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People v. Gornick

OPINION FILED JUNE 22, 1982.

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

v.

JAMES GORNICK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. BOSCO, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant was convicted by a jury for the armed robbery of a Certified Grocery store on January 24, 1976, in Oak Park, and was sentenced to 30 years in the Illinois Department of Corrections to be served concurrently with another sentence imposed in connection with a River Forest armed robbery committed on June 15, 1976. This is an appeal from the Oak Park robbery conviction.

This appeal presents issues related to asserted trial errors, sentencing errors and errors relating to substitution of the judge and appointment of counsel.

For the reasons which follow, we affirm.

At trial evidence was adduced which revealed that Shelly Dunlap, a cashier at the Certified Grocery, at 5:45 p.m. on January 24, 1976, was asked by defendant to put the money in his grocery bag. Defendant opened his jacket; she saw a gun sticking out of his pants, and gave him all the paper money in her register. Defendant was sloppily wearing a light brown wig and had "very distinguishable blue eyes." Her employer, John Vlahos, followed defendant out of the store. She identified defendant in a lineup on June 17, 1976. She also made an in-court identification of defendant at trial. The time lapse from the moment defendant spoke with her until he left was 2 or 3 minutes. Her attention was not "totally devoted" to defendant. The actual robbery itself took 30 seconds or less.

Vlahos, the owner and manager of Certified Grocery, testified that he was working the second register, next to Dunlap, and noticed a robbery "going on." He saw defendant from a distance of 6 to 10 feet, under normal lighting conditions. He observed a gun about defendant's person and saw Dunlap give defendant money. He followed defendant outside the store and heard a gunshot. At 6:30 or 7 p.m., the police brought him a person to identify whose appearance was completely different than the perpetrator of the crime, from the standpoint of his hair and jacket. On June 17, 1976, at a lineup, he identified defendant as the offender. He also identified defendant in court at trial. On cross-examination, Vlahos stated he could not tell whether defendant had on a wig or not. Defendant had "bright" eyes but he could not tell their color.

Officer Charles Schauer's testimony with respect to the circumstances surrounding defendant's lineup shortly after the incident was substantially consistent with Vlahos'. Schauer stopped defendant, searched his car but found no weapon, money or groceries.

On November 9, 1976, a hearing was held on defendant's motion to quash and suppress before Judge Francis Mahon. At that hearing, defendant was represented by assistant public defenders Gerald Winiecki and Gary Stanton. James Maher, a River Forest policeman, testified he had presented a complaint and warrant to Judge Mahon at his home, stating that: defendant's picture was identified as the person who committed the River Forest offense by a witness; defendant admitted being in the area at the time; defendant fit the physical description; and his car was seen in the area at the time. Judge Mahon issued the warrant. Maher and several other officers arrested defendant in his home. At approximately 10 p.m. on June 15, 1976, he was placed in a lineup. Two witnesses failed to identify him. He was held in jail overnight in River Forest. At 10:30 a.m. the next day, defendant contacted his attorney, Jack Dempsey. The record is silent as to whether Dempsey ever appeared at the police station. Defendant's request to have his attorney present prior to any further lineups was denied. In a second lineup, held at 1 p.m. that day, in which everyone was wearing wigs, defendant was identified by two witnesses from the River Forest incident, and thereafter two witnesses to the Oak Park robbery identified him as the perpetrator of the Oak Park robbery. The court denied the motion to quash arrest and suppress the River Forest identification. A motion to quash the Oak Park identification was continued.

On November 17, 1976, defendant moved to remove Stanton and Winiecki as counsel, in part, because they were "frauds." At a subsequent proceeding, although the court found these attorneys "very competent lawyers," it appointed new counsel, assistant public defender Daniel Radakovich, and denied defendant's motion for a Chicago Bar Association attorney. The court granted defendant leave to file a pro se motion to quash arrest and suppress evidence and to suppress identification in both the River Forest and Oak Park cases if he could bring in new evidence beyond that presented at the November 9 hearing.

