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04/27/88 the People of the State of v. Duane G. Davis

April 27, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DUANE G. DAVIS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

523 N.E.2d 165, 169 Ill. App. 3d 1, 119 Ill. Dec. 697 1988.IL.611

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant Duane G. Davis, was charged by information with one count of theft, five counts of unlawful use of a weapon, and one count of reckless conduct. After a jury trial, he was found guilty on all counts. Judgment was entered only on the theft conviction, and defendant was sentenced to a term of three years in the Department of Corrections.

On appeal, defendant argues that he was not proved guilty of theft beyond a reasonable doubt, that the jury was improperly instructed, that the trial court abused its discretion in imposing the maximum sentence, and that he was denied his right of self-representation. Although we find that defendant was proved guilty beyond a reasonable doubt, we reverse because he was improperly denied his constitutional right to represent himself at trial.

Defendant was represented at trial by an assistant public defender. On the morning that trial was scheduled to begin, however, defendant filed a written motion for self-representation and informed the court that he wished to discharge counsel and proceed pro se. The request was denied, and the case went to trial.

Defendant testified, as he had in a prior trial on different charges (see People v. Davis (1988), 165 Ill. App. 3d 648), that he is president of a community group called the Self Help Organization for the Redevelopment and Reeducation of the Young , which opposes guns, drugs and stealing. On the morning of March 3, 1986, defendant was seen walking down the middle of County Street in Waukegan carrying a shotgun over his shoulder. Witnesses saw him fire the shotgun into the air several times. Police soon arrived, and defendant dropped the shotgun and put his hands on his head. Defendant apparently did not resist arrest, but he was also found to be carrying a .25 caliber automatic pistol and a .32 caliber pistol. A witness at trial identified the .25 caliber pistol as one that had been stolen from his place of business in Kenosha, Wisconsin, on March 16, 1985. A police officer who took defendant's statement after arrest testified that defendant told him the .25 caliber pistol was stolen and that defendant had traded drugs for it. Defendant also told the officer that a .308 Remington rifle he had turned in to the police the day before was also stolen and that he had traded drugs for that gun as well.

Defendant explained at trial that he was taking the guns to the police station to turn them in on behalf of SHORTY. He also testified that on March 2, 1986, the day before he was arrested, he had tried to turn in the .25 and .32 caliber pistols, the shotgun, and the Remington rifle by taking them to the police station in the trunk of his car. When he brought the rifle into the station, however, the police started to arrest him, but when defendant said that his young children were in the car, he was allowed to leave.

Defendant testified that since his first attempt to turn in the guns was unsuccessful, he decided to try again the next day in a different way. He stated that by walking to the police station with the guns and by firing off the shotgun, he could dramatize the goals of SHORTY. He admitted trading drugs for the .25 caliber pistol in June 1985 but testified that he did so to show the power of drugs as money. He testified that he did not know the pistol was stolen until he was told so by the police.

We consider first whether defendant was proved guilty beyond a reasonable doubt of theft of the .25 caliber pistol. The State, of course, is required to prove each of the essential elements necessary to constitute the crime charged. (People v. Falkner (1978), 61 Ill. App. 3d 84, 86.) The statute under which defendant was charged defines "theft" as follows:

"A person commits theft when he knowingly:

(d) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to ...


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