APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Cook County, defendant, Frank Polk, Jr., was convicted of armed robbery and the unlawful use of a weapon. He appeals directly to this court from the armed-robbery conviction for which he was sentenced to the penitentiary for a term of 10 to 20 years. He now contends that he was denied a fair trial; that the trial court erred in denying his motion for a substitution of judges and that his sentence was excessive.
The facts giving rise to the primary issues occurred prior to trial. On Friday, May 22, 1970, defendant, who was represented by an assistant public defender, appeared before the Honorable Saul Epton, a judge of the circuit court of Cook County. Defense counsel stated he was ready for trial but the court set the trial date for Monday, May 25, 1970.
On that day the court began to select a jury when defense counsel stated that defendant requested a continuance. The court inquired as to the reason and, after a brief conference with defendant, defense counsel informed the court that the basis for the motion was defendant's belief that counsel was incompetent. This motion was denied and defendant arose and proceeded to leave the courtroom. After defendant was returned, he personally requested a change of venue. The court instructed defendant that his counsel was the appropriate party to make defense motions and further informed him that the trial would proceed. Defendant asked whether the matter would continue even though he was not ready for trial and did not have any witnesses present who would testify in his behalf. The court stated that a jury was merely being selected and defendant would have ample time to procure witnesses. Defendant then sought to waive a jury but the court refused to accept a waiver at this time. Defendant stated, "I want to leave and you pick the jury * * *. I am not going to be ready when he wants to." Defendant again left the courtroom at this point. The court apologized to the prospective jurors and requested they leave the courtroom so that the matter might be resolved. The court entreated defense counsel and members of defendant's family to reason with him. During this discussion defense counsel stated he was prepared for trial.
It is to be gathered from the record that over fifteen minutes elapsed before defendant and members of his family re-entered the courtroom. The court instructed a deputy sheriff to place defendant in his chair and to handcuff him if necessary, but defense counsel informed the court that defendant would cause no further disturbance.
The court inquired if defendant wanted to waive a jury trial and he replied "I have no comments." However, a short time later defendant said he wished to waive a jury and the following colloquy ensued:
"THE COURT: Do you understand what a jury trial is, Mr. Polk?
DEFENDANT POLK: (No response)
THE COURT: You just said you wanted to waive a jury, Mr. Polk, is that correct?
DEFENDANT POLK: (No response)
THE COURT: Let the record show that Frank Polk, Jr., in open court said he wished to waive a jury.
DEFENDANT POLK: I haven't said anything."
The court reporter read the pertinent portion of the proceedings which clearly indicated defendant's request and the ...