APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
537 N.E.2d 1036, 181 Ill. App. 3d 760, 130 Ill. Dec. 707 1989.IL.521
Appeal from the Circuit Court of Adams County; the Hon. John C. Wooleyhan, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. LUND and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
After a jury trial, defendant was convicted of the offenses of aggravated assault and unlawful use of weapons. (Ill. Rev. Stat. 1987, ch. 38, pars. 12-2(a)(1), 24-1(a)(10).) He was sentenced to 12 months' probation with a condition of 90 days' incarceration, and ordered to pay court costs of $121, including a fine of $25 for the Violent Crime Victims Assistance Fund (Ill. Rev. Stat. 1987, ch. 70, par. 510(c)(1)). He appeals, arguing (1) he was denied his sixth amendment right to counsel where the record does not affirmatively show whether his counsel waiver met the minimum requirements of Supreme Court Rule 401 (107 Ill. 2d R. 401), and (2) the trial court committed reversible error where the jury was not instructed as to any mental state for the offense of aggravated assault.
Defendant was charged by information alleging that on November 28, 1987, he committed the offense of aggravated assault when, in committing an assault, he used a deadly weapon and, without authority, knowingly pointed a .22 caliber rifle, firing one shot at Jeffrey McMillan, Theresa Leebold, and Yolanda Hernandez, thereby placing each of them in reasonable apprehension of receiving bodily harm; and he committed the offense of unlawful use of weapons when he knowingly possessed on or about his person upon public land within the corporate limits of Quincy, a firearm, a .22 caliber rifle. On November 30, 1987, defendant appeared with counsel and was "advised of charge and possible penalties." On February 1, 1988, the court granted the motion of the defense attorney to withdraw as counsel because defendant had failed to cooperate with counsel, and further ordered the cause to remain on the jury trial docket, with defendant "to appear with counsel" on February 8, 1988, for further pretrial matters. On February 8, 1988, the court entered a minute order finding "defendant waived his right to counsel" and ordering the cause to remain on the jury trial docket for February 9. A similar docket entry was made. A jury trial was conducted on February 11, 1988. Defendant appeared pro se and represented himself.
The State's evidence included the testimony of Jeffrey McMillan, Theresa Leebold, and Yolanda Hernandez. According to the evidence, defendant attended a birthday party with Shannel Brackley on the night of November 28, 1987, at Leebold's apartment. McMillan and Leebold testified defendant was drinking at the party when they left and picked up Hernandez. On the way back to Leebold's apartment they saw defendant, his face bleeding, on the street with Brackley. McMillan parked and he, Leebold, and Hernandez got out of the car to inquire what had happened. Defendant told them he had been beaten up at Leebold's apartment, asked to be left alone, and told Leebold and McMillan he was going to "get" all of them. Defendant then left and the others returned to Leebold's apartment, which they found empty and in disarray, the front door window broken, with broken beer bottles and blood on the floor. The group left the apartment to try to find out what had occurred in their absence and, on the way back to the apartment, Brackley rolled down the passenger side window in the rear of McMillan's car, saying "There's Ray," and asking defendant what he was doing. McMillan testified he was driving about five miles per hour when he saw defendant, standing on the sidewalk, turn around and lift a rifle, aim it at McMillan's car and fire it.
McMillan testified he saw a flame come out of the gun and thought he heard a sound indicating the car had been hit, so he drove away quickly. Leebold and Hernandez testified they saw defendant raise the long-barreled rifle and point it at the car, whereupon they ducked. Both women testified they heard a sound indicating the car had been hit. All three witnesses testified they were afraid they would be injured when defendant raised the rifle and pointed it at the car and shot. Police were unable to confirm that a bullet had hit the car, none of the car's windows were broken, and no bullet casings were found at the scene. Police officers testified they answered a dispatch about the incident, found defendant at his apartment, noticed a .22 caliber rifle sitting on the kitchen sink inside the door, and recovered the weapon. The gun was loaded. One of the officers testified he smelled the chamber and concluded the gun had been fired within the previous two hours or so. Defendant explained his condition to officers by saying he had been wrestling with his dog. Defendant presented no evidence. The jury returned guilty verdicts.
At defendant's request, the trial court appointed counsel to represent defendant for purposes of sentencing.
Represented by appointed counsel on appeal, defendant first argues he was denied his sixth amendment right to counsel, since the record does not affirmatively show whether his counsel waiver met the minimum requirements of Supreme Court Rule 401. Rule 401 provides:
"(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior ...