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05/26/87 the People of the State of v. Ellis Partee

May 26, 1987




Before the entire jury had been selected, defendant exhausted the 10 peremptory challenges allotted to him. Defendant requested five additional challenges but was denied such request. Defendant later complained that eight of the veniremen who had been excused, apparently by the State, were black. Defendant also objected to the excusing of one venireman, apparently also black, at the juror's request that he had to attend to a sick relative and could not give his full attention to the trial.


511 N.E.2d 1165, 157 Ill. App. 3d 231, 110 Ill. Dec. 845 1987.IL.673

Appeal from the Circuit Court of Cook County; the Hon. Rosaland M. Crandell, Judge, presiding.


JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and BILANDIC, J., concur.


Defendant was convicted of attempted armed robbery and three counts of aggravated battery after a jury trial in which defendant appeared pro se. He was sentenced to extended terms of 30 years for attempted armed robbery and 10 years for each count of aggravated battery to run consecutively. Defendant now raises numerous issues on appeal.

Defendant was arrested on February 20, 1983, and charged with attempted murder, attempted armed robbery, and three counts of aggravated battery. On July 12, 1983, defendant and his counsel appeared before Judge Frank Orlando. Defendant's counsel requested to withdraw as counsel and defendant requested an automatic substitution of Judge. Both motions were granted and the cause was assigned to Judge Lester Bonaguro. Defendant was thereafter represented by a public defender and was assigned to Judge Rosaland M. Crandell on October 7, 1983, due to Judge Bonaguro's ensuing transfer. On October 18, 1983, Judge Francis Glowacki heard a second motion by defendant for substitution of Judge for cause alleging prejudice to defendant by Judge Crandell. The motion was stricken by the court, which found that it inadequately set forth a basis for substitution of Judge. On October 18, 1983, defendant again appeared before Judge Crandell to request an extension of time to retain private counsel to represent him. The court granted defendant a one-week extension. On October 25, 1983, defendant appeared again before Judge Crandell and asked to act as his own attorney. Judge Crandell granted defendant's request but asked the two public defenders present to remain in an advisory capacity. On November 1, 1983, defendant requested the court to appoint Public Defender Allan Sincox to act as his attorney. Judge Crandell granted the request and set November 16 for the hearing on motions.

On November 28, 1983, defense counsel presented a motion for substitution of Judge as a matter of right, rather than for cause as argued previously. Defense counsel argued that defendant was entitled to two substitutions of Judge under section 114 -- 5 of the Illinois Code of Criminal Procedure of 1963 because he was charged with a Class X felony. Counsel maintained that such substitution of Judge need not be filed at the same time. The State asserted in reply that defendant's case had been on the call of three prior Judges and that defendant had failed to file a motion for substitution of Judge within the required 10 days. At the close of all arguments, Judge Crandell held that in an effort to avoid any problems which might void all subsequent proceedings, and with the understanding that this would be the final substitution allowed, it would assign the defendant's case, based upon the presiding Judge's authority, to Judge Cohen. However, on December 8, 1983, upon the State's motion for reconsideration, Judge Crandell reversed her previous decision to reassign the case. Judge Crandell subsequently presided at defendant's trial.

On April 23, 1984, defendant appeared before the court and asked that public defenders, Allan Sincox and Dale Coventry, be placed in an advisory role and that he be allowed to represent himself. Defendant was advised of his rights under Supreme Court Rule 401 (107 Ill. 2d R. 401) concerning the waiver of counsel and was directed to execute a written waiver. Moments later, defendant moved to act as co-counsel to the public defenders, who would continue to represent him. On April 30, the court reviewed defendant's pro se request and appointed Public Defender Gino Peronti to act as standby counsel.

On May 2, 1984, defendant again moved to substitute Judge Crandell for cause. Judge Crandell reassigned the cause to Judge Kavitt, who presided at a hearing on defendant's motion. During this hearing, defendant also advised the court that he wished to be represented by Public Defenders Sincox and Coventry. Counsel argued defendant's motion for substitution of Judge, citing various incidents which defendant maintained prejudiced Judge Crandell against his case. Judge Kavitt denied defendant's demand that Judge Crandell testify or submit an affidavit to explain her acts, finding that the applicable statute required neither. Judge Kavitt then denied defendant's motion, finding that defendant made no showing that Judge Crandell was prejudiced and could not give defendant a fair trial. After this hearing, defendant returned to Judge Crandell's courtroom and advised the Judge that he wished to return to pro se status.

Thereafter, at defendant's request, the court granted him permission to make daily telephone calls and to visit with material witnesses and allowed defendant to have access to the law library. On May 11, 1984, the trial court denied defendant's request to appoint Randolph Jonakait, an attorney and author of a law review article on serology, as an expert for the defense. Emmett Harmon, a biochemist and serologist, was subsequently appointed by the court. The court also denied the appointment of Kathy Bennett, a jury expert, to assist defendant during voir dire and denied the appointment of a private investigator to assist defendant. The court recommended the appointment of a staff psychiatrist to assist defendant in his alleged insanity defense, but defendant rejected this offer.

On May 11, 1984, after defendant reaffirmed his wish to represent himself, the trial court denied his request to appoint Coventry and Sincox as standby counsel. The court then made certain findings as to defendant. It found that defendant was under no mental disability and that he knowingly and intelligently elected to proceed in his own defense. The court also found that defendant understood the nature of the charges and the seriousness of the possible penalties for those charges.

On May 14, 1984, the court received a letter from the director of the Cook County jail, explaining that defendant's requests for unlimited telephone calls and visits from material witnesses could not be complied with, explaining that such allowances had never been made for other inmates and would cause great disruption.

When voir dire began on May 30, 1984, defendant appeared in court without shoes, claiming that he was rushed by jail officers to get ready. The court requested a deputy sheriff to get shoes for defendant. Thereafter defendant again asked the court to appoint standby counsel. The court denied defendant's request, commenting that it would either allow defendant to appear pro se or to be represented by a public defender, but would not allow a "hybrid," as such method was unsuccessful in the past. The court also remarked that it had repeatedly explained this matter to defendant and defendant had elected to proceed pro se.

Under voir dire, two prospective jurors indicated that they had reservations about the fact that defendant had access to personal information regarding themselves and their family, particularly their addresses, through their jury cards. When questioned by the court whether their concerns would affect their ability to be fair and impartial, both responded that it would not. Over defendant's objection, their addresses were deleted from their jury cards.

Defendant's trial commenced on June 1, 1984. Defendant appeared in a jogging suit and claimed that he was compelled to do so by a prison official who refused to allow him to bring a change of clothing. Defendant maintained that it was his practice to wear a jogging suit to the court building and to then change into civilian clothes. The court noted that defendant had not had this problem on his 60 prior court visits and admonished him to thereafter dress appropriately.

The victim, Gladys Peterson, testified that on February 20, 1983, at approximately 12:15 p.m., she arrived at Woodfield Shopping Center in Schaumburg, Illinois, to pick up her mother. As she searched for a parking space, she observed a man, identified as defendant, standing near a parked car. She parked nearby and began to exit her car when she looked up to see defendant standing outside the car, preventing her from opening or closing the door. Defendant told her, "Stay in the car. This is a robbery." Peterson pushed defendant and knocked off his sunglasses, then began to scuffle with him. She sounded her horn and the struggle continued. Defendant ordered the victim to lie down and punched her in the throat. Peterson told defendant that she had no money, to which defendant responded, "All right, I am going."

When defendant left, the victim again sounded her horn. She saw a man standing nearby, identified later as Edwin Florian, and asked him for help. She then realized that she was covered with blood. Peterson was transported by paramedics to the hospital. Peterson suffered permanent scarring along her jawline and lower neck. She stated that she did not have an opportunity to view defendant, but was able to recall his voice. She stated that she recognized his voice again when defendant called her at home shortly after the pretrial hearing and identified himself as her assailant. Defendant reportedly apologized for injuring her and explained that "some things were happening in his life at the time." Peterson found a turn signal indicator stuffed down in the driver's seat approximately 10 days after the incident.

