APPEAL from the Circuit Court of Franklin County; the Hon.
ROBERT S. HILL, Judge, presiding.
MR. JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
David Barnard was convicted of three counts of taking indecent liberties with a child on March 19, 1980, following a jury trial at which he represented himself with an assistant public defender appointed to assist him. Barnard was sentenced to 13 years in prison on each count, the sentences to run concurrently.
On appeal the defendant maintains that his behavior prior to trial raised a bona fide doubt of his fitness to stand trial and imposed a duty on the court to hold a fitness hearing on its own motion. Also, since one judge refused to allow him to waive counsel and proceed pro se, the defendant maintains that it was error for another judge to accept that waiver without a determination of the defendant's fitness to stand trial.
On October 29, 1979, David Barnard was charged by information with three counts of taking indecent liberties with two children the day before. He was arrested and brought before Judge Robert Hill the same day. Judge Hill appointed E. Kyle Vantrease, a public defender, to represent Barnard after finding him to be indigent.
On November 21, 1979, a preliminary hearing was held before Judge Loren Lewis. Kyle Vantrease represented the defendant. Barnard conferred with Vantrease at a recess in the hearing, but did not testify. Probable cause was found, and Barnard was bound over for trial.
On December 18, 1979, Barnard appeared for arraignment before Judge Lewis with Vantrease, his lawyer. At first he stated he did not understand what he was charged with. After the judge repeated the charges, Barnard indicated he did not have any questions. The defendant, when asked how he pleaded, conferred briefly with his attorney, then informed the court that he wished to dismiss his counsel. Judge Lewis questioned Barnard and warned him of the difficulty of proceeding pro se to a jury trial. After conferring again with Barnard, Vantrease reported to the judge that the defendant said he hadn't eaten for seven days. Judge Lewis denied Barnard's motion to dismiss his counsel and set the case for trial, stating that he felt Barnard was not in any condition to make the decision to represent himself at that time. Barnard announced that he felt the judge was prejudiced against him and should recuse himself. The judge told Barnard to reduce the motion to writing and it would be granted.
January 2, 1980, Kyle Vantrease filed a motion for the appointment of a psychiatrist to examine the defendant, report, and be available to testify regarding the defendant's mental state at the time of the alleged offense. On January 31, 1980, the defendant's answer to the State's discovery motion was filed, indicating insanity as a possible intended defense.
On February 1, 1980, the state's attorney filed a motion for psychiatric examination by a psychiatrist named by the prosecutor for the purpose of challenging the defense of insanity. At no time did either side file a motion for a hearing on the defendant's fitness to stand trial. The State's motion for a psychiatric examination was granted and the exam was scheduled for February 12, 1980. The trial was scheduled for February 19, 1980.
The state's attorney discovered in the court file a pro se motion for discharge of counsel and representation pro se that had been filed by the defendant on January 30. No copies had been served on anyone and it had not been brought to the attention of the court. Judge Charles Quindry held a hearing on the motion at the State's request on February 11, 1980. Among other allegations in the motion, Barnard accused Vantrease of lying to him. Kyle Vantrease denied any wrongdoing but indicated to the court that he felt he could no longer represent Barnard effectively given Barnard's feelings. Judge Quindry questioned David Barnard at length and repeatedly admonished him regarding his right to appointed counsel, the difficulty of proceeding pro se, and the seriousness of the charges. Barnard indicated that he wished to represent himself with the assistance of a court-appointed lawyer, not as his attorney but to do legal research and "second-chair" him. The judge, after telling Barnard that it was not in his best interest to proceed pro se, granted the motion and appointed D. Michael Riva, another assistant public defender, to assist the defendant.
The defendant, acting in his pro se capacity, filed numerous hand-printed motions between February 13, 1980, and his trial on March 19, 1980. The language of the motions and Barnard's arguments in court were elaborate, sprinkled with legal terminology, repetitive, and often confusing.
On March 10, 1980, the defendant appeared before Judge Robert S. Hill and argued his pretrial motions. The judge ruled on the motions and the matter proceeded to trial nine days later. On March 19, 1980, when David Barnard was brought to court for trial, the judge again questioned his desire to proceed pro se. Barnard did not want to go to trial at all, but faced with a denial of a continuance, he elected to continue on his own. The judge gave him time to shave and change clothes, then reconvened to pick a jury. Michael Riva sat at the counsel table with Barnard and conferred with him several times during the course of the trial. Barnard, however, did all the talking. He cross-examined witnesses and made a brief opening statement. He did not present witnesses or make a closing argument. He took part in a conference on jury instructions and objected to several of the State's instructions. He raised objections during the trial.
After deliberating, the jury found the defendant guilty on all three counts of indecent liberties.
Between the trial and the sentencing hearing on May 12, 1980, Barnard filed several motions including one in arrest of judgment and a "pre-sentence investigation" report of his own. Although again being given the opportunity to be represented by counsel at the sentencing hearing, Barnard chose to continue pro se. He argued his post-trial motions and the court treated his "pre-sentence investigation" as written argument in mitigation. Judge Robert Hill sentenced David Barnard to three concurrent terms of 13 years in prison on the three counts. From the judgment of guilty and the sentence, the defendant appeals.
Barnard contends on appeal that the defendant's outbursts at the various proceedings following the preliminary hearing, his refusal to eat prior to arraignment, his attempted and actual waiver of counsel, and the delusional content of the allegations in his motions and arguments to the court, when coupled with both his counsel's and the State's separate request for independent psychiatric evaluations, raised a bona fide doubt of the ...