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People v. Clark

OPINION FILED SEPTEMBER 16, 1982.

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

v.

GREGORY CLARK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Richard L. Samuels, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant, Gregory Clark, was charged by information with three counts of theft (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(a)(1)) and three counts of knowing possession of a stolen vehicle (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 4-103(a)). Following a bench trial in the circuit court of Cook County, he was convicted of three counts of knowing possession of a stolen vehicle and found not guilty of theft. He was sentenced to the Illinois Department of Corrections to serve three concurrent terms of five years each.

Defendant raises three issues on appeal: (1) whether the trial judge erred in denying defendant's request for an appointed attorney other than the public defender; (2) whether the convictions for knowing possession of a stolen vehicle should be reversed because the only testimony presented by the State to prove an essential element of the crimes charged was inadmissible hearsay; and (3) whether the trial court erred in entering three judgments of conviction and imposing separate, concurrent sentences for the three counts of knowing possession of a stolen vehicle.

We reverse the judgment of the trial court.

FACTS

The rather unusual course taken by the proceedings in this case began on November 5, 1979, when Clark appeared in court to ask for appointment of counsel other than the public defender. The trial judge denied his request for a "bar association attorney," explaining that he could not appoint counsel other than the public defender unless, for example, multiple defendants presented antagonistic defenses and one defendant was represented by the public defender. At this point Clark accepted the appointment of the public defender, pleaded not guilty to the charges of theft and knowing possession of a stolen vehicle, requested copies of all documents filed in response to discovery motions, and stated that he wished to conduct his own defense with the help of the public defender. The trial judge carefully explained the risk of appearing pro se, but Clark insisted that he wanted to defend himself with the assistance of the public defender. The proceedings were then recessed for two weeks.

At his next appearance, on November 21, 1979, Clark told the trial court that the public defender would be his attorney of record and would conduct Clark's defense with the defendant's assistance. However, by the time the trial date arrived, August 5, 1980, the public defender, Donald Jurewicz, requested a clarification of his position because Clark had continued to request appointment of outside counsel. Jurewicz asked to withdraw, whereupon the judge, after stating that he had no real grounds for appointing counsel other than the public defender, gave Clark all the admonishments necessary when a defendant desires to represent himself. Clark responded that he needed some help but didn't want Jurewicz as his attorney. The judge explained that Clark could not choose a particular appointed attorney, and Jurewicz would not be removed from the case unless his representation was totally inadequate. Clark replied that Jurewicz was a sham because "he told me we couldn't win the case." The judge, after questioning the attorney, told Clark that Jurewicz would represent him competently, whereupon Clark asked to be excused from the courtroom.

The judge then told Clark he could represent himself with Jurewicz' assistance, but Clark rejected any connection with the attorney. Further admonishments were given about the risks of Clark's appearing pro se, and Clark stated again that he wanted an attorney but not Jurewicz. When the judge repeated that he had no reason to replace Jurewicz and that trial was about to commence, Clark again asked to be released from the courtroom. The judge, agreeing to excuse him, arranged for a speaker to be set up so Clark could hear the proceedings from another room; he then informed Clark that the trial would not go on in Clark's absence unless his interests were represented.

Clark then asked for a continuance to find some witnesses and to prepare to conduct his own defense completely pro se. However, because the State's witnesses were present and ready, and the case now had been set for trial after being continued six times, the trial judge directed that the State present its case immediately, and then Clark would be allowed some time to prepare his own defense. Jurewicz informed the court that the public defender's office, unknown to Clark, had already attempted to locate Clark's witnesses but had been unsuccessful. When the judge repeated that trial was about to begin, Jurewicz, after asking for a clarification of his position, turned over his entire file to Clark, whereupon Clark left the courtroom. The judge's final decision on Clark's representation was that Jurewicz was allowed to withdraw as attorney of record but would be present in the courtroom in an advisory capacity.

After the speaker had been installed in a nearby conference room, the judge began the proceedings by noting for the record that Jurewicz was sitting in the jury box rather than at counsel table, and by instructing the defense attorney to go back to Clark at the conclusion of each witness' direct testimony to inquire if he had any questions for the witness. Jurewicz was to make appropriate objections during the course of the testimony and then ask Clark if he wished to cross-examine the witness or have testimony stricken. This procedure was then followed throughout the trial.

The events leading up to Clark's arrest were established by Daniel McDevitt, an investigator for the Illinois Department of Law Enforcement. He testified that on August 25, 1979 at about 6:30 p.m., he received a telephone call at home from Gregory Clark, during which Clark offered to sell him two 1979 Mercury Cougar automobiles for $500 apiece. McDevitt responded that he was interested in purchasing the vehicles but could not do so until the following Monday, August 27, 1979. Later that evening Clark again called McDevitt to ask if McDevitt could purchase one vehicle that evening because the person holding the cars needed money quickly. McDevitt repeated that he would not take the cars until Monday.

At 9:30 a.m. on Monday, August 27, McDevitt received a third call from Clark, this time at his office. Clark told McDevitt that an additional car was now available for sale, a 1979 Mercury Zephyr, at a price of $400 to $500. McDevitt then arranged to meet Clark at 2:30 p.m. that day at a Burger King Restaurant in Calumet Park.

Shortly after 2 p.m. on August 27, 1979, McDevitt, accompanied by another investigator, Dale Sayset, drove into the restaurant parking lot. Clark came out of the restaurant, and after pointing out the three cars, he led the investigators to meet three other men seated in one of the cars. McDevitt then asked if they all could move to another location, so Clark instructed each of his three companions to drive one of the cars and follow him and the two agents in McDevitt's car.

The four cars then were driven to the parking lot of the Blue Island Plastics Company, whereupon McDevitt directed the other three drivers to park their cars at the far end of the lot. He then showed his badge to Clark and placed him under arrest. Clark's three companions were also arrested. McDevitt obtained the vehicle registration numbers from each of the three Mercury vehicles, entered the numbers into the Secretary of State's computer file, and in response to a teletype reply, called the office of Budget Rent-A-Car company. On the following day, August 28, 1979, Porter Hopps, a security manager for Budget, met McDevitt, and the two men went to ...


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