Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lake County,
the Hon. John A. Krause, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendant, Morris Friedman, was convicted in a jury trial in the circuit court of Lake County of 10 counts of theft by deception (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(b)) and one count of conspiracy to commit theft by deception (Ill. Rev. Stat. 1975, ch. 38, par. 8-2). The trial court sentenced defendant to concurrent terms of imprisonment of 3 1/3 to 10 years for five of the theft counts, to be served consecutively with concurrent 3 1/3- to 10-year terms of imprisonment for the remaining five counts. In addition, the trial court imposed fines amounting to $100,000. The appellate court reversed defendant's conviction and remanded the cause for a new trial (65 Ill. App.3d 613), holding that defendant had been denied the right to counsel of his choice when the circuit court denied defendant's motion for substitution of counsel. We allowed the State's petition for leave to appeal. Though we disagree with the appellate court's holding that defendant was denied the right to counsel of his choice, we do agree that defendant's conviction must be reversed for the reasons that follow.
Defendant, together with six other individuals, was indicted on May 24, 1976. This indictment arose out of defendant's activities in connection with four "marketing corporations" which he had established. The appellate court opinion describes in detail the methods employed by defendant and Ted Moore, a co-defendant in the trial of this cause, to induce the participation of unsophisticated investors in these enterprises. (65 Ill. App.3d 613, 615.) Only those facts relevant to our opinion will be discussed.
After indictment in Lake County on May 24, 1976, and extradition from Arizona in July 1976, defendant appeared with retained counsel, William H. Wise, in the circuit court of Lake County on July 22, 1976, for purposes of arraignment and bond reduction. On this date, trial was set for October 6, 1976. Defendant's motion to travel outside the State for business purposes was granted on August 6, 1976. The trial judge assigned to the case, Judge Doran, became ill in early October, the matter was continued, and Judge Doran was eventually replaced by Judge Krause. William H. Wise withdrew as counsel for defendant on October 19, 1976, citing certain irreconcilable differences as the basis. On October 22, 1976, Judge Krause ordered all pretrial motions to be filed on or before November 19, 1976, setting argument for November 29, 1976. He further advised all parties to expect trial in early January 1977. At this time the public defender was appointed to represent defendant. Defendant was then further advised that he could substitute retained counsel for appointed counsel if he later obtained funds, subject to the condition that retained counsel be ready for trial on the scheduled date.
On November 4, 1976, defendant, at that time residing in Arizona, wrote a letter to Judge Krause expressing his dissatisfaction with the public defender. Defendant stated that he had made repeated efforts to contact the public defender by telephone, stating further that these calls remained unanswered. Judge Krause responded to this correspondence on November 15, 1976. He informed defendant that if the preparation of his defense required that he return to Illinois, he should do so. On November 29, 1976, pretrial motions were argued with George Pease, public defender of Lake County, representing defendant. Pease noted for the record that his office had received correspondence from defendant complaining of numerous unsuccessful attempts to contact his office. Pease stated that a review of the telephone log revealed no such attempts and that he had written defendant advising him of the proper number to call. Judge Krause commented that if the preparation of the defense required defendant's return, he would consider the State's motion to restrict defendant's travel. Judge Krause then set a final pretrial date of January 7, 1977, and a final trial date for January 17, 1977.
On January 17, 1977, the morning of trial, defendant presented the court with a letter from Raymond J. Smith, a private attorney. Smith stated that on January 14, 1977, defendant had contacted him concerning representation in the present case. Smith also stated that defendant had been informed that he could assume representation only if the present trial were continued to allow him to prepare the defense, and that he would presently be on trial in another matter until January 25, 1977. Smith's letter further indicated that defendant had expressed dissatisfaction with his appointed counsel. At this time, the prosecution and the co-defendant, Ted Moore, were both prepared to go to trial. Without discussing this matter with either the prosecution or co-defendant, Judge Krause noted that this request for a continuance was not in the form of a motion, stating that if it were, it would be denied.
