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People v. Allen





Appeal from the Circuit Court of Cook County, the Hon. Frank B. Machala, Judge, presiding.


Rehearing denied March 30, 1984.

Defendant, Kenneth Allen, was charged by information in the circuit court of Cook County with the murder of two Chicago police officers. Following a fitness hearing, at which a jury found him competent to stand trial, defendant, pro se, pleaded guilty. Pursuant to section 9-1(d) of the Criminal Code of 1961, the State requested a sentencing hearing to consider whether the death penalty should be imposed. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) At this hearing, defendant again proceeded pro se and also waived his right to a jury determination of the issue. The trial court found that the necessary aggravating factors existed and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. Defendant was sentenced to death. (See Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c).) A direct appeal to this court followed. Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603.

The record reveals that on December 13, 1978, Bianca Smith summoned the police to a residence where she and defendant lived. Smith told police that she needed assistance and that defendant was armed. When police arrived, defendant displayed a rifle and demanded that they remove themselves from his property. Lieutenant Robert Hanley and Commander James B. Delaney attempted to calm the defendant, and after approximately 19 hours he surrendered. Defendant was then arrested and charged with aggravated assault and misdemeanor firearm violations.

The next day, while still in police custody, defendant's residence was searched pursuant to a warrant. The police confiscated seven firearms, along with over 1,000 rounds of ammunition. When defendant returned home, he discovered that the weapons were taken by the police and apparently became determined to seek revenge on the individuals responsible for the issuance and execution of the search warrant.

On March 3, 1979, defendant visited a locksmith and glazier shop. After asking some unusual questions of the shop's proprietor, defendant discovered that a .45-caliber bullet would not penetrate bullet proof glass, but that police cars were not equipped with such glass. Later that day, defendant observed police officers William Bosak and Roger Van Schaik as they effected a routine traffic stop. He parked his car next to the unoccupied police car, opened fire, and fatally wounded Bosak. Defendant continued his attack upon Van Schaik, who returned the fire. When Van Schaik ran out of ammunition, defendant went to his car and retrieved a rifle. He fired at Van Schaik three times before the rifle malfunctioned. When the officer fell wounded, defendant took the service revolver from the body of Bosak and shot Van Schaik twice in the head at point-blank range, killing him instantly.

As other officers arrived on the scene, defendant returned to his car and sped away. After an extensive police chase, defendant was captured and arrested. A search of defendant's car revealed three firearms and a notebook. The notebook contained the names, addresses and vehicle license plate numbers of the judge, the investigator, and police officers who were involved in the December 14, 1978, search warrant.

Private counsel, Thomas Holum, was initially retained to represent defendant. However, due to defendant's indigency, he withdrew and public defenders Stuart Nudelman and Dale Coventry were appointed. Their motion, that defendant be taken to Cermak Hospital for observation and a behavorial clinic examination, was denied.

Private counsel JoAnne Wolfson and James Cutrone were later retained to represent defendant and the public defenders were allowed to withdraw. At arraignment, Wolfson and Cutrone appeared for defendant and entered a plea of not guilty. A week later, they moved that defendant be examined neurologically and psychologically, including a brain scan and an electroencephalogram (EEG). The court granted the motion; however, defendant refused to undergo the testing. Wolfson and Cutrone moved to withdraw, stating that they deemed the tests to be an integral part of the defense. The court granted the withdrawal and allowed defendant time to seek counsel. Nudelman was appointed during the interim.

On August 2, 1979, public defender Richard Kling appeared for defendant and informed the court that Nudelman was ill. At that time, defendant requested an interview with a lawyer from both the Chicago and Cook County bar associations. The court allowed the request and advised defendant that if he did not want the first attorney interviewed he could interview a second, but that he should not expect that he would be permitted to go through the entire Illinois bar. The court appointed bar association attorney Cornelius Toole after finding he was acceptable to defendant.

