APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of theft (Ill. Rev. Stat. 1977, ch. 38, par. 16-1) and sentenced to a prison term of seven years. On appeal, he contends: (1) that he did not knowingly and intelligently waive his constitutional right to be represented by counsel; (2) he was denied effective assistance of counsel; (3) he was denied his constitutional right to assistance of counsel of his choice; (4) he was denied due process by the trial court's failure to conduct a hearing on his fitness to stand trial and be sentenced; (5) he was denied his constitutional right to confrontation and cross-examination where hearsay evidence was relied on to supply proof of an essential element of the offense; and (6) he was not proven guilty of theft beyond a reasonable doubt. We reverse and remand for a new trial because defendant did not knowingly and intelligently waive his constitutional right to be represented by counsel.
At about 8:30 p.m. on October 3, 1977, Officer Charles Brown observed a 1977 Pontiac Trans Am, which was headed northbound on Lake Park, going through a red light at 53rd Street. He turned on the emergency equipment in the automobile in which he was travelling and pursued the car. At 47th Street, the car stopped at a traffic signal and Brown, using his loud speaker, ordered the driver of the car to pull over to the side of the road. The car crossed 47th Street and eventually pulled over to an empty parking spot in the 4600 block of Lake Park. As Brown approached the car, the driver turned around and Brown was able to see his face. Before Brown was able to reach the driver's door, the car quickly pulled away from the curb. Brown then got back into his vehicle, called for assistance, and began chasing the fleeing car. He chased the car for about 20 minutes, up and down side and main streets, travelling at speeds of up to 90 miles per hour. Eventually the fleeing car hit an unmarked police car on Cottage Grove and came to a halt in a vacant lot. Brown then again went up to the car and this time ordered the driver to step out of the car. When he did, Brown recognized the driver as the same man he had seen in the car in the 4600 block of Lake Park, and, at trial, identified the man as defendant. The driver identified himself as Robert Woods and told Brown that he did not have a driver's license. As Brown looked into the car, he noticed a temporary registration permit on the inside windshield. The permit contained the name David Sarvedra, not Robert Woods. Later that evening, Brown called Sarvedra. After the call, he charged defendant with possession of a stolen vehicle.
David Sarvedra identified the 1977 Pontiac Trans Am as a car which he had recently purchased from a car dealer at 5300 North Broadway. He was the record owner of the car. He said that late in September of 1977, he had returned the car to the dealer for servicing. He said that he did not know defendant, never gave him permission to drive the car, and never gave anyone else permission to allow defendant to drive the car. He also said that his uncle, who had co-signed for the car but who was not an owner of it, did not give defendant permission to use the car.
Richard Hoby, a manager at the car dealership where Sarvedra purchased his car, stated that he was familiar with the employees of the dealership and knew that defendant was not an employee there. He confirmed Sarvedra's statement that he returned his car for servicing, and stated that neither he nor any other employee of the dealership, to his personal knowledge, gave defendant permission to drive Sarvedra's car from the dealership.
Defendant contends that the circumstances of this case were such that he was tried without assistance of counsel, even though he did not first knowingly and intelligently waive his constitutional right to be represented by counsel.
Defendant was arrested on October 3, 1977, and on October 13, he filed a pro se motion for appointment of a bar association attorney rather than the public defender. As grounds for the motion, defendant stated that assistant public defenders are assigned to courtrooms and not individual defendants and that an alleged report on the public defender's office indicated certain inadequacies in the office. The record contains no ruling on this motion. Notwithstanding this motion, on October 20, an assistant public defender filed an appearance on behalf of defendant. On December 20, the assistant public defender filed a discovery motion at the same time that he demanded trial. On December 28, while still demanding trial, defendant again filed a motion for appointment of a bar association attorney. On this occasion, the trial court denied his motion.
Defendant once again filed a motion for a bar association attorney on February 21, 1978. On this occasion, the assistant public defender, who had been assigned to represent defendant, also moved the court to allow him to withdraw as defendant's counsel in favor of a bar association attorney. He requested permission to withdraw because defendant refused to cooperate with him. During discussion of the motions, defendant told the court that he was a "Morrish American" and wished to observe "all rights of this United States Court." After discussion, the court denied defendant's motion, stating:
"You have the alternative, Mr. Woods, of representing yourself with the availability of a public defender in the event you wish to ask him any questions or you have the right to have Mr. have a public defender represent you and in that event, I'd suggest that you do cooperate with the public defender.
The case is set for trial. If you want to get a private lawyer, the Court will give you time to get a private lawyer. But if you want the Court to appoint a lawyer you have the public defender the County provides and pays and that's the attorney you're going to have."
After this statement, the assistant public defender informed the court that it would be impossible for him to adequately represent defendant. The court then asked how old the case was and, after being informed that defendant had been arraigned on November 17, 1977, asked defendant if he wished to represent himself. Defendant stated that he was not an attorney and did not want the public defender's office to represent him. The court then informed defendant that he would go to trial on that day and that he would either represent himself or allow the public defender's office to represent him. At this point, defendant asked the court if he could make a telephone call to a friend. When the assistant public defender asked if he wished to make the call to obtain an attorney, defendant stated that he was calling "someone." The court allowed the phone call, but told defendant that he was going to trial unless he obtained an attorney.
Later in the day on February 21, a jury was called and the court read the information to the prospective jurors, with defendant present. After this was completed, the court introduced the attorneys to the jurors. After introducing the assistant public defender as defendant's attorney, defendant informed the jurors that the assistant public defender was not his attorney and that he had not requested that he represent him. The assistant public defender then moved for a mistrial based on the comments of defendant. Despite the assistant public defender's protestations that he could not control defendant, the court denied the motion. After the denial, the State informed the court that the case had come up four or five times since the arraignment, and that on each occasion, defendant had demanded trial. Also, they informed the court that there were less than 14 days left in the term. The assistant public defender again moved the court to allow him to withdraw as counsel and explained that although it was true that defendant had consistently demanded trial, he had counseled him otherwise. The court did not grant the motion, but it did warn defendant against further outbursts and told him that he had a choice of ...