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12/29/88 the People of the State of v. Brian Smalley

December 29, 1988





533 N.E.2d 428, 178 Ill. App. 3d 314, 127 Ill. Dec. 556 1988.IL.1903

Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.


JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.


Following a bench trial in the circuit court of Cook County, defendant, Brian Smalley, was convicted of robbery and aggravated battery. He was sentenced to 90 days of periodic imprisonment, placed on probation for three years for the robbery conviction and 2 1/2 years for the aggravated battery conviction, and ordered to pay $600 restitution to the victim. On appeal, defendant contends that his constitutional right to representation by counsel of his own choice was violated when the trial court permitted an attorney not of his choosing to substitute for his incapacitated, privately retained counsel. We affirm, finding that defendant's acquiescence in the substitution of attorneys constituted an exercise of his right to be represented by counsel of his choice.


In view of the nature of defendant's contention we will limit our recitation of the facts to those which are necessary for an understanding of the case and relevant to the issue raised on appeal. Defendant and two codefendants, who are not parties in this appeal, were jointly charged with the robbery and aggravated battery of Patrick Strangaritch in Lincoln Park in Chicago on June 15, 1984. At their joint bench trial, the State presented the testimony of the victim and an eyewitness to the crime, both of whom identified defendant as one of the assailants immediately after his arrest on the night of the offense and again at trial. Several police officers also testified to the events leading to and following the apprehension and arrest of defendant and his codefendants. The substance of defendant's testimony in his own behalf was that although he was in the vicinity of the offense at the time of its occurrence, he was mistakenly identified as one of the assailants.

Defendant's privately retained attorney, Paul Goldman, filed his appearance on July 5, 1984, and appeared at the arraignment on July 10 to enter pleas of not guilty on behalf of defendant and a codefendant, Anthony Lesain. Following the arraignment proceeding, Goldman informed the trial court that he was scheduled to be in the hospital on July 24, the date set for a discovery hearing. Goldman was present at two hearings in September and December 1984, but failed to appear on four other occasions between October 1984 and February 1985.

On March 19, 1985, Goldman appeared in court but when he became physically unable to continue participating in the proceedings, the trial court appointed the public defender to represent defendant and Lesain. On April 17, the assistant public defender who had filed an appearance on their behalf informed the trial court that defendant and Lesain both wished to retain private counsel. The trial court granted a continuance until May 10 to allow them to hire attorneys of their choice. On that date, Goldman again appeared on behalf of defendant and withdrew his appearance as counsel for Lesain, who was thereafter represented by an assistant public defender.

Prior to the commencement of trial on the morning of August 5, 1985, Goldman informed the court that he was extremely ill and needed to lie down and rest for a short time. He assured the court, however, that his illness was in remission and that following a brief repose he would be ready to try the case. The trial court expressed skepticism about Goldman's ability to continue as defendant's counsel but Goldman insisted that his illness would not prevent him from providing defendant with able representation. Defendant was then brought into the courtroom and asked by the trial court whether he was aware of Goldman's medical condition, i.e., that Goldman suffered from some form of cancer, to which defendant responded in the affirmative. The trial Judge noted that Goldman had been ill for some time, informed defendant of Goldman's request to lie down and stated, "I have some questions in my mind as to whether he can fully represent you because of his medical condition." Defendant responded,

"Well, I feel he is capable of doing it. He . . . knows for himself if he is able to or not. . . . I can see your point, . . . but if he says he can continue with it, I don't see nothing wrong with it."

Reiterating his uncertainty as to Goldman's ability to conduct the defense, the trial Judge offered defendant the choice of either taking a continuance to secure a different or "back-up" attorney or proceeding with the case that day. Defendant expressly chose to proceed with Goldman as his counsel, and following Goldman's brief rest, the trial commenced. The State presented its case in chief through the testimony of the victim and two police officers. Goldman's participation included cross-examination of the victim and one of the police officers.

The trial was continued until August 15, 1985, on which date defendant testified in his own behalf on direct examination by Goldman. On August 30, Paul Goldman's son, David Goldman, an attorney, was present in court but did not participate in the proceedings, which consisted of the ...

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