APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants were convicted of burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1) and possession of burglary tools (Ill. Rev. Stat. 1975, ch. 38, par. 19-2). Defendant Smith was sentenced to a prison term of eight years for burglary and defendant Gillespie to a term of three years. Both defendants were sentenced to prison terms of one to three years for possession of burglary tools. On appeal, defendants present these arguments: (1) the trial court erred in denying their motions for a substitution of judges; (2) the trial court erred denying their motion in limine; (3) they were deprived of their right to counsel; (4) they were deprived of their constitutional rights to present a defense; (5) the prosecutor's misconduct deprived them of their right to a fair trial and (6) they were not proven guilty beyond a reasonable doubt. We affirm the trial court.
Defendants were arrested on April 11, 1977, and charged with burglary and possession of burglary tools. A trial date had been set for April 10, 1978. On that date, Anthony B. Eben, Jr., defendants' counsel, was not present but his legal assistant appeared informing the court that Eben was about to start trial elsewhere and requesting a continuance.
Judge Robert L. Massey informed the legal assistant the matter was set with subpoenas for trial. The court contacted Eben, and he informed the court that he was about to conduct voir dire in another courtroom. The court replied that he was required to file an affidavit stating that he was on trial elsewhere.
The court then requested the prosecution to verify that Eben was on trial elsewhere. It was ascertained that he would go to trial in the other case within the next three days. The court then ruled that he was on trial in the present case and should proceed. Eben stated the defense was not ready to proceed. He indicated there was a bill of particulars outstanding as well as a subpoena which had not been complied with by John Lapka, owner of the burglarized jewelry store.
The court responded that Eben took this case over in October 1977 and had demanded trial on December 14, 1977. The matter was set for subpoenas on January 26, 1978, but continued to March 13, 1978, when a motion for a bill of particulars was filed. The matter was continued again to April 10, when the defendants filed a petition to reconsider orders denying their request for insurance claims. The court pointed out to Eben that he had failed to notify either the court or the State's Attorney's office that he was not ready to proceed. He indicated the defense had changed its theory of the case, and there were new witnesses involved. The court then told him that he should have notified the State prior to the date of trial. Eben stated he would not proceed, whereupon he was held in contempt and taken into custody.
The State checked on the status of the other trial and discovered that the matter was continued on motion of the People until April 15. The court stated that since Eben was not on trial elsewhere, he was on trial in the present case. Eben indicated his clients had revoked his authority to act for them and therefore requested leave to withdraw. The court informed him that he was on trial. He then requested one week to prepare for trial, which was denied. The court ordered him held in custody as long as he refused to proceed to trial. When the court reconvened that afternoon, his attorney, Frank Oliver, appeared and requested a hearing on the contempt matter. The court indicated that the matter before it was the present case. Eben again stated that he had no authority to act for defendants. Defendants informed the court that they did not want him to represent them if he was not ready.
Eben indicated that defendants had a motion for substitution of judges. He then stated that the defense's discovery motion had not been complied with by the State, and they had not received their bill of particulars previously filed. Defense counsel went on to argue that there had never been a hearing on the motion for reconsideration related to notices of insurance claims. These claims, defendants asserted, would have mitigated their guilt. Therefore, defendants claimed that they were not ready to proceed to trial and that forcing them to proceed under these circumstances was prejudicial. The court denied the motion.
The court indicated Eben was the attorney of record in the case. It noted that when Anthony Pacelli, the previous attorney, withdrew, the defendants were told whoever they next retained would have to bring the case to its conclusion. Therefore, Eben knew he should be ready for trial when he demanded such on December 14, 1977.
Defendants asked about their bill of particulars and witnesses. The State responded that the question raised in the bill of particulars concerning the exact location of the police officers when they observed defendants on the date in question was answered in its answer to discovery filed in June 1977. The court stated that defendants had one or two days to get their witnesses before the State would be finished with its case. Defendant Smith also inquired about the subpoena sent to Lapka regarding insurance claims. The State responded that no insurance claims were made for the property since it was recovered. Police inventory sheets were also requested, which the State indicated would be tendered either that day or the next.
Defendants submitted a motion for a mistrial before the proceedings began on April 11, 1978. Eben told the court he was not responsible for it, but was acting "as sort of an interpreter, to in effect relate to the court what their feelings are as far as they're concerned." The court reiterated that Eben was the attorney of record. Defendants stated again that they did not want him to represent them because they were not prepared for trial. The court denied the motion for a mistrial.
Defendant Smith requested in a motion in limine that his previous convictions, which he alleged to be over 10 years old, not be used against him. The State indicated that there was one conviction which was within eight years from defendant's release from prison which would be used for impeachment purposes if it became relevant. Eben stated that the prejudicial effect of allowing this conviction outweighed any probative value. The court determined that the jury could weigh the conviction carefully in hearing all the evidence to determine Smith's credibility as a witness, whereupon the court denied defendant Smith's motion in limine.