On cross-examination, Peterson stated that she did not see any weapon and that defendant never told her that he intended to kill her during the incident.

Edwin Florian testified that he was returning to his car at Woodfield Mall with his wife on the afternoon of February 20, when he was alerted by screams from Peterson's car, parked next to his own. Florian saw a man beating a woman. When Florian approached within five feet of the car, the man, identified as defendant, looked up and saw Florian and fled through the lot. Florian saw defendant enter his car, a tan-colored Toyota, and got the license plate number as he drove away. Florian returned to assist the victim and saw that her face was bloodied. Moments later, Florian saw defendant return to the scene in his car. Florian again viewed defendant from a distance of 8 to 10 feet. When the police arrived, he gave them a description of defendant and defendant's car. That evening Florian identified defendant in a police lineup.

Barrington police officer Mark Kaspar testified that he received a radio call of an attempted armed robbery at Woodfield Mall. The suspect was identified as a black male in his twenties, wearing a tan sweater and sunglasses, driving a tan Datsun with license plate number YQA 84. Officer Kaspar sighted defendant's car approximately one-half hour later and pursued and apprehended defendant. No weapon was found on defendant during a routine search. Officer Kaspar could not remember whether defendant had any scratches on his face at the time of his arrest.

Schaumburg police officer Joseph Henry testified that on February 20, 1983, he was sent to Barrington to retrieve defendant from Officer Kaspar's car and to transport defendant back to Schaumburg. A substance that appeared to be blood was on defendant's pants, shirt, and shoes. Defendant's face was covered with scratches. Henry stated on cross-examination that he found no weapons in defendant's possession.

Michael Smith, a Schaumburg police department evidence technician, testified that he inventoried Peterson's car on the afternoon of February 20, 1983. Officer Smith observed an excessive amount of blood on the front seat of Peterson's car and on a pair of sunglasses found therein. Officer Smith also identified several photographs taken of defendant upon his arrest, which showed that five to seven large scratches were present on defendant's face. Officer Smith further identified several articles of clothing worn by defendant at the time of his arrest which were covered with blood.

Schaumburg police sergeant Thomas Ostermann testified that he was present at the police lineup on February 20. Ostermann stated that defendant refused to cooperate and placed his head down on the table in front of him. The six other participants in the lineup were instructed to do likewise to maintain uniformity and to avoid calling undue attention to defendant. Defendant's head was raised with assistance from a police officer and he was identified by Edwin Florian.

Dr. James Pawlikowski, a specialist in peripheral vascular surgery, testified that he examined the victim when she was brought into the emergency room on February 20. She suffered lacerations to her head and neck, up to two inches in length. He also observed a puncture wound at the base of Peterson's left ear, 1 1/2 inches in depth, and a laceration inside the ear canal. Dr. Pawlikowski stated that the lacerations looked like surgical incisions and would have been caused by a sharp object. He opined that a fingernail or an instrument such as the broken turn signal indicator could not have caused any of the victim's injuries, with the exception of her canal wound.

Dr. Mohammad Tahir, an expert in forensic serology with the Illinois Department of Law Enforcement, testified that he prepared an electrophoretic analysis of defendant's blood for genetic markers. Dr. Tahir explained that these markers are different with each person and can be detected in either liquid or dried blood. Dr. Tahir examined a sample of defendant's blood, as well as samples taken from defendant's bloodstained clothing, and found that the bloodstains could not have originated from defendant. Dr. Tahir further opined that such bloodstains could have originated with the victim. Dr. Tahir's findings were corroborated by Joseph Day, also a forensic serologist. Day examined the bloodstains found on defendant's clothing as well as samples of Peterson's blood approximately six weeks after the incident. Day similarly concluded that these bloodstains could not have originated from the defendant. Day acknowledged that one fact affecting analysis of bloodstains was the type of fabric into which the stain was absorbed.

On June 6, 1984, midway through trial, defendant requested that the trial court enforce the service of three subpoenas defendant allegedly submitted to the court clerk. The court found that the persons to be served were outside Cook County and hence not within the sheriff's jurisdiction of service and denied defendant's motion. The court also noted that defendant had established no connection between the persons to be served and the instant case.

