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March 31, 1994


Appeal from the Circuit Court of St. Clair County. No. 91-CF-60. Honorable Patrick J. Fleming, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Chapman, Lewis, Goldenhersh

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

After a jury trial, defendant, Darrell Brockman, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 12-2 (a)), armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2), and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12-4 (a)). Defendant was sentenced to serve consecutive 30-year prison terms on the armed violence and armed robbery convictions. No judgment was entered on the aggravated battery verdict, as it was deemed to be a lesser-included offense of armed violence. Defendant appeals his convictions and raises the following three issues: (1) whether defendant was denied a fair trial because (a) defendant did not voluntarily waive his right to counsel, (b) the trial court failed to rule on the merits of defendant's claim that his current counsel was ineffective and refused to consider appointing new counsel, (c) trial counsel was ineffective in that he failed to interview two alibi witnesses and failed to certify that defendant planned to present an alibi defense at trial, (d) the trial court forced defendant to trial pro se with the use of standby counsel immediately following the denial of defendant's motion to dismiss without giving defendant the opportunity to prepare his defense; (2) whether the trial court erred in failing to instruct the jury on the limited use to be made of defendant's prior convictions for forgery and robbery; (3) whether defendant was denied his right to have his interests represented when the court communicated with the jury about the case, where neither the pro se defendant nor standby counsel was consulted about a note from the deliberating jury to the trial court before the trial court answered the jury's inquiry. We affirm.

Defendant was charged by information with armed robbery, armed violence, and aggravated battery in connection with the stabbing of Paul Braun on December 26, 1990. An assistant Public Defender was appointed as defendant's attorney. On March 18, 1991, the trial was continued on defendant's motion until the April docket. The State did not object to this continuance. On April 9, defendant again filed a motion to continue, which was granted. The State did not object. On April 22, defendant sent a letter to the trial court asserting his innocence and complaining that he could not see his public defender when necessary. On May 10, 1991, the trial was again continued, this time on the State's motion without objection by defendant.

On June 21, 1991, both the State and the defense announced ready for trial. The case was then called for trial on June 26, 1991.

On the day trial was scheduled to begin, defendant's public defender explained to the trial court that he and defendant had reached an impasse and that defendant was no longer communicating with him. He stated that defendant told him the Sunday before trial that he sent a letter to the court complaining about his services and requesting a new lawyer be assigned. The public defender thought that because of the impasse, he could not provide defendant with effective representation and asked that he be allowed to withdraw from the case. The trial court then questioned defendant, who agreed that he was not satisfied with his representation and stated that he did not have money to hire private counsel. The trial court then asked defendant "Well, are you expecting this court to appoint you another Public Defender and if you don't like that one, to appoint another one and on and on?" Defendant answered "No" and explained that he wanted an attorney who would get things done such as talking to the necessary witnesses. The prosecutor objected on the basis that there was ample opportunity prior to the day the trial was to start for defendant to discern that he had a problem with his public defender and that defense counsel's motion to withdraw should be disallowed without further showing of prejudice. The public defender then stated his belief that if he was to proceed as defendant's counsel, defendant would receive inadequate court representation. The trial court stated that there was no indication that defendant would cooperate with another public defender, but the court asked defendant whether he would accept a substitute public defender, and defendant stated he would. The prosecutor then interjected that the trial court would be setting bad precedent by allowing a defendant to come in on the day of trial and request a different public defender. The prosecutor opined that it would slow down the system and not allow the court to complete its business. Without further Discussion about defendant's specific complaints about his lawyer, the trial court denied the motion to withdraw. The public defender then told the trial court that he did not believe he would be getting any assistance from his client concerning the defense of the matter. As a result, the trial court asked defendant if he wanted to represent himself and have the court appoint the public defender as a consultant. Defendant stated that would be acceptable. The following Discussion then ensued:

"THE COURT: Do you want to proceed that way?

THE DEFENDANT: I don't have any choice.

THE COURT: That is right. Well, you have a choice.

You can cooperate with [the public defender] or not. If you are not going to cooperate with him, then you will represent yourself, but I will make him and appoint him as an advisor to you and he will be available during the proceedings, during the motion to suppress, during this jury selection, during the trial if you want to ask him any questions, but you'll be handling it all yourself unless you choose to communicate with him. It is up to you.

You say you don't want to communicate with him, that is fine. He will be here and he will be available if you want to communicate with him. You have to get these witnesses in, you ...

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