Defendant then stated that he had lost faith in his appointed counsel and objected to his representation. Defendant informed the court that he had discussed his appointed counsel's advice to plead guilty with counsel from the Federal defender's office who had been appointed to represent defendant on Federal mail fraud charges arising out of the same series of transactions. According to defendant, it was the opinion of his Federal counsel that defendant had an adequate defense to the Federal charges. On the basis of this opinion, related to defendant's indictment for mail fraud, defendant stated that he lost faith in his public defender. The trial court then questioned Pease. Pease agreed that he would make the State prove each and every charge against defendant, and the court stated that he was defendant's appointed counsel.
Defendant continued his objection to this representation, stating that he wished to waive representation by counsel altogether. The court instructed the public defender to be present to consult with defendant if needed. The court then informed defendant that he had an absolute right to discharge his attorney, but that the trial would begin that day. Defendant stated that, under those circumstances, he wished to be represented by the public defender. On the second day of trial, Gerald Werksman, a private attorney retained by defendant's friends, joined the defense.
The appellate court, relying upon the fact that defendant had not previously been granted a continuance to secure private counsel, and the trial judge's failure to determine the length of time that defendant's chosen attorney would require to prepare the case, found that defendant had been denied the right to counsel of his own choosing.
By statute in Illinois, the decision to grant or to deny a motion for continuance lies in the sound discretion of the court (Ill. Rev. Stat. 1973, ch. 38, par. 114-4(e)). In addition to the specific circumstances enumerated in the statute, the court may grant a continuance if the "interests of justice" so demand (Ill. Rev. Stat. 1973, ch. 38, pars. 114-4(d), (f)). Our continuance provisions are to be construed "to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial." (Ill. Rev. Stat. 1973, ch. 38, par. 114-4(h).) To accomplish this end, section 114-4(e) provides that all motions for continuance "shall be considered in light of the diligence shown on the part of the movant." (Ill. Rev. Stat. 1973, ch. 38, par. 114-4(e).) Our review of the trial court's judgment in balancing these factors focuses initially on the question of whether the decision of the court amounts to an abuse of discretion. (People v. Solomon (1962), 24 Ill.2d 586, 590.) The determination of whether the denial of a continuance violates a substantive right of the accused must turn on the particular facts of each case. People v. Lott (1977), 66 Ill.2d 290, 297.
In the present case, defendant was informed by the court on October 22, 1976, approximately 2 1/2 months prior to trial, that he was free to substitute retained counsel, provided this substitution would not delay the trial. On the morning of trial, defendant presented the court with his first request to substitute counsel. Defendant's counsel of choice indicated that he could not be ready by the scheduled trial date, stating that defendant had first contacted him three days prior to trial. The record is silent on other attempts by defendant, if any, to secure private counsel. We agree with the trial judge that this request was not timely.
Defendant seeks to avoid the effect of his lack of diligence by arguing that his decision to seek retained counsel on the eve of trial was motivated by his sudden loss of confidence in the public defender. Defendant contends that this loss of confidence was engendered by appointed counsel's advice to plead guilty, measured against the opinion of defendant's Federal counsel. We do not agree, however, that defendant's lack of diligence should be excused. The trial court was first confronted with defendant's dissatisfaction with appointed counsel in early November. Defendant claimed at that time that the public defender had not answered his numerous telephone calls. The public defender, however, informed the court that the telephone log in his office revealed no such attempts. The trial court was then presented with defendant's claim of a sudden loss of faith in appointed counsel on the morning of trial. In response to this assertion, the trial court obtained the assurance of appointed counsel that he would vigorously represent defendant. Our review of the record also reveals that defendant informed the court at his sentencing hearing of his intent to enter a plea of guilty in the Federal proceeding, and we therefore doubt the sincerity of defendant's claim that his loss of faith was prompted by his Federal defender's opinion of the viability of his defense. Independent of defendant's sincerity, we do not find that his expression of dissatisfaction, given the assurance of the public defender, amounted to an irreconcilable conflict which would require continuance of the trial.
Our cases have consistently held that the accused in a criminal case does indeed have the constitutional right to be represented by counsel of his own choosing. It is equally true, however, that this right may not be employed as a weapon to indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime. (People v. Solomon (1962), 24 Ill.2d 586, 590.) We hold that defendant was not denied the right to counsel of his own choosing under the circumstances of this case. The trial court could reasonably conclude that the request was made solely for the purpose of delay. (People v. ...