Voir dire was completed and the court requested counsel to make opening statements. Eben informed the jury that he was ordered by the trial judge to represent the defendants against their will, whereupon the judge admonished him to confine his comments to the opening statement. He then told the jury that the evidence would show he had no authority to act on behalf of defendants.
Officer Paul Nielson testified that on April 11, 1977, at 3:12 a.m. he and his partner, Officer James Bednarkiewicz, were in a marked car in the area of 47th Street and Marshfield when they heard the sound of glass breaking. He observed defendants standing in front of Lapka's Jewelry Store. Smith was walking towards a vehicle with a small box in his hand and Gillespie had his hand inside the security gate and window of the store. When the police car approached the car, Smith dropped the box he was carrying and then began to throw out other boxes inside the car. He was placed under arrest and the boxes of jewelry were recovered from the sidewalk and inside the car. The store owner identified the jewelry as his, and it was turned over to him. On cross-examination, Officer Nielson stated that when he heard the glass break, he was about three-quarters of a block away from the jewelry store.
Frank Oliver, Eben's attorney, appeared in court after Officer Nielson finished testifying and requested an immediate hearing on Eben's contempt charge. The court stated that Eben had purged himself from the contempt charge since he was participating in the trial.
Defendants filed a motion for a mistrial on the ground that the court held their counsel in contempt because he said he would not proceed to trial. They also filed their amended answer to the State's motion for pretrial discovery. The court stated for the record the sequence of events leading to Eben's contempt charge, but noted, however, that he had participated in the trial. The court indicated that there was no hostility or any prejudice directed at defendants and so accordingly denied their motion for a mistrial.
Defendants then wanted to present Lapka with a subpoena that requested an inventory list of lighters offered for sale between April 1, 1977, and June 1, 1977. The prosecution objected, indicating there had been no showing of relevance. The court ruled that Lapka would not be compelled to bring in any documents until he was on cross-examination.
Officer Bednarkiewicz testified that as he approached the jewelry store, he saw defendants in front of the jewelry store. He pulled the squad car behind defendants' open convertible car and saw Smith throwing items out of the back seat. Gillespie began walking away and dropped something to the ground. The officers placed both defendants under arrest and began picking up the items from the sidewalk and the back seat of the car. Officer Bednarkiewicz further testified that he found a tire jack in the back seat of the vehicle. On cross-examination, he stated that prior to turning on 47th Street, they had stopped at a nearby gas station to use the restroom. He indicated that he did not mention the tire jack in his police report.
John Lapka, the jewelry store owner, next testified that he lived in the back of his store. He was awakened by the telephone around 3:30 a.m. and saw his nephew and the police through the store's front window. When he went outside, his nephew pointed to the broken window. Subsequently he went to the police station and identified the items taken from the store. On cross-examination, Lapka testified that Gillespie and his family with another fellow came to the store about a week after the burglary.
Eben decided to withdraw the subpoena of Lapka's lighter inventory as the information he requested had been elicited on cross-examination. The State rested their case, whereupon defendants moved for a directed verdict, which was denied.
The next day, Eben told the court that a Ray Proczak had come to his office approximately one month before with defendants and implicated a Virgil Brandt in the burglary. He then moved for a suspension of the trial pending an investigation by the State's Attorney. The court denied this motion.
Eben called Smith to testify and began by asking him if he had been ordered not to discuss their relationship before the jury. The court admonished him to refrain from further discussion of this and warned him he would be held in contempt if he continued to do so.
Smith testified he had been convicted of armed robbery in 1966, violated parole in 1968, and was sentenced to 3 1/2 years. He was released in 1970 and has had no further convictions. He further testified that on April 10, 1977, he and Gillespie had been drinking and driving around for some time. He drove to a gas station to get some gas and cigarettes. He stated that the attendant wanted to know if he had a jack, since two ladies had a car with a flat tire. He helped the attendant change the tire and threw the jack in the back seat of the car since the trunk lock was difficult to open. After leaving the gas station, he and Gillespie drove down 47th Street towards Smith's sister's house. They noticed a window in the jewelry store was broken, whereupon he stated to Gillespie, "let's check it out." Smith made a U-turn and parked in front of the jewelry store. He and Gillespie got out of the car and began to pick up the boxes they saw lying on the sidewalk. When they saw the police coming, they dropped the boxes on the sidewalk. He further testified that Gillespie never stuck his hand inside the window of the jewelry store.
Approximately one week after the incident, Smith, his mother, wife and son, along with Gillespie, went to see Lapka and Lapka asked them to leave. Smith testified he would have made restitution to avoid prosecution.
Gillespie testified that they spent the Sunday in question eating and drinking first at Smith's sister's house and later drinking and driving in Smith's convertible. They stopped at a gas station where Smith helped the attendant change a flat tire. When they left the gas station, they went down 47th Street where Smith noted there was a hole in the jewelry store window. They pulled up in front of the store, got out of the car and began picking up boxes when the police arrived. He ...