APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a judgment of conviction for the offense of armed robbery. He was found guilty at the close of a trial by jury and was sentenced to not less than four nor more than 12 years. Defendant seeks a reversal and remandment for a new trial on three grounds: (1) alleged denial of representation by counsel where the sole basis for refusing court-appointed counsel was because he posted bail with funds borrowed from members of his family; (2) improper waiver of counsel; (3) alleged denial of his right to compulsory process. We are primarily concerned with the action of the trial court in failing to appoint counsel for defendant in this action.
Valdery was indicted on May 16, 1974, and bail was set at $35,000. On May 21, 1974, the public defender was appointed to represent the defendant because of his indigency. On June 19, 1974, Valdery posted bail and was released from custody. Subsequently the public defender filed a motion for re-examination of the defendant's indigency on the grounds that he had been able to raise $3,500 to post bail. A hearing on that motion was held on June 28, 1974, and the following discussion took place:
"The Court: You put up $3,500 bond?
The Defendant: My people did.
The Court: Well the opinion of the court is that any man who can borrow or raise $3,500 for bail is not an indigent person. So on examination of indigence, the court finds that the defendant is not indigent, and the appointment of the Public Defender is vacated. You will have to get yourself a lawyer, Mr. Valdery."
On September 3, 1974, Valdery appeared in court and requested a continuance in order to retain counsel, and told the court that his brothers and sisters would not let him use the bond money to pay a lawyer. On September 16, 1974, the defendant appeared again without counsel, and advised the court he had just started working and was only able to raise $109, but every lawyer wanted at least $1500 to take the case.
On September 27, 1974, the State moved to have counsel appointed for Valdery and advised defendant the case was set for trial on October 28, 1974. The motion for appointment of counsel was denied and defendant was warned, "Now you are either going to get yourself a lawyer or you are going to try the case yourself."
Valdery again appeared in court on October 28, 1974, but without counsel and claimed to be without money to hire one. Later that afternoon the State requested that the bail for Valdery be reduced to $25,000 so that Valdery could take $1,000 of the money posted to retain a lawyer. The court again continued the case for trial, and on October 30, 1974, Valdery reported that his mother had agreed to the State's proposal, but his brother had refused to allow him to use the bail money to pay a lawyer.
The defendant proceeded to trial pro se. The State presented two eyewitnesses to the armed robbery who identified defendant and described a tatoo of a cross on the defendant's forehead and a tatoo resembling a heart on the defendant's arm. The defendant presented alibi evidence that he was in Louisiana with his father and two brothers on the date of the offense. The defendant testified as well as his mother and two sisters. The defendant did not call any witnesses from Louisiana. The jury returned a verdict of guilty after deliberating for two hours.
• 1 In Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, the United States Supreme Court held the sixth amendment's guarantee of counsel for indigent defendants to be a fundamental right, essential to a fair trial, and thus made obligatory on the States by the fourteenth amendment:
"[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." (372 U.S. 335, 344, 9 L.Ed.2d 799, 805, 83 S.Ct. 792, 796.)
The overwhelming weight of authority indicates that the right to counsel is one of the most fundamental rights known to our system of criminal justice and that, if the system must bend in any direction, it must be in favor of the implementation of that right.
A number of cases have held that the fact that an accused succeeded in obtaining his release on bail does not conclusively determine his nonindigency ...