Defendant presented two witnesses on his behalf. Emmett Harmon, an analytical chemist trained in serology, testified that he had not tested any of the blood samples in the present case. Harmon stated that genetic marker tests performed on bloodstains stored under usual conditions for two months would produce doubtful results. He was asked whether the preservation of a bloodstain was affected by the type of fabric in which it was absorbed. Harmon's affirmative answer was objected to by the prosecutor and such objection was sustained.

Dr. James Hicks, a pathologist, stated that he examined medical reports of treatment administered to Peterson and also examined the victim in January 1984. Dr. Hicks opined that the victim's injuries were superficial, although he admitted that they required surgery and resulted in scarring. Dr. Hicks found that defendant probably did not have a knife in his hand at the time of the incident because Peterson's wound would have thus been deeper and more severe. Hicks was asked whether he thought the victim had been slashed with a cutting instrument, but the prosecutor's objection to this was sustained. He opined that the victim's injuries could have been caused by something other than a dangerous weapon.

Following closing arguments, a conference on jury instructions was held. The trial court refused defendant's tendered instructions on aggravated assault, finding that defendant was not charged with such crime nor was this crime a lesser-included offense of any crime with which defendant had been charged. The court also refused defendant's tendered instruction on battery, finding that the State's battery instruction was more appropriate as defendant's instruction involved language to be given in a case in which an affirmative defense is alleged. The court further refused defendant's instructions on robbery and theft. The jury was instructed and after deliberation, acquitted defendant of attempted murder but found defendant guilty of attempted armed robbery and three counts of aggravated battery.

The public defender's office was appointed to represent defendant at the sentencing hearing. The court was presented with certified copies of defendant's two 1973 convictions for armed robbery and 1983 conviction also for armed robbery. Defendant committed the instant crime while on bond from the 1983 conviction. The court also considered the circumstances surrounding the instant case, including the fact that Peterson's face and neck had been slashed, resulting in permanent scars. In mitigation, the court refused to admit into evidence the trial transcript of defendant's 1983 conviction of armed robbery, by which defendant apparently sought to establish that he suffered from some type of mental disorder. At the close of the hearing, the court sentenced defendant to extended consecutive terms of 10 years for each count of aggravated battery and an extended term of 30 years for attempted armed robbery.

Defendant's first contention is that the trial court erred in denying defendant's motion for automatic substitution of the trial Judge. There are two methods in which a defendant can move to substitute a trial Judge. A defendant may seek "automatic substitution" of the Judge (Ill. Rev. Stat. 1983, ch. 38, par. 114-5(a)) or removal of the Judge "for cause" (Ill. Rev. Stat. 1983, ch. 38, par. 115-5(c)). Section 114-5(a) provides for automatic substitution as follows:

" Within 10 days after a cause involving only one defendant has been placed on the trial call of a Judge the defendant may move . . . for a substitution of that Judge on the ground that such Judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such motion the court shall proceed no further in the cause but shall transfer it to another Judge not named in the motion. The defendant may name only one Judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two Judges as prejudiced." (Emphasis added.)

Section 114 -- 5(c) allows for substitution for cause and provides:

"In addition to the provisions of subsections (a) and (b) of this Section any defendant may move at any time for substitution of Judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a Judge not named in the motion; provided, however, that the Judge named in motion need not testify, but may submit an affidavit if the Judge wishes. If the motion is allowed, the case shall be assigned to a Judge not named in the motion. If the motion is denied the case shall be assigned back to the Judge named in the motion." (Emphasis added.)

On July 12, 1983, defendant filed a motion before Judge Frank Orlando seeking an automatic substitution of Judge Orlando pursuant to section 114 -- 5(a). The trial court granted defendant's motion and the cause was assigned to Judge Lester Bonaguro. Judge Bonaguro was subsequently transferred and the cause was assigned to Judge Rosaland M. Crandell on October 7, 1983. On that same day, defendant appeared before Judge Crandell and filed a motion for substitution of Judge Crandell for cause. Pursuant to section 114 -- 5(c), the cause was transferred to Judge Francis Glowacki for a hearing to determine if there was evidence that Judge Crandell was prejudiced against defendant. On October 18, Judge Glowacki ruled that defendant's motion be stricken for failure to state a factual basis for substitution of Judge Crandell on grounds of prejudice. The cause was then reassigned to Judge Crandell for trial.

