APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of conviction for murder. Defendant, Marcellus Lindsey, and one Eddie Wells, were charged with the attempted robbery and murder of Jack Montgomery in the City of Chicago on May 16, 1969. Wells, who shot Montgomery and caused his death, agreed to a plea bargain and pled guilty. He was sentenced to serve two to four years. Defendant, who allegedly was an accountable party, refused a plea bargain, insisted on a trial, and was found guilty. He was sentenced to serve 14 to 20 years. *fn1
Urging that his conviction be reversed, defendant presents three issues for our review. (I.) Whether he was adequately admonished by the trial court when he requested and was granted leave to act as his own lawyer with his court-appointed counsel assisting him. (II.) Whether it was an abuse of judicial discretion for the trial judge to prevent defendant from obtaining assistance of counsel during crucial phases of his trial, after the court had ruled that he could represent himself with his court-appointed counsel assisting him. (III.) Whether defendant's in-court identification was the product of highly suggestive procedures conducive to irreparable misidentification.
These issues are raised from events that occurred during defendant's trial. Therefore, except as it may be necessary for our discussion, we will not state the facts from which the offenses arose.
Defendant was brought to trial the day after Eddie Wells pleaded guilty. His lawyer, at the time, was Mr. Joseph Malek of the Illinois Bar who had been defendant's court-appointed counsel for more than 18 months. In contrast with Eddie Wells, the record shows that defendant was insisting on a trial. When Mr. Malek stated this fact, he was instructed to consult with the defendant, "explain everything to him," and report to the court. This was done; and a short time later, the case was called. Mr. Malek then told the trial judge that he had expressed his views on the charges pending against defendant and "* * * I indicated to Mr. Lindsey that he has a right to a bench or jury trial, I indicated to him the maximum penalty on each indictment and the offer that has been made and Mr. Lindsey indicated that he wants to go to trial." In answer to the assistant state's attorney's inquiry, defendant said he wanted a trial by jury. The court accepted defendant's decision and ordered that jurors be sent to his courtroom.
After jury selection began, Mr. Malek reported to the trial judge that defendant wanted to represent himself. The trial judge convened the parties in his chambers and undertook to explain to defendant the seriousness of the charges against him and the necessity that he be represented by counsel. Defendant was asked if he understood what was said to him and he said he did. At the end of a long colloquy, defendant told the trial judge, "I suggest that Mr. Malek stay on call and proceed with trial." The trial judge asked him, "Stay on call to assist you?" Defendant answered, "That's right." The trial judge said, "* * * I see nothing wrong with that." He followed this statement with a long inquiry of defendant concerning his age, his education, experience in life, and then ruled "* * * that the desires of the defendant, Marcellus Lindsey, are to be respected, he has that constitutional right to represent himself, however, I am ordering you, Mr. Malek to assist him." Selection of the jury then continued.
In this appeal, defendant contends that before he was granted leave to represent himself, with Mr. Malek assisting him, he was not given the admonishments required by Supreme Court Rule 401(a). *fn2 Defendant argues that, although required by the rule, the trial court did not determine whether he understood the nature of the charges (murder and attempt to rob) nor did the court determine whether he understood the minimum and maximum sentences prescribed by law for the offenses for which he was being tried. Defendant insists that the trial judge had the duty to give him the admonitions of Rule 401(a) because he made a waiver of counsel before going to trial.
• 1 The purpose of Supreme Court Rule 401(a) is to provide a procedure which will eliminate any doubt that a defendant understands the nature and consequences of the charge against him before a trial court accepts his waiver of the right to counsel; it is a procedure that precludes a defendant from waiving assistance of counsel without full knowledge and understanding. (See People v. Schrodt, 8 Ill. App.3d 660, 289 N.E.2d 652; Supreme Court Rule 401(a), Ill. Rev. Stat. 1971, ch. 110A, par. 401(a).) A waiver, as this concept applies to the waiver of the right to counsel, is an intelligent relinquishment or abandonment of a known right or privilege. See Johnson v. Zerbst (1938), 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019; People v. Brown, 99 Ill. App.2d 281, 241 N.E.2d 653; McKenzie v. State (Fla. App. 1966), 187 So.2d 69.
• 2-4 A waiver of counsel occurs when a defendant, knowing his rights and intelligently exercising them, informs a court that he does not wish counsel; that he wants to stand alone. (People v. Bowman, 40 Ill.2d 116, 239 N.E.2d 433.) A finding that the right to counsel has been waived is not to be made lightly. (People v. Blanchard, 37 Ill.2d 69, 224 N.E.2d 813.) Such a finding should be preceded by a careful inquiry by the court, aimed at determining the defendant's ability to conduct his own defense. (See People v. Morris, 43 Ill.2d 124, 251 N.E.2d 202.) "The right of a defendant to represent himself, when his choice is intelligently made, is as basic and fundamental as his right to be represented by counsel." (People v. Sinko, 21 Ill.2d 23, 25-26, 171 N.E.2d 9.) When the court determines that the defendant can represent himself and that waiver of counsel is knowing and intelligent, counsel of record, if there be one, is relieved and the defendant conducts his own defense. (United States v. Spencer (2 Cir. 1971), 439 F.2d 1047; People v. Bush, 32 Ill.2d 484, 207 N.E.2d 446.) Where, however, a defendant requests that he be allowed to conduct his own defense with the assistance of a court-appointed lawyer, he does not waive the right to counsel. He seeks, instead, the best of both worlds: freedom to conduct his own defense and benefit from the assistance of counsel. In such a case, it is within the trial court's discretion to decide whether defendant may have an attorney to assist and advise him. People v. Allen, 37 Ill.2d 167, 226 N.E.2d 1; compare People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239.
In this case, defendant told the trial court that he wanted to conduct his own defense, with his lawyer remaining in the case to assist him. It is true, as defendant contends, that the trial judge did not in open court determine whether he understood the nature of murder and attempted robbery. Nor did the judge in open court determine whether defendant understood the minimum and maximum sentences provided by law for the two offenses. Nonetheless, we are of the opinion that the rule admonitions need not have been given defendant because, by his request that he be allowed to conduct his own defense with his court-appointed lawyer assisting him, he did not make a waiver of counsel within the meaning of Supreme Court Rule 401(a).
With defendant acting as his own lawyer, and Mr. Malek under orders to assist him, selection of the jury was resumed. But a short time later, defendant expressed the desire to waive his right to a trial by jury. He was admonished by the trial judge concerning his waiver, it was accepted, and the jury panel was dismissed. The case then proceeded as a bench trial with defendant still representing himself and Mr. Malek assisting him.
Thereafter, the State called two witnesses and during their examinations, Mr. Malek made objections on which the trial judge ruled, without comment. However, when at one point Mr. Malek asked that the trial proceed, the trial judge told him, "You are not the attorney in this case." Mr. Malek responded, saying, "I am his co-counsel, Judge." The trial judge replied, "You're not his ...