On September 21, 1979, the State announced that it was ready for trial. Toole reported that defendant wished to be tried first on the misdemeanor firearm charges. The State then dismissed those charges, and the murder case was continued on defendant's motion. On October 31, 1979, defendant moved to dismiss Toole, stating that he was angry because Toole "allowed" the misdemeanor charges to be dismissed. Without Toole's foreknowledge, defendant then moved to withdraw his plea of not guilty and enter a plea of guilty. The court refused defendant's requests and continued the case.

In November 1979, Toole informed the court that he had serious doubt regarding defendant's fitness to stand trial. Toole's motion for a behavorial clinic examination of defendant was granted. On November 21, the State reported that Dr. Gerson Kaplan, a psychiatrist, had examined defendant on November 20 and found him unfit to stand trial. The court then granted Toole's request for a hearing to determine defendant's fitness to stand trial. Defendant repeatedly objected to any proceedings regarding his fitness and refused to speak with Toole. Defendant insisted that the court accept his plea of guilty. The court, however, informed defendant that the plea would not be accepted until his fitness was determined. The court suggested to Toole that he should have one of his associates conduct the fitness hearing since he might be called to testify.

On November 27, 1979, William O'Neal, an associate of Toole, appeared for defendant at the fitness hearing. Defendant objected to O'Neal's representation because of his association with Toole. Defendant's motions to proceed either pro se or in absentia were denied. Defendant then moved that the public defender be appointed. The court allowed O'Neal to withdraw and appointed public defenders Mariam Burke and Edward Ptacek. After a jury was selected, the fitness hearing commenced.

The State called Dr. Werner Tuteur, a psychiatrist, who testified that he examined defendant at the Cook County jail on November 22, 1979. Dr. Tuteur stated that defendant knew the charges pending against him and "discovered no mental condition which would prevent the defendant from assisting in his defense." Based upon the examination, it was Dr. Tuteur's opinion that defendant was fit for trial.

Correctional Officer Morris testified that on November 20, 1979, defendant locked himself in his cell and had to be forcibly taken to Dr. Kaplan's office for a psychological examination. Following this testimony, the State rested.

Dr. Kaplan was called as a court's witness. He testified that he examined defendant and determined that defendant was unfit to stand trial because he was unable to assist in his own defense due to a "paranoid state." Dr. Kaplan acknowledged that the examination was not conducted under optimum conditions because defendant had to be forcibly taken to his office.

A defense motion for a directed finding of unfitness was denied. The defense then presented public defenders Kling and Nudelman, who stated that, based upon their interaction with defendant, it was their opinion that defendant was unable to cooperate with counsel in his own defense. Over defense counsel objection, defendant testified on his own behalf. He urged the jury to consider his conduct during the proceedings and to consider the "very credible" testimony of Dr. Tuteur. Defendant also stated that he was "fit to stand trial" and was "innocent of the charge of insanity." Closing arguments were made and both sides rested. The jury found that defendant was fit to stand trial. Attorneys Burke and Ptacek were allowed to withdraw and Toole resumed representation of defendant.

On December 3, 1979, defendant moved that Toole be discharged and that he be permitted to proceed pro se. The court advised defendant that self-representation in a murder case would be unwise. Defendant agreed and requested appointment of counsel other than Toole. The court informed defendant that another attorney would not be appointed. Thereafter, defendant persisted in his request to proceed pro se. The court, with Toole present, admonished defendant in accordance with Supreme Court Rule 401 (73 Ill.2d R. 401) and, after it determined that the waiver of counsel was knowingly, intelligently, and voluntarily made, allowed dismissal of Toole. The court, however, requested that Toole stand by and advise defendant. Defendant then informed the court that he wished to plead guilty to both charges of murder. The court fully complied with Supreme Court Rule 402 (73 Ill.2d R. 402) and accepted the plea after determining that there was a factual basis for the plea and the plea was voluntary.

The State requested that a sentencing hearing be held to consider whether the death penalty should be imposed. Defendant proceeded pro se and waived his right to a jury at that hearing. Defendant acknowledged that he shot two police officers with the intent to kill them. He indicated that he shot the officers because he thought they were involved with the "police raid" at his house on December 13, 1978. He also stated that he was "in total agreement with the State in reference to imposing the death sentence." The court found that the State proved two ...

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