Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. James E. Strunk, Judge, presiding.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In a jury trial in the circuit court of Cook County, defendant, John Myles, was found guilty of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2), and sentenced to the penitentiary for a term of not less than 35 nor more than 60 years. The appellate court reversed and remanded (83 Ill. App.3d 843), and we allowed the People's petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues.
On June 14, 1974, defendant was charged by indictment with armed robbery committed on January 30, 1974. He was arraigned on July 5, 1974. At the arraignment the law firm of Smith, Reilly, Bell and Weinberg, by Mr. Tyce Smith, filed an appearance as defendant's attorneys. Thereafter, several preliminary motions were presented in defendant's behalf and the case was continued a number of times. Throughout the proceedings James Reilly appeared for defendant. On March 8, 1976, Mr. Reilly advised the court that defendant no longer desired his services and requested permission to withdraw. Defendant confirmed this, saying he thought Reilly had not protected his rights. The trial court denied Reilly's request to withdraw and stated that he would not permit Mr. Reilly to withdraw until another attorney appeared for defendant. The court continued the cause pending defendant's efforts to secure an attorney. On March 17, 1976, defendant stated that he had spoken with attorney E. Duke McNeil and thought that he would take his case. The court instructed defendant that Mr. McNeil should appear the following morning. On March 18, 1976, the State's Attorney said he had spoken to McNeil, who stated he did not intend to file an appearance. Defendant said that he was attempting to raise money to pay McNeil's fee and the court continued the matter again. On March 29, 1976, Reilly again moved for leave to withdraw, noting that defendant had refused to cooperate in the preparation of a defense. Defendant stated that he did not want to be represented by Reilly or by the public defender and that he was unable to represent himself. The case was set for trial the next day.
On March 30, 1976, defendant refused to leave the lockup and enter the courtroom. Brought out of the lockup, he stated that he was not ready for trial, that he did not desire to be represented by Reilly or the public defender, and that he needed time to obtain another lawyer and acquire the money to pay him. Thereafter, prospective jurors were called and questioned. When Reilly was introduced as defendant's attorney, defendant said that he did not have an attorney and Reilly was not representing him. After the jurors were sworn the case was recessed until March 31, 1976. On that day the case was continued pending disposition of a petition filed by Reilly in the United States District Court for the Northern District of Illinois to determine whether he could be compelled to act as defendant's attorney. On April 2, 1976, Reilly advised the court that his petition was dismissed by the district court for want of jurisdiction. Defendant again stated that he did not want Reilly as his attorney and Reilly again moved to withdraw. The court denied the motion to withdraw until another attorney appeared to represent defendant and directed Reilly "to do everything that he can possibly do" on defendant's behalf. Thereupon, Reilly filed a motion to quash defendant's arrest, to suppress identification testimony, and to suppress fingerprint evidence. On April 5, 1976, a hearing was conducted on the motions presented by Reilly and the court determined that the police had probable cause to arrest defendant and denied all motions.
On April 8 and 9, 1976, a jury was selected and the defendant again requested time to hire another lawyer. On April 12, 1976, Reilly reported to the court that he had received an anonymous telephone call at his home during which the caller requested that Reilly resign from defendant's case and made "implied or direct threats" to Reilly and his family. He again moved for leave to withdraw from the case.
On April 14, 1976, the circuit court allowed Reilly's motion to withdraw and, over the objection of both the public defender and defendant, appointed the public defender to represent defendant. The public defender moved for a substitution of judge, for a change of venue, and for discharge of the jury. The motions were denied. The public defender also moved to continue the case for 30 days, and the court continued the case until April 26, 1976, in order that the public defender might prepare for trial. Prior to adjournment, an assistant public defender had defendant sworn and asked "If this case goes to trial do you wish us to do anything on your behalf during the course of that trial?" The defendant answered "No."
On April 26, 1976, when questioned by the court, defendant stated that he was not ready for trial because he did not have a lawyer, that he could not proceed pro se, and that he did not desire the services of the public defender. The public defender again requested permission to withdraw and stated that defendant had not cooperated in the preparation of a defense. Permission was denied and the case proceeded to trial. During the assistant State's Attorney's opening statement, defendant interrupted, stating that he was being forced to trial, that he had no attorney, and that the judge would not allow him time to obtain one. The jury was removed and the court asked for defendant's assurances that he would remain orderly. Defendant was warned that he would be removed should another "outburst" occur. As the court ordered the jury to be brought in, defendant said, apparently to the assistant public defenders, "I don't want you by me. I don't want you saying nothing, doing nothing, don't sit by me." Counsel indicated that they would comply with defendant's wishes and would sit in the first row of seats in the courtroom, away from defendant.
After the People's opening statement both assistant public defenders approached the bench and informed the court that they would make no opening statement because defendant refused to discuss the case with them and did not desire them to represent him. They also called to the court's attention that George Howard, an attorney whom defendant had mentioned previously, was present. Following a recess, defendant stated that Howard would not file an appearance because the court refused to allow him time to prepare. The court noted that it had spoken to Howard in chambers and that he would not be filing an appearance.
Defendant was asked whether he would like to make an opening statement confined to the evidence. Defendant said he would like to address the jury in order to explain that he was being forced to trial against his will. Defendant was told that his opening statement was to be limited to the facts of the case. The court then explained to defendant that he could have one or both appointed attorneys represent him or he could represent himself. After defendant stated that he would continue to make statements to the jury, he was removed until he agreed to conduct himself in an orderly manner. Testimony from the first witness was taken in defendant's absence. During that testimony, defendant's presence was sought for the purposes of identification. He refused to enter the courtroom and removed his clothing. The court ordered the sheriffs to dress defendant and bring him to the doorway of the courtroom. Defendant, wearing only his underwear, came to the doorway accompanied by eight deputy sheriffs. At the conclusion of the witness' testimony, defendant returned to the courtroom and, after the testimony was summarized for him by the assistant public defenders, conducted a brief cross-examination of the witness. Defendant was present for the remainder of the trial and cross-examined two more of the People's witnesses. He objected to the admission of certain items of evidence and to the instructions tendered by the People. Defendant attempted to elicit the testimony of two witnesses on his behalf, and conducted his own closing argument. Periodically throughout the trial the two assistant public defenders appointed to represent defendant advised the court that they were instructed by defendant not to participate in the trial, and statements by the defendant confirmed this. Nonetheless, on several occasions the assistant public defenders informed the court of objections they would make if permitted to do so by defendant. They also were available to advise defendant throughout the trial and did so several times.
The appellate court held that because defendant was not admonished as required by Supreme Court Rule 401(a) (73 Ill.2d R. 401(a)) there was no knowing waiver of the right to counsel. Supreme Court Rule 401(a) provides:
"Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior ...