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People v. Myles

OPINION FILED APRIL 15, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN MYLES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. STRUNCK, Judge, presiding.

MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant, John Myles, was charged by indictment with the offense of armed robbery in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). After a jury trial, defendant was convicted as charged and sentenced to a prison term of 35 to 60 years. Defendant appeals. We consider the following issues: (1) whether the actions of the trial court deprived defendant of his right to the effective assistance of counsel; (2) whether the trial court erred in denying defendant's motion to quash his arrest and to suppress evidence; and (3) whether the trial court erred in denying defendant's motions for substitution of judge and for change of venue. *fn1 For reasons hereinafter set forth, we reverse and remand for further proceedings not inconsistent with this opinion. Since the facts pertinent to the trial itself provide a basis for most of defendant's assertions, those facts as well as evidence regarding defendant's arrest, rather than evidence regarding defendant's crime, are set forth below.

At defendant's arraignment on July 5, 1974, Mr. James Reilley filed an appearance as defendant's attorney. While defendant was released on bond, the case was assigned to Judge Daniel J. Ryan and the cause was continued eight times before it was reassigned to Judge Robert L. Massey. On September 18, 1975, pursuant to a petition filed by the State, Judge Massey revoked defendant's bond. Defendant filed a motion for a change of venue from Cook County claiming adverse trial publicity, and the cause was continued for consideration of the motion. *fn2 The cause was continued on three occasions prior to reassignment on November 5, 1975, to Judge James E. Strunck, who denied a motion by defendant to vacate the prior order revoking defendant's bond. The cause was again continued on eight occasions with the State answering ready for trial beginning on December 19, 1975. On March 8, 1976, defendant filed a petition to dismiss Reilley as his attorney, alleging that Reilley was not protecting his rights. Reilley then filed a motion to withdraw. The trial court denied the motion to withdraw until such time as another attorney filed an appearance on behalf of defendant. The court permitted defendant to speak to his wife and continued the motion until the next day. On March 9, 10 and 11, 1976, defendant indicated to the court that his wife was attempting to retain an attorney for defendant. On March 17, 1976, defendant's wife advised the court that attorney E. Duke McNeil would represent defendant. In response the court advised her that McNeil should be present in court the following morning. On March 18, 1976, defendant advised the court that although he wished to retain McNeil as his attorney, he needed time to obtain money to pay McNeil's fee. The assistant state's attorney stated that he had spoken to McNeil and that McNeil had indicated that he was not going to file an appearance on defendant's behalf. The cause was continued until March 22, 1976, so that defendant's wife could speak to McNeil.

The next court appearance noted in the record was March 29, 1976, at which time the court tendered to counsel a report from Dr. Kelleher of the Psychiatric Institute. The report concluded that defendant was fit to stand trial. Reilley requested that a private psychiatrist interview defendant and renewed his motion to withdraw, stating that defendant would not cooperate with him. Defendant stated that he did not wish to be represented by Reilley or by a public defender, and that he was incapable of representing himself. The court then noted that since March 8, 1976, defendant had requested another attorney and that two attorneys had been consulted but neither had filed an appearance. The court denied Reilley's motion to withdraw. Defendant then made an oral motion for substitution of judges, stating that it was impossible for him to receive a fair trial. The court denied the motion but advised defendant that he could file a written motion. The case was set for trial for the following day.

On March 30, 1976, defendant initially refused to enter the courtroom, and when brought out of the lockup stated that he was not ready for trial, that the court was forcing him to trial and that he had a right to counsel of his choice. Defendant stated that he did not wish to represent himself, and that he did not wish to be represented by Reilley or by a public defender. The court replied that defendant had had ample opportunity to secure counsel, that three attorneys had been contacted but none had filed an appearance and that defendant was dilatory and attempting to avoid trial. The court denied defendant's motion for an independent psychiatric examination, and the prospective jurors were called and sworn in. When Reilley was introduced as defendant's counsel, defendant stated he wanted the jury to know that Reilley was not his attorney and that he did not have an attorney. The court then questioned the jurors as to whether they had prior knowledge of defendant or of the case. None of the jurors answered affirmatively.

On March 31, 1976, the cause was continued pending disposition of a petition filed by Reilley in Federal district court to ascertain his status as defendant's attorney. On April 2, 1976, Reilley advised the court that his petition in Federal district court had been dismissed for lack of jurisdiction, and he renewed his motion to withdraw. The court again denied the motion until such time as defendant could retain another attorney. Reilley then filed a motion to quash defendant's arrest and to suppress identification testimony and fingerprint evidence.

