Appeal from the Circuit Court of Fayette County; the Hon.
Daniel Dailey, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Fayette County, defendant, Robert Vaughn, was convicted of aggravated battery. Judgment was entered on the verdict and defendant was sentenced to a two-year term of probation contingent upon his serving the first 60 days in jail and making restitution to the victim. Defendant appeals his conviction and raises the following issues: whether the trial court denied him his constitutional right to counsel by permitting defendant's attorney to withdraw on the day of the trial and requiring defendant to proceed pro se without securing a knowing and intelligent waiver of counsel and whether the trial court erred by refusing to instruct the jury on the defense of justifiable use of force.
On September 11, 1978, an information was filed which charged that defendant committed the offense of aggravated battery by striking Eugene Ruot in the face with his fist while Ruot was on a public way. Dennis Huber was appointed to represent defendant, and at the preliminary hearing on September 25, 1978, the court found probable cause to believe that defendant committed the offense. Defendant entered a plea of not guilty.
On February 16, 1979, Frank Giampoli was substituted as counsel for defendant because Huber had been appointed to the bench. On April 9, 1979, Giampoli moved to withdraw from the case because Fayette County had terminated its participation in the Fourth Judicial Public Defender Project. The court granted the motion and appointed John Reznick to represent defendant. On May 21, 1979, Reznick was permitted to withdraw as counsel because he was a potential witness in defendant's case. Larry LeFevre became the next appointed counsel for defendant.
On June 13, 1979, defendant filed a pro se "motion for substitution of counsel" alleging that LeFevre was biased against him and did not want to represent him. At the June 25, 1979, hearing, defendant indicated that he wished to retain private counsel but later, on July 11, defendant requested the court to appoint an attorney for him. David L. Miller was then appointed to represent defendant.
On January 22, 1980, the day before trial, Miller filed a motion for leave to withdraw as counsel and a motion to continue the case. In his motion for leave to withdraw as counsel, Miller alleged that defendant had made "extensive demands for subpoenaing of witnesses not material to his defense," had refused to follow the suggestions and advice of counsel and had displayed a "lack of faith in the professional advice and experience of counsel."
A hearing was held on the motions on January 23, 1980, at which Miller reiterated the allegations of his motion to withdraw. The court granted the motion to withdraw, but asked Miller to serve as "standby counsel," ordering him to remain as legal advisor to assist defendant upon request. The court denied the motion to continue and the case proceeded to trial.
The State's first witness was Carol Dugan, formerly chief deputy sheriff of Fayette County from 1970 to 1978. Deputy Dugan testified that on September 8, 1978, he answered a call concerning trouble at defendant's residence. The woman who answered the door denied that there had been any trouble and Deputy Dugan and Sheriff Dan Michel then proceeded to the next house where they found the victim Ruot. Dugan testified that Ruot's shirt was covered with blood and he had "a pretty bad looking eye." The officers then returned to defendant's residence and placed defendant under arrest. On cross-examination, Dugan stated that he did not notice any damage to defendant's bean field.
Eugene Ruot testified that he had been the road commissioner of Bowling Green Township for the past nine years and that his responsibilities included maintenance of all township roads and drainage ditches alongside them. Ruot testified that on September 8, 1978, he was operating a road grader on the township road in front of defendant's residence. Ruot further testified that prior to being struck, he heard defendant say "you goddam son of a bitch, stay out of my bean field, I'm going to kill you." He stated that defendant climbed aboard the vehicle and struck him five or six times in the face and head.
Complainant testified that defendant knocked his head against the grader, rendering him unconscious, but he was able to turn off the grader before it went off the road into the opposite ditch. His employees found him and telephoned the sheriff. He was hospitalized for two days for treatment of his injuries which he stated consisted of a fractured skull, jaw broken in three places and four or five stitches in his head.
Defendant testified in his own behalf that the "grader was way off the road" and "neither tire was on the road." He stated that after the grader passed the culvert it went off the road again and "started covering up the beans." Defendant shouted at complainant to stay out of the bean field and when he did not comply, he lost his temper and jumped onto the grader. Defendant testified that he then "hit him a couple of times because I was aiming to put him off our ground, from destroying our crops." He further testified that he told complainant, "You stay off or I'll kill you" and "the next time you get on my property and bother us again I'll kill you."
On cross-examination, defendant stated that he planted the beans about nine or 10 feet from the center line of the road. Defendant admitted that there were no permanent markers identifying the exact width of the road. He also admitted that he climbed up on the cab of the grader and cursed and struck complainant about the head and face.
The jury found defendant guilty of aggravated battery, and the court sentenced him to a two-year term of probation. Defendant appealed his conviction, alleging that the trial court erred in failing to enter judgment on the verdict. The court agreed with defendant's contentions and without addressing the issues presented in this appeal, remanded the case. Judgment was entered on the verdict on August 6, 1981, and defendant was again sentenced to two years' probation. From that judgment defendant now appeals.
The first contention presented on appeal is that defendant was denied effective assistance of counsel when the trial court permitted defendant's attorney to withdraw on the day of the trial and remain as his legal advisor. Defendant maintains that although the court might have properly allowed counsel's motion to withdraw, it could not do so without first admonishing defendant in accordance with Supreme Court Rule 401(a) (87 Ill.2d R. 401(a)). Defendant contends that the trial court's ...