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12/21/87 the People of the State of v. Milton Johnson

December 21, 1987





518 N.E.2d 100, 119 Ill. 2d 119, 115 Ill. Dec. 575 1987.IL.1888

Appeal from the Circuit Court of Will County, the Hon. Robert R. Buchar, Judge, presiding.


JUSTICE MORAN delivered the opinion of the court. JUSTICE SIMON, Concurring in part and Dissenting in part.


Defendant, Milton Johnson, was indicted in the circuit court of Will County for four counts of murder and four counts of felony murder in violation of sections 9-1(a)(1) and 9-1(a)(3), respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(3)). He was tried by a jury and found guilty on all eight counts. At a separate bifurcated sentencing hearing, as to which defendant waived his right to a jury, 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. The court thereupon sentenced defendant to death on each of the felony-murder convictions. No sentence was pronounced as to the four murder convictions. Defendant's post-trial motion was denied, and he brings a direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603), alleging numerous errors at all stages of the proceedings.

The evidence adduced at trial reveals that on August 20, 1983, four women were murdered in the "Greenware by Mary" ceramic shop, located on East Cass Street in Joliet, Illinois. Three of the victims, 29-year-old Pamela Ryan, 38-year-old Barbara Dunbar, and 46-year-old Marilyn Baers, the owner of the ceramic shop, sustained multiple stab wounds which caused their death. The fourth victim, Anna Ryan, age 75, was stabbed and shot to death.

The first issue we address is whether defendant knowingly and effectively waived his right to counsel during the guilt phase of the trial.

The record reveals that on August 16, 1984, defendant appeared for his arraignment without counsel. The trial court furnished him with a copy of the indictment, which set forth the nature of the charges. Defendant waived reading of the indictment, stating that he was "familiar with it." At his request, the court then set a new date for the arraignment to allow defendant additional time in which to secure private counsel.

On September 13, 1984, defendant appeared in court represented by his counsel, William Swano. Mr. Swano waived formal reading of the indictment, and entered defendant's plea of not guilty to each of the charges.

Approximately two months later, defendant's counsel filed a motion for leave to withdraw because of defendant's inability to pay his legal fees. During the December 19, 1984, hearing, the trial court initially denied the motion, indicating that defendant's inability to compensate Mr. Swano in accordance with their prior agreement was an insufficient basis upon which to permit Mr. Swano leave to withdraw. However, defendant then personally addressed the court, stating that he wished to have his counsel "dismissed" from the case because he would not receive "true legal representation by an attorney who isn't being paid for his services."

Defendant further advised the court that he would prefer not to be represented by the public defender's office, and specifically requested the court not to appoint the two assistant public defenders who represented him in a previous murder trial. Defendant indicated that he would be "more than satisfied" if the court appointed Mr. Andreano of the public defender's office to represent him. Accordingly, the court granted Mr. Swano leave to withdraw, and appointed Mr. Andreano to represent defendant.

On September 30, 1985, the date upon which the trial was scheduled to proceed, defendant orally advised the court that he no longer wished to be represented by Mr. Andreano and the assistant public defender assigned to the case, Mr. Orloff. He filed a pro se motion on October 1, 1985, in which he requested the court to "remove" his present counsel and appoint him "other counsel from outside of the Public Defender's office and from outside of Will County." Defendant claimed in the motion that his counsel denied him opportunities to review discovery materials, refused to investigate certain matters, and failed to contact certain individuals whom he believed should be interviewed.

During the hearing on the motion, defendant stated that he was unable to communicate with his attorneys, and that they were attempting to "convict me more than the State is right now." He further claimed that his attorneys refused to interview certain individuals with whom the police spoke in connection with the murders. When the court inquired as to the basis for defendant's belief that these individuals gave statements to the police, he responded: "It comes around. You hear it, you check it out, you find out. That's all I can tell you about it." Defendant conceded that no one ever informed him that the individuals he wished to have interviewed spoke with the police.

