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People v. Derra

OPINION FILED JANUARY 23, 1981.

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

v.

DUANE A. DERRA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Ford County; the Hon. WILLIAM M. ROBERTS, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Did defendant effectively waive counsel?

No.

We reverse and remand.

Derra was convicted by a jury of driving under the influence of intoxicating liquor and was sentenced to one year probation with no fine and ordered to attend an alcoholism program. He now appeals, contending that he did not effectively waive counsel.

On December 21, 1979, a complaint was filed charging Derra with driving under the influence of an intoxicating liquor. On January 25, 1980, defendant filed a motion for appointment of counsel asserting that he was indigent. Three days later, on January 28, the public defender was notified of his appointment to represent the defendant.

Then, on February 20, 1980, a hearing was held at which time the defendant expressed the desire to represent himself. At this time, the trial court ascertained that the defendant was 18 years old, understood the charge against him, and had a 9th grade education. The court also advised the defendant that the case was to go to jury trial in the next week and that the State "was not waiving the possibility of asking for a jail sentence" on the charge. The court also asked the defendant if he understood that he "may not be too well equipped to proceed without an attorney," and defendant responded affirmatively. The court allowed defendant's motion to represent himself but appointed the public defender to be present in an advisory capacity.

A jury trial was held on March 3, 1980. The record reflects that the public defender was present to advise the defendant. Defendant made an opening statement in which he stated that he pleaded not guilty because he was not drunk and the officer smelled cigar smoke — not alcohol — on his breath. Defendant noted that he had never had a traffic violation and that his brother had sent him a letter stating that the "Paxton police was up to nail me and my brother, Gene, for anything driving." Defendant asserted he had a letter to prove it.

Paxton City Police Officer Walter Whitehill testified for the State that he received a radio transmission while on duty at 8:53 p.m. on December 19, 1979. He located the vehicle described in the radio message. He observed the car screech its tires and followed it. While the car remained in its lane, "the driver's moves were very erratic * * *."

Whitehill pulled alongside the car and defendant exited the driver's side. Defendant had to use the vehicle to maintain his balance. When Officer Whitehill approached defendant, defendant stated he was drunk, that he had consumed two quarts of beer, and was on his way home. The officer stated that he was within one foot of the defendant at this time. Whitehill testified that defendant had a strong odor of alcoholic beverage on his breath and that he was sure that it was not a cigar odor. The officer stated that defendant failed one field sobriety test and performed poorly on another. In Whitehill's opinion, defendant was under the influence.

The defendant conducted the following cross-examination:

"CROSS EXAMINATION BY MR. DERRA (THE DEFENDANT)

Q. After the alleged spinning of tires, you followed me clear to the laundry mat?

A. Yes, sir.

Q. Why did you follow me to the laundry mat and not stop ...


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