On November 28, 1983, defense counsel argued that defendant should have been granted a substitution of Judges as a matter of right and for cause. On November 29, the trial court granted defendant's motion on the basis that section 114 -- 5(a) allows those accused with Class X felonies two automatic substitutions of Judges. On December 8, the trial court, with Judge Crandell presiding, granted the State's motion to reconsider and reversed her ruling transferring the case for reassignment.

Defendant asserts that section 114-5(a) allows those accused with Class X felonies the right to name two Judges in two separate motions for substitution within 10 days of the assignment of the cause to their respective trial calls. We disagree. Prior to 1979, section 114-5(a) provided that all defendants had the right to automatically substitute two Judges. (Ill. Rev. Stat. 1977, ch. 38, par. 114-5(a).) The committee comments provided that "[this] section allows one motion but the motion may contain the names of two Judges." (Ill. Ann. Stat., ch. 38, par. 114-5, Committee Comments, at 253 (Smith-Hurd 1977).) Therefore, this court determined that section 114-5(a) provided a defendant with one opportunity to substitute two Judges. People v. Scarpelli (1980), 82 Ill. App. 3d 689, 693, 402 N.E.2d 915; People v. Davis (1977), 54 Ill. App. 3d 517, 524, 369 N.E.2d 1376; In re Stiff (1975), 32 Ill. App. 3d 971, 974, 336 N.E.2d 619.

In 1979, section 114 -- 5(a) was amended to provide that only defendants charged with Class X felonies are allowed two automatic substitutions, with all others allowed only one substitution as a matter of right. We believe that, in the absence of language to the contrary, the legislature intended no change in the procedure by which a defendant seeks an automatic substitution of Judges. Therefore, we hold that section 114 -- 5(a) provides a defendant charged with a Class X felony with only one opportunity to substitute two Judges within 10 days after his cause is placed before the trial call of a Judge.

In the instant case, defendant's first motion to substitute Judges was filed within 10 days of the cause' being placed on Judge Orlando's call. The July 12, 1983, motion, however, failed to request substitution of Judge Crandell. Therefore, the trial court was correct in denying defendant's second motion to substitute Judge Crandell where defendant failed to include Judge Crandell in defendant's first motion.

Defendant's second contention is that the trial court committed reversible error by reconsidering its decision to grant defendant's motion to substitute Judge Crandell from the case. We find that Judge Crandell's reconsideration of the court's ruling was proper where defendant's motion for substitution for cause was properly reassigned to her after Judge Glowacki determined that defendant's allegation of prejudice lacked a factual basis. Section 114 -- 5(c) specifically provides that if a motion for cause is denied "the case shall be assigned back to the Judge named in the motion." The trial court correctly recognized that it had improperly granted defendant's "motion" for automatic substitution and therefore vacated the judgment. It is well established that a motion to reconsider is an appropriate method to be utilized by the trial court to correct its own error. (People v. Stokes (1977), 49 Ill. App. 3d 296, 298, 364 N.E.2d 300.) Therefore, it is clear that the trial court had jurisdiction to rule on the State's motion to reconsider.

