APPEAL from the Circuit Court of Cook County; the Hon. FRANK
MACHALA, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendants, Freddie Brown, Jr., and Sanford Jackson, were jointly indicted and convicted of three counts of armed robbery, three counts of aggravated battery, and one count of unlawful use of weapons. Defendants contend that the actions of the trial court deprived them of the effective assistance of counsel. Further, they deny that their actions constituted a waiver of counsel and claim that the trial court's comments regarding their absence from the courtroom constituted reversible error. Defendants also contend that they were denied a fair trial by the court's failure to advise them of their right to tender instructions or to object to those tendered by the State and given by the court. They specifically object to instructions pertaining to the concept of accountability as it applied to the charge of unlawful use of weapons. Defendants also assert that they were not proved guilty beyond a reasonable doubt on the accountability charge. Two final issues are raised for review, that the prosecutor's closing argument and the presence of 15 armed guards in the courtroom denied them a fair trial. Since the facts pertinent to the trial itself, rather than to the evidence regarding defendants' crimes, provide the basis for most of defendants' assertions, those facts are set out below.
At defendants' arraignment on June 17, 1977, following their indictment on the above charges, the court explained the arraignment procedures in response to a request by one of the defendants and asked if they would be represented by counsel. One defendant, unidentified in the record, informed the court that his "wife is supposed to get me a lawyer next week" and the other defendant, also unidentified, responded "the same thing." When the court inquired if defendants desired a continuance to secure counsel or wished the public defender to represent them, each replied that he wanted his own lawyer. They were granted a two-week continuance to July 1, 1977, to obtain such counsel.
On July 1, they appeared without privately retained counsel. The public defender informed the court that although the defendants might seek other counsel at a later time, they were assigned to her office during the arraignment.
On September 16, after the public defender and State's Attorney agreed to a continuance, defendants objected, with Jackson stating that both of them wanted the "transcripts and evidence." Jackson also wanted to know what the charges were. The court advised defendants to let their lawyer handle the case and told them that they had the right to fire her if dissatisfied and to represent themselves. Jackson replied that they would do that at this time. The court recommended against such an action and warned that it would be unwise since they had no qualifications. The court then stated that the case would be set for trial and defendants would represent themselves. Jackson objected and said that the fact that they wanted to discharge the public defender did not mean that they wanted to represent themselves.
After a conference with the public defender, defendants apologized to the court and requested another continuance to secure private counsel. The court granted the continuance, discharged the public defender, and once again informed defendants that they were representing themselves. The court then told defendants that the public defender would be reappointed at their request.
On October 14, one of the defendants stated that the lawyer they contacted "didn't show." A pro se written motion for a bar association attorney was then filed. When the court denied the motion, defendants protested, explaining that the public defender had not brought them the discovery or police reports. However, the court informed defendants that unless they retained private counsel, their choices were limited to accepting the public defender or representing themselves. Defendants were advised to discuss the matter with the public defender. Soon thereafter, the public defender informed the court that defendants had agreed to her reappointment.
On February 2, 1978, the public defender advised the court that defendants were ready for trial but she had been unable to reach the private attorney that Brown had said would represent him. The case was continued on the court's motion to February 6. On that date the public defender asked to withdraw and stated that since the defendants refused to talk to her, she could not represent them. The defendants renewed their motion for a bar association lawyer, giving as reasons the public defender's failure to file the motions they requested and her general lack of cooperation. The court once again asked if the defendants wanted to fire the public defender. Brown and Jackson replied affirmatively, but insisted that they did not intend to represent themselves. As to this refusal to proceed pro se the court stated: "[E]ntirely up to you, you can sit here while the State presents their case, if you wish. You have that privilege."
At trial, the court informed defendants that an assistant public defender had been appointed to answer questions and give any requested assistance. Defendants reiterated that they did not intend to go to trial without an attorney and, once again, requested a bar association attorney.
The standby attorney stated that all discovery had been tendered to defendants and that they had refused to speak to him. After defendants again refused representation by the public defender, the court closed the discussion with the statement, "you're going to have to learn the hard way. It's entirely up to you. Like I say, when you come out here, we'll have a jury the next time you come out."
After a brief recess, defendants refused to return to the courtroom. The trial judge went to the lockup and informed defendants that they could return to the courtroom at any time, but in the interim, he was going to proceed with selecting a jury and hearing the evidence. After another recess, the trial judge once again asked defendants to return to the courtroom; the defendants still refused to leave the lockup.
When the trial began the day after the jury had been selected and present, the court advised defendants that they could make opening statements. Brown said, "Opening statement for what?" and the judge suggested a consultation with public defender Kunz. Following that conversation, brief "opening statements" were made by each defendant addressed not to the merits of the case but to their objections to proceeding to trial without a lawyer of their own choosing.
Before the State could call its first witness, both defendants commenced verbal attacks on the judge, calling him a racist and demanding an attorney. When defendants persisted in their disruptive behavior both before and after a short recess, in the face of the judge's warnings that their behavior might cause them to be removed, defendants were held in contempt and, finally, led from the courtroom.
The State presented substantial evidence, including identification testimony by two eyewitnesses. In addition to the eyewitness testimony, two policemen described their response to the alarm and their apprehension of the defendants a short distance from the scene of the crime, in possession of firearms and the proceeds of the robbery. Defendants returned to the courtroom prior to the police testimony and sat quietly through the State's direct examination.
The court asked defendants if they wished to question the witness but both defendants responded that they were not qualified and would like to have an attorney. The court directed the witness to leave the stand. Following testimony by the second policeman, defendants were again asked if they had any questions. The response was ...