Appeal from the Circuit Court of Cook County; the Hon. Gerald
L. Sbarboro, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant Gitson Cates was convicted of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-3) and was sentenced to three year's imprisonment. On appeal, he contends that: (1) the trial court's denial of his motion for a continuance deprived him of his constitutional right to be defended by counsel of his own choice; and (2) the evidence was insufficient to establish recklessness.
The record shows that defendant was arraigned on August 15, 1978. On that date, attorney Howard T. Savage filed his appearance on behalf of defendant. On August 25, 1978, the case was continued by agreement to September 21, 1978, and then, on defendant's motion to October 16, 1978. Then, from that date until August 14, 1980, the case was continued 18 times, each time by agreement. Thereafter, continuances were entered until September 15, 1980, on defendant's motion, and until September 22, 1980, on order of the trial court. On the latter date, a hearing on pretrial motions commenced, lasting until September 24, 1980. The case was then continued to September 25, 1980, for jury selection, but due to an insufficient number of available veniremen on that date, the case was held on call and continued until September 29, 1980.
On that date the People answered ready for trial. James Bell, an attorney who had assisted Mr. Savage and had argued a pretrial motion to suppress, informed the trial court that Mr. Savage could not be present that day. Mr. Bell stated that he had been informed by Mr. Savage's wife that Mr. Savage was to undergo oral surgery that day at 2 p.m. On this basis the trial court granted defendant a continuance until the following afternoon at 2 p.m., requesting that Mr. Bell present an affidavit relating to the continuance on the following morning.
On September 30, 1980, Mr. Bell informed the trial court that Mr. Savage was still unavailable due to illness and that defendant did not want to go to trial without the assistance of Mr. Savage. In response to the trial court's questioning, Mr. Bell stated that he had been involved in the case for a month and a half, that he shared office space with Mr. Savage, and that they work together on a case-by-case basis in a loosely defined association as independent practitioners. Mr. Bell stated that he had been admitted to the Illinois Bar since 1978, and the Tennessee Bar since 1976, having practiced in Tennessee for three and a half to four years. In his opinion Mr. Savage would be able to try the case "within a week or so." When asked by the court if he had brought the requested affidavit, Mr. Bell responded that he had not, since he "simply forgot about it."
The trial court denied the defendant's motion for a continuance stating as grounds the following:
"THE COURT: Now, for the record [since August 15, 1978] * * * there's been a series of continuances, twenty-one up until the point in time where I had put it on call for priority and the 22nd time it was put on for 9-22, top priority. [Mr. Bell] was advised of that, Mr. Savage was advised of that. We cleaned the calendar for the entire week so that this case could be heard. We proceeded last week to hear the motion to suppress, * * * [t]hen * * * we ran into a problem on Thursday with a jury. Friday Mr. Savage indicated he had to go to a Pattern Jury Instruction Conference. With deference we just gave him Thursday and Friday both off putting the case over until Monday.
Yesterday [Mr. Bell] indicated again clearing this * * * second entire week for this case. And I might note during the motion to suppress [Mr. Bell] * * * ably represented [defendant] * * * and [defendant] made no objections to that whatsoever and my major concern in this matter is competency of counsel.
I have nothing to indicate that there is any less competency by this attorney than any other attorney that would try this case. We have cleared the deck again this week. Yesterday [Mr. Bell] informed me of Mr. Savage's * * * oral surgery * * *. Therefore, we put the case over one more day, sent back the jury * * * in due deference to Mr. Savage so that he could be here * * * with Mr. Bell.
* * * Mr. Bell is a competent attorney licensed to practice in this case with a background of experience. I see no reason to postpone it any further and I'd like to begin the selection of the jury at 2:30."
After the court's denial of the continuance, Mr. Bell stated that it was his best judgment to proceed with a bench trial. The court then granted a recess to allow Mr. Bell to discuss the matter with defendant and also with Mr. Savage. Following the recess, Mr. Bell announced that he and defendant had spoken by telephone to Mr. Savage and that defendant would waive his right to a jury trial. Then the following colloquy occurred between the trial court and defendant:
"THE COURT: What are your thoughts in relationship to this? Is this satisfactory to you that we go ahead with the bench and Mr. Bell represent you in this case?
THE COURT: Or is this a feeling on your part yet because you paid your compensation to Mr. Savage that Mr. Savage should represent you ...