Defendant's third contention is that he was denied an opportunity to effectively represent himself where the trial court abused its discretion by not allowing defendant standby counsel during trial. An accused has a sixth amendment right to be represented by counsel or to waive counsel and proceed pro se. (People v. Campbell (1984), 129 Ill. App. 3d 819, 820, 473 N.E.2d 129.) Yet, the accused has no such right to both representation to counsel and to also conduct portions of the proceeding on his own. (McKaskle v. Wiggins (1984), 465 U.S. 168, 178-84, 79 L. Ed. 2d 122, 133-37, 104 S. Ct. 944, 950-54.) A court also may appoint "standby counsel" to assist a pro se defendant and to protect the judicial process from deterioration occasioned by improper and inadequate conduct of the defense. (See Faretta v. California (1975), 422 U.S. 806, 835, 45 L. Ed. 2d 562, 581-82, 95 S. Ct. 2525, 2541; see People v. Allen (1967), 37 Ill. 2d 167, 172, 226 N.E.2d 1.) The court "possesses broad discretion in relation to the appointment of counsel for advisory or other limited purposes to supersede the defendant in the conduct of the defense." (People v. Allen (1967), 37 Ill. 2d 167, 172, 226 N.E.2d 1; see McKaskle v. Wiggins (1984), 465 U.S. 168, 177, 79 L. Ed. 2d 122, 132-33, 104 S. Ct. 944, 950.) We hold that the trial court did not abuse its discretion by denying defendant standby counsel.

The trial court properly denied defendant's request for standby counsel where the court believed that if it allowed such counsel defendant would attempt to act pro se on some matters and then seek representation with counsel on other matters. In McKaskle v. Wiggins, the Supreme Court cautioned that multiple voices "for the defense" will confuse the message the defendant wishes to convey, thus defeating the purpose of the defendant appearing pro se as announced in Faretta. The court further stated that:

"First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel's participation over defendant's . . . objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded." (Emphasis in original.) McKaskle v. Wiggins (1984), 465 U.S. 168, 178, 79 L. Ed. 2d 122, 133, 104 S. Ct. 944, 951.

On April 30, 1984, the trial court allowed defendant's pro se request and appointed public defender Gino Peronti as standby counsel. During a hearing before the court on May 11, 1984, defendant informed the court that he was not capable of presenting the motion being argued; therefore, he requested and the court granted defendant's motion for Gino Peronti to be appointed to represent defendant. The court made clear to defendant, however, that defendant's appointment of counsel would be for the entire trial; that defendant had persisted in delaying the trial; that the court would not allow a "hybrid" proceeding in which defendant could have counsel representing him on some matters but not on others. On May 18, 1984, defendant, in direct contradiction of the court's previous order, again requested that he be allowed to represent himself pro se. At that point, the court granted defendant's request to appear pro se without the appointment of standby counsel. Defendant did not object to the court's decision not to appoint standby counsel. On May 30, 1984, however, defendant requested that standby counsel be appointed. The court denied his request. The court offered defendant the alternative of having the public defender's office represent him or allowing defendant to appear pro se. After making an intelligent and knowing waiver, defendant agreed to represent himself pro se.

The trial court's refusal to allow a hybrid trial was clearly not an abuse of its discretion. Defendant caused his own problems by his ambivalence as to whether he wished to represent himself. Initially, he requested counsel until it was given. He then repeatedly withdrew his requests for counsel and asked to represent himself. That being allowed, he again reverted to a motion for appointment of counsel, and being given that, asked for the opposite. While a defendant should be afforded every opportunity to secure counsel of his own choosing, a defendant cannot impose unnecessary delays on the court for the purpose of disrupting or undercutting the orderly administration of Justice. See People v. Heidelberg (1975), 33 Ill. App. 3d 574, 591-94, 338 N.E.2d 56; United States v. Burton (D.C. Cir. 1978), 584 F.2d 485, 489.

Defendant's fourth contention is that he was denied an opportunity to effectively represent himself because he had no access to a law library or legal materials. We hold that defendant's contention is without merit. In People v. Heidelberg (1975), 33 Ill. App. 3d 574, 591, 338 N.E.2d 56, this court rejected defendant's contention that an incarcerated pro se defendant must be afforded access to a law library. In reaching this Conclusion, the court stated:

"Where a prisoner in custody knowingly and voluntarily elects to manage his defense, he relinquishes many of the traditional benefits associated with the right to counsel. The constitution does not require in the case of a prisoner who elects to represent himself pro se, that he be exempted from regular jail procedures and searches, and no duty exists where such facilities are not commonly available in a common jail, to provide him law books, or private telephones, or unlimited access to witnesses, investigators or other items he may feel necessary. By electing to represent himself, a prisoner in custody may not expect favored and privileged treatment ...

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