The following evidence was adduced at the April 5, 1976, hearing on the motion to quash defendant's arrest and suppress evidence: Police officer Gerald Corliss testified that on March 5, 1974, while investigating a robbery of a food store *fn3 he spoke to an eyewitness, Richard Evans. Evans stated that the store was robbed by three men, whom he described. Officer Corliss then asked Evans to look at an array of 10 to 15 police photographs. Evans viewed the photographs and when he saw defendant's picture, *fn4 he said, "This is the man" or "This looks like the man." However, Evans indicated that he wanted to view a lineup before he would sign a complaint. Evans also selected two other photographs from the array. Based upon this identification, Officer Corliss arrested defendant, without a warrant, on that same day. After his arrest, defendant was placed in a lineup and identified by Evans.

Police officer James Houtsma testified to substantially the same facts as Officer Corliss and further testified that three or four people viewed the lineup on the same day as Evans and on the next day, March 6, 1976, 35 to 45 persons viewed a lineup in which defendant participated. Officer Houtsma testified that an agent of the food store, not Evans, had signed the complaint.

Richard Evans testified that on March 5, 1976, he was employed as a security guard at a Jewel food store on 79th Street in Chicago which was robbed by three men. Evans gave descriptions of the three men to police and selected three photographs from an array of 10 to 15 photographs shown to him by police. When he selected defendant's photograph, he said, "This looks like one of them." Evans did not recall telling the officers that he wanted to view defendant in a lineup before he would make a positive identification. Later the same day, Evans identified defendant in a lineup. It was stipulated that Evans told Reilley that he gave a general description of defendant to police.

Chicago police officer Edmund Butz testified that he had investigated an armed robbery of a food store at 837 West 69th Street in Chicago which had occurred on January 30, 1974. This was the incident leading to the charge in the instant case. On March 6, 1974, Officer Butz was present when witnesses of the January 30 robbery viewed two lineups in which defendant participated.

After arguments by counsel, the trial court found that police had probable cause to arrest defendant and denied the motion to quash the arrest and suppress evidence.

Jury selection was conducted on April 8 and 9, 1976. On April 12, 1976, Reilley advised the court that on the previous day he had received an anonymous telephone call at his home during which the caller had requested that Reilley resign from defendant's case. Reilley opined that defendant had no knowledge of the call. Reilley again moved to withdraw from the case because he felt that someone was making threats against him.

On April 14, 1976, the trial court granted Reilley's motion to withdraw and appointed the public defender to represent defendant. Defendant objected to the appointment, stating that he wished to be represented by an attorney of his own choice. Defendant further stated that he did not wish to appear pro se. The public defender moved for a substitution of judge, for a change of venue and for discharge of the jury, all of which were denied. The public defender thereafter made a motion to continue the case for 30 days in order to prepare for trial. The court continued the case until April 26, 1976.

On April 26, 1976, defendant answered not ready for trial. He further stated that he did not wish to be represented by the public defender and did not wish to proceed pro se. Defendant advised the court that he had spoken to an attorney, Mr. Howard. The public defender made a motion to withdraw, stating that defendant refused to cooperate with him. The court denied the motion, and the matter proceeded to trial. During the assistant state's attorney's opening statement, defendant interrupted, stating that he was being forced to trial and that the judge would not give him time to retain an attorney. Outside the presence of the jury, the court warned defendant that if his outbursts persisted, he would be removed from the courtroom. After the prosecutor's statement, the public defender stated that he had no opening statement but that attorney Howard was present and wanted to speak to defendant. After a recess, the judge noted that he spoke to attorney Howard in chambers and Mr. Howard would not be filing an appearance at that time. The court then instructed defendant that he could make an opening statement which had to be confined to the evidence. Defendant then stated that he was being forced to trial against his will. Outside the presence of the jury, the court again warned defendant about his conduct, to which defendant replied that he would not sit and remain quiet. The court ordered defendant to be removed from the courtroom until he agreed to behave. The public defender noted for the record that defendant was not boisterous and had not raised his voice. Trial proceeded with the testimony of the first witness, Lawrence Rodney, without the presence of defendant. *fn5 After direct examination of this witness, the court recessed to permit the public defender to relate to defendant what had transpired in his absence. Defendant then returned to the courtroom to cross-examine this witness. *fn6 Following the testimony of several witnesses, the public defender advised the court that defendant did not ...


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