In response to defendant's motion, the State represented to the court that, during his previous murder trial, defendant also moved to dismiss his counsel on the date of trial, claiming he was unable to communicate with the attorneys appointed to represent him. Defendant did not dispute this representation.

At the Conclusion of the hearing, the court denied defendant's motion, finding that he failed to provide any basis upon which the court should appoint other counsel.

During another hearing conducted on the afternoon of October 1, 1985, defendant informed the court that he refused to accept Messrs. Andreano and Orloff as his attorneys; he refused to represent himself; and that he intended to absent himself from the proceedings. The court advised defendant that he had a right not to be present during trial, but that he would require his counsel to conduct the defense.

On October 2, 1985, the date scheduled for jury selection, defendant changed his mind and appeared in court. Since it was unclear at that time whether he intended to proceed pro se, or to absent himself from the proceedings, the court gave defendant the following admonishments:

"THE COURT: Mr. Johnson, you had previously been represented in this cause by privately retained counsel, Mr. Swano, is that correct? . . .

MR. JOHNSON: Original counsel in this case, yes.

THE COURT: Okay, and during the time that Mr. Swano represented you, he advised you of the charges against you, did he not?


THE COURT: Four separate distinct felony murder charges, as well as four murder charges involving four different people, is that correct?


THE COURT: Allegedly occurring at a ceramic shop on East Cass Street. He also informed you as to the possible sentence or sentences that could be imposed if you were found guilty of any or all of these charges, is that correct?


THE COURT: You are aware that they are capital cases? In other words, if the State, upon conviction of any of these charges, could request, and did, in fact, indicate early in this cause that they were going to seek a death sentence hearing in the event of any conviction, is that correct?


THE COURT: So that you're fully aware of that?


THE COURT: You're also fully aware that you are entitled to be represented by a lawyer, that your original lawyer retained by you or your family was allowed to withdraw when it developed that certain monetary arrangements could not be completed by you or your family, and that you insisted that he be allowed to withdraw because in your words you didn't think if he wasn't getting paid he would do the maximum effort in your behalf, is that a correct statement?


THE COURT: Following the allowance of that withdrawal, the Court appointed [the] Public Defender and indicated Mr. Sam Andreano, Public Defender, would be one of the counsel representing you, and that you had no objection at that time to Mr. Andreano, is that a correct statement?


THE COURT: And that that appointment was made, sir, on December 19th of 1984, that is the date that Mr. Swano [was] relieved and that is the same date that Mr. Andreano was appointed with certain restrictions on Mr. Andreano, at your request, that Mr. Alex Bonds and Mr. Ira Goldstein, Assistant Public Defenders, would not be assigned to the case in any way, is that correct?


THE COURT: And that from that December 19th, 1984, up until September 30, 198


The court then asked defendant whether he still wished to absent himself from the proceedings. Defendant responded that he did "not know" but that he would decide after talking further with Mr. Andreano. The court then recessed the proceedings to allow defendant an opportunity to consult with his counsel.

When court reconvened shortly thereafter, Mr. Orloff stated that he and Mr. Andreano spoke with defendant and that they would continue to represent him. However, when the court asked defendant if he was accepting them as his counsel for the duration of the trial, he stated that he was not. The court again inquired of defendant whether he intended to proceed pro se, and he responded that "hese counsel and I are trying to get an understanding. That's the only thing I can say about these counsels right now."

At the Conclusion of the hearing, defendant represented that he was willing to communicate with his counsel. Accordingly, the court continued the proceedings until the following day to allow him a further opportunity to consult with them.

When court reconvened on October 3, 1985, Mr. Andreano stated that defendant refused to speak with him and that nothing "has been resolved nor can it be." The court thereupon advised defendant that he would be required to proceed pro se, but that Messrs. Andreano and Orloff would be appointed as standby counsel "available for advice and consultation at all times during the course of this trial." The trial was continued ...

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