APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Along with Robert Douglas (not involved in this appeal), defendant, William Johnson, was charged with two counts of armed robbery. Douglas' motion for a severance was granted. After a bench trial, defendant was found guilty of the crimes charged, and was sentenced to 7 to 15 years, the sentences to run concurrently.
The issues presented are whether defendant's absence from the trial denied him due process; whether the court erred in denying defendant's motion for a substitution of counsel; whether the court properly denied defense counsel's motion to withdraw from the case; whether the court erred in denying defendant's motion for a change of venue; whether the court committed reversible error in proceeding to trial without ruling on a pretrial motion to suppress statements; whether the court erred in the admission of certain evidence; whether the evidence adduced on one of the two counts of armed robbery was sufficient to prove defendant guilty beyond a reasonable doubt; and whether defendant's warrantless arrest was legal.
On the day prior to trial, after the trial court had denied defendant's motion to quash the arrest and during a hearing on defendant's motion to suppress oral statements, defendant requested a continuance to prepare his case with another attorney. He also requested that a bar association attorney be appointed. The trial court denied both requests. The public defender had been appointed at arraignment, and the assigned assistant had actively engaged in pretrial activities. He had filed motions for discovery, to reduce bond, to quash the arrest, and to suppress certain statements.
On trial date defendant filed a pro se written petition for an "interlocutory injunction" requesting time to obtain an attorney other than the public defender. The court denied the petition. Defendant then filed a written petition for other counsel. The court rejected the petition as coming too late. Defendant asked if the record would show that the public defender was not representing him. The judge replied that the public defender was his attorney. After defendant waived a jury trial, the public defender objected to proceeding to trial because defendant did not wish to be represented by him, and because the court had reserved its ruling on defendant's motion to suppress the statements. As the trial judge started to explain why he was proceeding to trial without ruling on the motion, the prosecutor stated that the prosecution would not introduce the statements made by defendant. The court thereupon overruled defense counsel's objection.
After a short recess, defendant made an oral motion for a change of venue, which was denied. Defendant stated that he would not stand trial without an attorney. Defendant refused to sit down unless he had counsel of his own choosing. The trial judge informed the defendant that if he wished to be present he would have to be seated. Defendant stated that he was not waiving his right to be present at trial, but repeated that he would be seated only if he were furnished an attorney of his own choosing. The trial judge then ordered defendant removed and that the trial proceed in his absence. The judge subsequently stated that he had only two options: to exclude defendant or to have him bound and shackled.
However, before the first witness was called, the judge requested that the defendant be returned to the courtroom. The bailiff reported that the defendant did not wish to come back out. The court then informed defendant through his attorney that any time the defendant wished to return to participate in the proceedings and confront the witnesses he should so indicate to the bailiff and he would be returned to the courtroom.
Shortly thereafter, at the request of the court, defense counsel went to the lockup to speak to the defendant. When counsel returned, he informed the court that defendant wished to return to the county jail. The public defender's request to withdraw as defendant's attorney was again denied. The trial court instructed the bailiff to inform the defendant that he would have the opportunity to return to the courtroom whenever he wished. The door to the bullpen was left ajar for his return. The bailiff reported to the judge that, when so informed, defendant said he wanted a bar association attorney.
During the testimony of one of the prosecution witnesses, defendant entered the courtroom. He stated that he needed one of his motions stamped by the clerk. When asked if he wished to remain in the courtroom, defendant responded that he was returning to the bullpen. The trial judge emphasized that defendant was free to return and confront the witnesses. Defendant replied that he was not waiving his right to be present at his trial, but that he did not have an attorney.
At trial, Mrs. Lottie Flanagan testified for the State that she was defendant's aunt. On April 24, 1972, defendant and another man came to her apartment in the city of Chicago. After a short conversation, defendant placed a knife to her throat. Defendant forced her to go upstairs to get her camera, television set, and radio. Defendant and she returned downstairs, where he compelled her to empty the contents of her purses on a bed. When defendant suddenly started shaking, Mrs. Flanagan ran out to a neighbor's home and called the police. Meanwhile, defendant fled.
Miss Catherine Riddle, an 18-year-old student, testified that on the same afternoon she was seated in her auto in front of her home. She was about to take her 2-year-old sister to the store. The witness lived a few blocks from Mrs. Flanagan. A man suddenly opened the car door on the driver's side and put a knife to her face. His face was very close to her. He said that he needed a car, pushed her over, and started to drive. As he drove off, Miss Riddle screamed and pushed her sister out the door. The assailant grabbed her arm, put the knife to her throat, and demanded her purse. The witness gave the assailant her purse and jumped out of the car. As Miss Riddle's father ran up, the robber drove off. She gave the police an identification a few minutes later.
Miss Riddle identified the robber as having something on his head which was reddish. He was wearing a brightly colored tie-dyed T-shirt, and blue jeans. The whole incident took about 5 minutes. At trial, Miss Riddle testified that she saw the knife when defendant entered the vehicle. She testified at an earlier hearing that at first she did not see the knife.
Three weeks after the occurrence, Miss Riddle viewed seven photographs of seven black men at the police station. She identified defendant from one of the photographs. She again saw defendant a few weeks later at a preliminary hearing. Miss Riddle testified at trial that she did not see the robber in the courtroom, but stated that she had seen him in the courtroom on the previous day. At that time, he wore a red jacket, blue pants, brown shoes, and had a crew haircut and hair around his chin. The trial court ordered that the record show that was the manner defendant was attired on the previous day. The State requested that the record reflect that the witness in fact had identified the defendant. The court indicated that he would so rule. However, when defense counsel objected to such an identification as a conclusion, the trial court requested additional bailiffs to be brought to court preparatory to having defendant brought into open court. The court commented that defendant had caused no commotion, but that it wished the additional personnel to be on the safe side. The judge was then informed that defendant refused to enter the courtroom. The judge, stating that he wished to avoid a carnival or a blood bath by forcibly having defendant brought into the courtroom, held that the identification made by Miss Riddle was adequate. Defense counsel moved for a mistrial on the grounds that the judge had by his ruling decided one of the ultimate issues of the case. The motion was denied.
At the conclusion of the State's case, defense counsel renewed his motion for a mistrial citing the atmosphere created by the additional security. The trial judge responded by listing his reasons for the additional bailiffs: the defendant's physical size, his earlier refusal to sit down, and his glances to the back door of the courtroom. The judge, however, commented that defendant had always maintained a ...