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People v. Hite

OPINION FILED MAY 12, 1983.

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

v.

ODELL HITE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. John J. Hoban, JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of St. Clair County, the defendant was convicted of armed robbery and was sentenced to 10 years' imprisonment. He appeals from his conviction and presents a single assignment of error. He contends that the record does not show that he effectively waived counsel prior to his pro se trial in which he was assisted by the public defender.

On January 20, 1981, the defendant was charged with having committed an armed robbery the previous day, and, at that time, public defender James Donovan was appointed to represent him. Donovan appeared on the defendant's behalf at his January 30, 1981, preliminary hearing. When the defendant was arraigned on March 20, 1981, however, he informed the court that he was represented by attorney Clyde Kuehn. On April 24, 1981, the court was apprised that Kuehn had withdrawn from the case. The public defender was again appointed.

The law firm of Martin, Bahn and Cervantes filed an entry of appearance in this case on April 29, 1981. This law firm filed various suppression and discovery motions in the defendant's cause and represented him at an evidentiary hearing on one of those suppression motions. On July 15, attorney Mark Bahn filed a motion to withdraw as defense counsel, along with an affidavit explaining that this action was taken at the request of the defendant. The court granted this motion, and, for the third time, appointed public defender Donovan to represent the defendant. At that time, the court explained to the defendant that his trial was scheduled for July 27, 1981. The following exchange then took place:

"THE DEFENDANT: Your Honor, excuse me. Do I have to go with the Public Defender?

THE COURT: You sure do. You fooled around too much.

THE DEFENDANT: It's not my fault, Your Honor. It's the fault of the lawyer and I'm getting another attorney. I don't want to go with the Public Defender.

THE COURT: If he can be ready by the 27th, he can help Mr. Donovan. Otherwise he's the Public Defender."

On July 27, the defendant appeared in court and requested that his case be continued. The court allowed him a continuance to August 24, but admonished him that there would be no further continuances "because of lawyer problems."

The defendant's case was called for trial on August 24, 1981. The court heard the defendant's testimony in support of his request for a change of venue, and denied the motion. Action was taken on other motions, and then a recess was called. After that recess, the following discussion occurred between the court and the defendant:

"THE COURT: I understand that you want to try the case yourself.

THE DEFENDANT: My people say [sic] that they would get an attorney for me.

THE COURT: They told me that six weeks ago, or two months ago, I believe, but they didn't do it. And so we are going to have to go today. So you have a right to try your case yourself, but he has to sit there as an advisor. If you want to make use of his services, that's fine. If you want to ignore them, you're fine. But you will be held to the same laws of evidence that a lawyer would be held to.

THE DEFENDANT: Yes, sir.

THE COURT: And in other words, it won't be just a big argument in the court. I will expect you to conduct yourself just like a lawyer would, ask the same questions, because that's why we have lawyers, to eliminate a lot of the confusion and things of that sort. But you have a right to do it ...


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