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People v. Bryant

OPINION FILED MARCH 4, 1983.

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

v.

DENNIS BRYANT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 15, 1983.

Following a jury trial, defendant was convicted of attempt escape (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 31-6) and sentenced to a term of 10 years' imprisonment in the Illinois Department of Corrections.

On appeal he argues that: (1) effective waiver of counsel was not established pursuant to Supreme Court Rule 401(a) (87 Ill.2d R. 401(a)); (2) the trial court abused its discretion by refusing to grant him a continuance to procure a witness for his defense; (3) the trial court erred in limiting his cross-examination thereby depriving him of a fair trial; (4) the trial court abused its discretion in sentencing him to the maximum term under the extended term statute; (5) evidence concerning the nature of his underlying convictions was improperly admitted; (6) the trial court erred in refusing to answer a question submitted to it by the jury; (7) the prosecutor's remarks during closing argument constituted reversible error.

Material to our disposition are the following facts. On February 8, 1980, defendant was charged with escape from the Cook County jail. At a preliminary hearing, probable cause was found for attempt escape and the information was subsequently amended.

On May 7, 1980, defendant requested appointment of a bar association attorney citing "lack of communication" between himself and his appointed counsel. The court denied this motion but appointed another assistant public defender, Phillip Olson, who subsequently informed the court that defendant wished to represent himself. Defendant was granted leave of court to represent himself with the public defender as an adviser.

At the commencement of trial on May 19, 1980, Olson asked the court to clarify his status in the case, and the trial judge responded that the defendant would represent himself with "you at his elbow." The court admonished defendant pursuant to Supreme Court Rule 401(a) and told him, inter alia, the range of sentences, including an extended-term sentence, and stated that the sentence could run consecutively to the sentence defendant was presently serving. The court read the information to defendant and informed him that he could call witnesses, cross-examine witnesses, take the stand on his own behalf or not, that defendant had a right to a lawyer and that the public defender could conduct his defense. The court then denied the public defender's motion for leave to withdraw.

The venire was brought in and the trial judge read the charge against defendant, including his prior armed robbery conviction. Following jury selection, Olson asked for a mistrial on the basis that the jury should not have been informed about the nature of the prior conviction and pending escape charge, and that defendant had not seen photographs of the jail which the State intended to put into evidence. In denying the motion, the court stated that defendant's lawyers had seen those photos earlier that day and that the conviction was part of the charge.

Trial commenced on May 19, 1980. The following evidence was adduced at trial.

On December 2, 1979, defendant was incarcerated in Cook County jail as the result of an armed robbery conviction and a pending escape charge and was confined to a fourth-floor cell immediately below the roof.

Officer Kenneth Washington testified for the State that he was a guard assigned to the tier where defendant's cell was located and that three prisoners were discovered to be missing following his head count.

A search was initiated, and when additional officers arrived, he went to the roof and noticed bed sheets tied to one of the windows leading from a higher roof to a lower roof. Defendant conducted a cross-examination of this witness, wherein the State's objections to testimony relating to gangs in the prison were repeatedly sustained.

Officer Nadine Kmiec, an employee of the Cook County Department of Corrections' record office, identified an arrest history card showing that defendant was in jail on December 2, 1979, on an armed robbery conviction and a pending escape charge. This exhibit was admitted into evidence as a business record over defendant's objection.

Officer Milton Dixon, a guard at the Cook County jail, was called as the State's witness and identified and explained the photographs of the jail, which were admitted into evidence and published to the jury, and further stated that during the course of the search he found defendant and a second inmate, Charles Anderson, lying on top of the pipes in the prison transformer building less than 100 yards from the outer fence of the jail.

The State rested its case, and defendant's motion for a directed verdict was denied.

Defendant asked to call inmate Anderson as a witness on his behalf although he had not previously been subpoenaed. In denying defendant's request, the court noted that the case had been held on trial call for two weeks prior to commencement of trial. The defense rested. During the conference on jury instructions, the ...


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