APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Defendant, William Jackson, was convicted by the circuit court of Cook County, following a bench trial, of burglary and sentenced to one to three years in the penitentiary. (Ill. Rev. Stat. 1975, ch. 38, par. 19-1.) Defendant contends his conviction should be reversed because his waiver of counsel was not knowingly and intelligently made in accordance with the Federal Constitution and intelligently made in accordance with the Federal Constitution or with Supreme Court Rule 401(a). (Ill. Rev. Stat. 1975, ch. 110A, par. 401(a).) Defendant, pro se, has also filed a brief in this court in which he reiterates a claim he made in the trial court, that he was previously convicted and sentenced to probation for the same offense, and he questions the sufficiency of the evidence.
The record shows that the offense defendant was charged with having committed took place on August 11, 1975. Defendant was arrested on August 12, 1975, and was continually in custody from then until his conviction. On August 12, 1975, a burglary complaint was filed in the municipal court under case No. 855545, charging defendant with burglary of a building at 1252 North Wells, Chicago, on August 11, 1975. Defendant appeared in court concerning this complaint on several occasions until there was a finding of probable cause and he was bound over to the grand jury. On October 24, 1975, defendant was arraigned and the public defender was appointed as his counsel. Reports of proceedings contained in the record show that defendant appeared in court represented by an assistant public defender. Apparently plea negotiations were conducted, and defendant was advised the State would recommend a one- to three-year term upon a plea of guilty. However, defendant was dissatisfied with his counsel and on February 11, 1976, against the advice of the trial court, he discharged the public defender as his attorney.
During the pretrial proceedings a question was raised concerning defendant's competency, because following a conference on the charge, defendant did not seem to understand what was happening. Defendant was then examined at the Psychiatric Institute of the circuit court of Cook County, upon court order. A report was then filed based upon a recent examination of defendant; it was determined defendant understood the charge pending against him and was able to cooperate with his counsel.
On several occasions prior to and during trial, the trial court pointed out to the defendant that in its opinion, defendant had not chosen a wise course in defending himself. In addition, the record shows defendant was furnished with discovery materials previously furnished to the public defender, including a transcript of the grand jury proceedings and arrest reports. Defendant used these documents, particularly the police reports, in his cross-examination of several of the State's witnesses.
The evidence at trial established the two arresting officers were en route to a report of a disturbance when they observed defendant about a block from the burglarized premises carrying a television set. Defendant was also bleeding. The police officers continued to the scene of the burglary, where they observed a steel grating had been removed and a window, smeared with blood, had been broken. The window display contained television sets, and there was an open space suggesting a television set had possibly been removed. The police officers then returned to the place where they had seen defendant, and upon their approach defendant dropped the television set and began to walk away before he was arrested. The proprietor of the premises at 1252 North Wells Street, a television repair shop, identified the television defendant had been carrying as one taken from his display window, and it was admitted into evidence at trial.
Defendant testified he was standing in front of 1160 North Sedgwick with a group of men and women, when the officers arrested him. He claimed he cut his hand during an argument with another man when he fell on the ground and scratched it on a nail.
Defendant claimed an oriental gentleman, who lived above the television store, had told police at the scene of the crime that defendant was not the man who broke the window and entered the premises. At the request of defendant, this witness was subpoenaed but his testimony did not support defendant's claim. There was also a suggestion an unidentified woman had seen a man fitting defendant's description break the store window, but the police did not know her identity, and it was, therefore, impossible to subpoena her or obtain her presence at the trial.
During trial, defendant repeatedly claimed he was previously tried for this burglary charge, found guilty and sentenced to one year probation. The court ordered various transcripts of proceedings prepared in order to clarify this matter. From what can be ascertained from the record, it appears as a result of this burglary charge on August 11, 1976, a petition alleging a violation of a prior probation was filed. However, through some mixup this petition was dismissed, when the clerk of the court before whom the violation of probation was pending was incorrectly informed this burglary charge (Indictment 75-6573) had been dismissed. Defendant continually claimed to be confused about this issue. Although the trial court expressed some doubt whether defendant really was confused, in light of his familiarity with criminal trial procedures, it ordered the transcripts, which did not establish defendant was ever tried for this offense.
The only evidence supporting defendant's claim he had previously been tried for this same offense is defendant's testimony. That testimony is contradicted by the records in this case and is not supported by any other evidence.
1 Moreover, the evidence was sufficient, if believed by the trier of fact, to prove defendant guilty of burglary beyond a reasonable doubt. In a bench trial, it is the function of the trial court to determine the weight and credibility of the testimony and to resolve any conflicts in the testimony. (People v. Reese (1973), 54 Ill.2d 51, 57-58, 294 N.E.2d 288.) It is obvious that the trial court believed the police officers and not defendant. Defendant was proved guilty of burglary beyond a reasonable doubt.
The sole contention in the brief of appellate counsel is defendant did not knowingly and intelligently waive his right to counsel. (Faretta v. California (1975), 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525.) It is argued the trial court did not comply with the provisions of Supreme Court Rule 401(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 401(a)) which provide:
"(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, ...