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People v. Thompson

OPINION FILED JANUARY 27, 1981.

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

v.

JESSIE THOMPSON, A/K/A OTIS WILLIAMS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. SAMUELS, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 2, 1981.

A jury found defendant, Jessie Thompson, also known as Otis Williams, guilty of robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 18-1.) He was thereafter sentenced to a term of 4 years. On appeal defendant asks this court to consider (1) whether the trial court abused its discretion when it denied defendant's motion for a continuance to secure privately retained counsel, (2) whether the trial court erred when it limited defendant's cross-examination of a witness, and (3) whether testimony regarding defendant's absence from trial was erroneously admitted.

On August 4, 1979, defendant was arrested for the robbery of Michael Podewell. Evidence at trial indicates that Podewell, a 14-year-old, went to the Lincoln Mall in Matteson, Illinois, to see a Saturday cinema matinee. At about 2 that afternoon he left an electronic games store inside the mall and walked toward the Cinema Theater. A man, later identified as defendant, asked Podewell whether he wanted to buy some marijuana. When Podewell refused, defendant asked, "Do you want to buy a diamond watch?" After Podewell again refused, defendant persuaded the boy to proceed with him to a corner of the mall area surrounded by bushes. Once they were within the bushes defendant cupped Podewell's mouth, threw him down, sat upon him, and while making a fist with his hand above Podewell's face, demanded money. Defendant took 2 tens, a five, and 3 one-dollar bills from the boy's wallet. Defendant then ran into the mall.

Podewell quickly telephoned local police. Police detective Lawrence Miller arrived, and Podewell gave him a brief description of the robber. Miller and a patrol officer entered the mall to search for the offender. Podewell accompanied Miller. Miller noticed a subject who fit the given description. Podewell pointed to the subject and said, "I am scared." The subject, defendant here, was in the company of another man on an escalator going up to the mall's second level. As the two disembarked the escalator, another uniformed police officer at the top of the stairs stopped them as suspects in the robbery. Miller and Podewell arrived soon thereafter. The boy identified defendant as his robber and defendant was arrested.

During an inventory search of defendant at the police station, police recovered 2 tens, a five, and 3 one-dollar bills. No other money was found in defendant's possession.

On August 20, 1979, an information charging defendant with the robbery was filed. Counsel was appointed. On September 14, defendant was present in court and the cause was continued by agreement of the parties. On September 28, the cause was again continued by agreement. On October 17, the parties agreed to and were granted another continuance. The trial date was set for November 14, 1979. On that trial date defendant requested a further continuance so he could retain private counsel. The trial court denied defendant's motion as untimely. A jury was selected on November 14, 1979, in the presence of the defendant. On November 15, defendant failed to appear in court and the cause was continued. Trial began the next day and was completed in defendant's absence.

I.

Defendant first contends the trial court abused its discretion when it denied his motion for a continuance. He argues that both Federal and State constitutions afford him the right to be represented by counsel of his own choice, that he had been incarcerated until about a month prior to trial, and that he needed additional time to retain a private defense attorney. Furthermore, he claims his motion was not dilatory and therefore the trial court's reason for the denial must be rejected. We disagree.

This court has previously addressed similar claims. In one recent case we stated general propositions of the governing law as follows:

"A defendant's right to be assisted by counsel includes the right to be represented by counsel of his own choice. [Citations.] However, `it is likewise true that such right may not be employed as a weapon to indefinitely thwart the administration of justice, or to otherwise embarrass the effective prosecution of crime.' [Citation.] Determination at the point at which a defendant's right to counsel of his choice unreasonably interferes with the administration of justice necessarily depends upon the particular facts and circumstances of each case. [Citation.] Thus, the granting of a continuance to permit substitution of counsel * * * is a matter resting within the sound judicial discretion of the trial court [citation], and the trial court's decision will not be disturbed absent an abuse of discretion." (People v. Langdon (1979), 73 Ill. App.3d 881, 888, 392 N.E.2d 142.)

(See also Ill. Rev. Stat. 1979, ch. 38, pars. 114-4(e), (h).) Moreover, a conviction will not be reversed unless it appears that the refusal of additional time "in some manner embarrassed the accused in preparing his defense and prejudiced his rights." (People v. Solomon (1962), 24 Ill.2d 586, 589-90, 182 N.E.2d 736, cert. denied (1962), 371 U.S. 853, 9 L.Ed.2d 87, 83 S.Ct. 94; see also People v. Spurlark (1978), 67 Ill. App.3d 186, 203, 384 N.E.2d 767, appeal denied (1979), 74 Ill.2d 589.) Our application of the above principles to the instant case compels the conclusion that the trial court did not err.

• 1 Defendant's request for a continuance in order to seek out and retain private counsel was untimely. Although defendant was incarcerated pending trial for two months after his arrest, he was released from custody about a month prior to the date set for trial. From the time of his release until the date set for trial, defendant failed to secure private counsel. He waited until a week before trial to inform his public defender that he wished to retain other counsel, and the trial court was not informed of that wish until after a colloquy regarding jury selection on the trial date. Furthermore, neither defendant nor his counsel disclosed any steps taken to secure private counsel. Thus, after three continuances, albeit agreed to among the parties, the trial judge could properly conclude that its granting of defendant's motion for a continuance would unreasonably interfere with the administration of justice. *fn1 In addition, defendant failed to attend the trial. When this fact is ...


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