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People v. Kelly

APRIL 18, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.


The defendant, Johnny Kelly, was convicted of aggravated battery by a jury in the Circuit Court of Cook County. He was sentenced to the penitentiary for a term of not less than three nor more than seven years.

On appeal he argues he was deprived of counsel of his own choice; the evidence was insufficient to find him guilty beyond a reasonable doubt; and the instructions to the jury failed to correctly state an essential element of the crime of aggravated battery.

On June 21, 1970, a plain-clothes officer, Sam Wilson, came on the scene of an accident at 47th Street and Evans Avenue in the City of Chicago. He stated the defendant was acting strangely and someone told him he was the driver of the car which had gone out of control. When a marked squad car arrived on the scene, Wilson told Kelly to get in. The defendant protested he was not involved, but Officer Wilson insisted everything be resolved at the station. Officer Wilson testified that after walking him to the car he had to "sort of shove him in," but he was not handcuffed.

According to police testimony the squad, with Kelly in the back seat alone, was proceeding toward the Second District Station when he screamed, reached over the seat with both hands, and began gouging Officer Miller's eyes with his thumbs and long fingernails. He also bit him on the head.

Officer Miller grabbed Kelly's wrists, pushed himself over into the back seat and began struggling with the defendant, who then bit him on the nose. Officer Ferguson was driving in heavy traffic, and it took some time to maneuver the car to the side of the road, where he stopped and was able to pull the defendant off Miller, assisted by Officers Woo and Szudarski, who arrived on the scene in another squad car. Officer Woo took Miller to Michael Reese Hospital, where he was given a tetanus shot, had his face bathed, given an eye test to determine whether his eyeballs were damaged, and then had some X-rays taken of his head.

Officers Szudarski and Ferguson handcuffed Kelly and once more began transporting him to the station, whereupon he first opened the back door and several blocks later raised his feet up and kicked Officer Ferguson in the head.

The defendant contends he was a passenger in a car involved in the accident after which the driver fled the scene. Kelly stated he got out of the car and was holding a baby when he was grabbed by Officer Miller, causing the baby to fall to the ground. He argued heatedly with the officer about their refusal to take the child to a hospital. Kelly said he was handcuffed and placed in the back seat of the squad car, and Miller leaned over from the front seat and hit him repeatedly with a blackjack or billy club. When the car stopped and his handcuffs were removed, he thought he was being released, but Miller began hitting him again. At this point he struck Miller three or four times but did not scratch or bite him.

The defendant was charged with aggravated battery and was represented by private counsel at the arraignment on August 19, 1970. On November 25, 1970, the attorney was granted leave to withdraw from the case because of the defendant's lack of cooperation. The public defender was then appointed and was ready for trial on March 29, 1971. On the morning of that date, immediately before trial, a second private attorney telephoned and informed the court he could not represent the accused. The court directed the public defender to continue as defendant's counsel, and the case proceeded to trial.

The defendant first contends he was deprived of his right to choose his own counsel because on the day of trial his own private counsel was not able to appear, and the public defender was directed by the court to defend him.

• 1 It is fundamental a defendant has a right to employ counsel of his own choosing. (People v. Cohen (1949), 402 Ill. 574; People v. Green (1969), 42 Ill.2d 555.) However, in the instant case, there is nothing in the record to indicate the defendant had retained a second private counsel, as the public defender had been appointed four months prior to trial, had prepared the case, and was ready for trial. Upon advising the court he would not be present, the second attorney asked that his statement be made in open court, especially to the public defender, thus indicating the defendant's reliance on the public defender.

• 2, 3 In United States v. Cozzi (1965), 354 F.2d 637, the court stated that the Sixth Amendment right of a defendant to select his own counsel does not permit an arbitrary action which obstructs orderly procedure in the courts:

"It is a right to be exercised at an appropriate stage within the procedural framework of the system of criminal jurisprudence of which it is a part. Absent justifiable basis therefor there is no constitutional right to make new choice of counsel, with attendant necessity for a continuance because thereof, at the time the trial is scheduled to commence."

The start of a trial is not an "appropriate stage" for the selection of new counsel, especially in the light of the public defender's preparation of ...

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