloo, Illinois."
The defendant appeared in court pro se on March 17, 1969, and the cause was continued for trial to April 28, 1969, and from day to day thereafter.
On April 28 the defendant and his attorney, Mr. Auslander, were in court and the case was called for trial. It was at this time that Aubry Williams, the only other defendant remaining in the case, withdrew his plea of not guilty and entered a plea of guilty to the charge in the indictment. The court accepted the guilty plea of Aubry Williams and set a hearing on his motion for probation to a later date. The case was then assigned to Judge Herman Snow and set for trial in the afternoon of the same date. Upon the case being called for trial the defendant, by his attorney, Mr. Auslander, moved for continuance on the grounds that the withdrawal of co-defendant Aubry Williams from the case had completely and radically changed the character and nature of the defense which was needed to be prepared on behalf of the defendant and therefore additional time for preparation was needed. The trial court denied the motion.
The case proceeded to trial and the first witness for the prosecution was Virgil Stone, the complainant, who gave his address as "Route 1, Loudale Drive, Waterloo, Illinois." Counsel for defendant objected to the testimony of this witness on the grounds that the prosecution had failed to comply with the court's order to furnish the witness's correct address. The court overruled this objection and permitted the witness to testify. Upon cross examination the complainant Stone admitted that he never saw the defendant Allen with a gun but stated there was no doubt in his mind but what the defendant was one of the group of three people who robbed him.
At the conclusion of closing arguments the court took the matter under advisement and on May 2, 1969, the defendant was in court with attorney Alan Kawitt, who stated that he was appearing for Mr. Auslander. On this date the court adjudged the defendant guilty of armed robbery and increased bond from $25,000.00 to $50,000.00. On May 22 the defendant was in court again, represented this time by attorney Sheldon Reagan. A motion was made for reduction of the amount of bond. The record fails to disclose whether this motion was granted or denied. On June 4 defendant with his counsel, Mr. Auslander, was present in court for a hearing upon the report of the probation officer. Defendant's father was presented as his sole witness in support of his application for probation. The probation hearing was continued to June 27, on which date the defendant and Mr. Auslander were again in court. Probation for the defendant having been denied, the court on August 6, 1969, heard evidence in aggravation and mitigation of sentencing. At this time the defendant was represented in court by his counsel, Mr. Auslander.
Subsequent to this hearing the defendant was sentenced to a term of imprisonment of not less than five nor more than ten years.
The issues presented in this appeal are (1) the defendant was denied effective assistance of counsel, (2) the defendant was denied his right to be advised of the nature of the accusations against him since there was a variance between the charge against him in the indictment and the proof which was later adduced during the course of the trial, (3) the court erred in refusing to exclude a witness whose address was inadequately described, (4) the defendant was denied an opportunity to adequately prepare his defense.
We have set forth in considerable detail the numerous court appearances of the defendant and what transpired on each occasion since we are confronted with the question as to whether or not the defendant was denied effective assistance of counsel.
• 1 Such a contention finds its foundation in the decisions of our courts and the Federal courts which recognize that the conduct of counsel in a criminal trial may be such as to deny a defendant the fair trial that is contemplated by the due process provisions of both the State and Federal constitutions. (S.H.A., Const., Art. II, Sec. 2; U.S.C.A. Const., Amend. XIV; Anders v. California, 378 U.S. 738; People v. DeSimone, 9 Ill.2d 522, 138 N.E.2d 556; People v. Clark, 7 Ill.2d 163, 130 N.E.2d 195; People v. Stephens, 6 Ill.2d 257, 128 N.E.2d 731; People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810.) The rationale of the cited cases is that the defendant's right to assistance by counsel as provided by Article II, Sec. 9 of the Illinois Constitution and the 6th Amendment of the United States Constitution is not satisfied by the mere formality of the appointment of an attorney by the court, but such right embraces effective representation throughout all stages of the trial and where the representation is of such low caliber as to amount to no representation or to reduce the trial to a farce, the guarantees of due process are violated. People v. Jackson, 96 Ill. App.2d 99, 238 N.E.2d 234; People v. McCoy, 80 Ill. App.2d 257, 225 N.E.2d 123.
It should be noted that the Illinois cases where alleged incompetency of counsel has been urged as the reason for setting aside a conviction fall into two categories which are (1) cases wherein the defendant was represented by counsel of his own choice, and (2) cases wherein the defendant was represented by counsel appointed by the court. A detailed and comprehensive discussion as to the rule to be applied in each type of case was set forth in People v. Morris, supra. It was for some time the almost inflexible rule that where defendant retained counsel of his own selection that he, the defendant, was responsible if that counsel did not faithfully serve his interests. (People v. Mitchell, 411 Ill. 407, 104 N.E.2d 285.) While the Illinois courts still recognize the distinction between privately retained and court appointed counsel situations, there has been some relaxation in the strict accountability rule which had previously been applied when defendants complained of incompetency on the part of counsel of their own choice. We are aware of the somewhat recent case of People v. Hurst, 42 Ill.2d 217, 247 N.E.2d 614, wherein it was stated:
"Our court has long held that a defendant who chooses his own attorney cannot complain about that attorney's lack of care and skill in handling his case. Since the defendant was represented by counsel of his own choosing, counsel's alleged failure to exercise care and skill in the ...