On January 13, 1977, defendant informed the court that he had obtained private counsel, Albert Armonda, who represented him at the next hearing, "because of the operating click [sic] that they have in Oak Park between the prosecuting attorney and the public defender." On June 26, 1978, Armonda's motion to withdraw as counsel for defendant was granted and assistant public defender, Marijane Placek, was appointed as defendant's counsel. On December 8, 1978, Placek withdrew from the case pursuant to defendant's motion for a bar association attorney. Defendant asserted he "went through five of them" and none were "satisfactory" to him. On February 20, 1979, the trial court, Judge Anthony Bosco, presiding, denied defendant's motion for a bar association attorney and reappointed Winiecki to the case unless and until defendant obtained a private attorney.

On April 20, 1979, defendant again stated that he "went through" five public defenders; and, that there has been a "conspiracy" to put him away. Defendant requested that "Winiecki who knows the case so well take it." At a subsequent proceeding, Winiecki made a motion to withdraw, stating that there was a potential conflict. Upon defendant's request that Winiecki withdraw, the court granted the motion. Again defendant stated that he wanted a bar association attorney. On May 16, 1979, the court granted defendant's request and appointed an attorney from the Chicago Bar Association, Charles Schwartz. The court informed Schwartz that it "will be pushing for trial. It's an old case." At the next hearing, defendant stated he didn't "accept" Schwartz and accused Schwartz of "lying." The court informed defendant that he would appoint no further lawyers and that defendant would be representing himself pro se if Schwartz withdrew. On July 30, 1979, defendant made a pro se motion to appoint new counsel and to substitute judges. The court stated that defendant's motion for a substitution of judges would be entertained if it is "under the right section," advising him that if he did not know the section, he should file his motion through his lawyer. Defendant requested that his counsel be charged with perjury and fraud. No hearing was held on these charges.

On August 3, 1979, defendant filed a petition for leave to file in the United States District Court for the Northern District of Illinois a section 1983 suit (42 U.S.C. § 1983 (1970)) in forma pauperis against, inter alia, Schwartz and Bosco, charging them with corruption, conspiracy, official misconduct, obstruction of justice, perjury, defrauding the State and intentionally conspiring to violate his civil and constitutional rights. That petition was denied by the District Court on August 22, 1979. Appeals from that denial to the Court of Appeals for the Seventh Circuit and to the United States Supreme Court were unavailing. Meanwhile, on September 10, 1979, defendant asked the Cook County circuit court if he could hand a copy of his "suit" against Schwartz to the court. Judge Bosco replied that he did not want to know anything about it. Defendant repeatedly accused Schwartz of committing fraud and perjury and stated throughout the proceedings that he did not want to be represented by Schwartz. An evidentiary hearing on the motion to suppress identification then followed and the motion was denied.

I

A. Defendant contends that he was denied his right to a fair trial when he was represented at trial by an attorney he did not want, had accused of incompetency, perjury and fraud, and against whom defendant had filed a section 1983 suit, which he maintains established a per se conflict of interest which required Schwartz to withdraw, citing People v. Smith (1967), 37 Ill.2d 622, 230 N.E.2d 169, People v. Terry (1970), 46 Ill.2d 75, 262 N.E.2d 923, and People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441. These cases are inapposite primarily because none involve a defendant who, as here, was attempting to thwart the prompt administration of justice by dilatory tactics. Before Schwartz represented defendant at trial, he previously had been represented by four different public defenders, none of whom were satisfactory in defendant's eyes, and one privately retained attorney. The trial court repeatedly substituted counsel at defendant's request. Consequently trial was delayed and rescheduled. On one occasion, the court, at defendant's urging, even reappointed a public defender, Winiecki, whom defendant had previously caused to be removed on grounds that he was a liar and a fraud. Throughout the ...


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