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12/21/95 PEOPLE STATE ILLINOIS v. DONALD LEGO

December 21, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DONALD LEGO, APPELLANT.



Appeal from the Circuit Court of Will County, the Hon. William R. Penn, Judge, presiding.

The Honorable Justice Harrison delivered the opinion of the court:

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

This appeal (134 Ill. 2d R. 651(a)) by the defendant, Donald Lego, follows the denial of his petition for post-conviction relief brought in the circuit court of Will County pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq.). On September 14, 1983, defendant was charged by indictment with having committed the murder of Mary Johnson on or about August 26, 1983. Defendant represented himself throughout the proceedings both at trial and at his sentencing hearing. On March 16, 1984, a jury found him guilty as charged and three days later found no mitigating factors sufficient to preclude the imposition of a sentence of death. In his direct appeal, in which he was represented by counsel, this court affirmed both his conviction for intentional murder and the sentence of death. ( People v. Lego (1987), 116 Ill. 2d 323, 107 Ill. Dec. 647, 507 N.E.2d 800.) The United States Supreme Court denied his petition for writ of certiorari. Lego v. Illinois (1988), 488 U.S. 902, 102 L. Ed. 2d 240, 109 S. Ct. 251.

On March 9, 1989, represented by counsel, the defendant sought post-conviction relief, contending, inter alia, that an impaired mental condition had rendered him incapable of validly waiving his right to the assistance of counsel. At the hearing on his post-conviction petition, although defendant put on substantial evidence, the State put on none. Defendant's principal evidence concerning this issue consists of the depositions of two experts, a psychologist and a psychiatrist, both of whom diagnosed defendant as suffering from organic brain syndrome and expressed the opinions that defendant was so afflicted when he waived his right to the assistance of counsel and that his decision to waive this right appears to have been a product of his mental condition. Following the hearing, the trial court, without explanation, found in favor of the State and against the defendant.

Although a court may consider a defendant's decisionto represent himself unwise, if his decision is freely, knowingly, and intelligently made, it must be accepted out of "'that respect for the individual which is the lifeblood of the law.'" ( People v. Silagy (1984), 101 Ill. 2d 147, 179-80, 77 Ill. Dec. 792, 461 N.E.2d 415, quoting Illinois v. Allen (1970), 397 U.S. 337, 350-51, 25 L. Ed. 2d 353, 363, 90 S. Ct. 1057, 1064.) Because an accused who manages his own defense relinquishes many of the traditional benefits associated with the right to assistance of counsel, the accused must, in order to represent himself, knowingly and intelligently forgo those relinquished benefits. ( Faretta v. California (1975), 422 U.S. 806, 835, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525, 2541.) If a defendant seeks to waive counsel, the trial court must not only determine that he is competent to stand trial but also satisfy itself that his waiver of this constitutional right is knowing and voluntary. ( Godinez v. Moran (1993), 509 U.S. 389, , 125 L. Ed. 2d 321, 333, 113 S. Ct. 2680, 2687.) Ordinarily a waiver is an intentional relinquishment or abandonment of a known right or privilege. ( Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023.) Although a defendant need not possess the skill and experience of a lawyer in order to choose self-representation competently and intelligently, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "'he knows what he is doing and his choice is made with eyes open.'" ( Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 581-82, 95 S. Ct. at 2541, quoting Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 279, 87 L. Ed. 268, 275, 63 S. Ct. 236, 242.) This requirement of knowing and intelligent choice calls for nothing less than a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. ( Patterson v. Illinois (1988), 487 U.S. 285, 292, 101 L. Ed. 2d 261, 272, 108 S. Ct. 2389, 2395; Moran v. Burbine (1986), 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141.) The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances of that case, including the background, experience, and conduct of the accused. Johnson, 304 U.S. at 464, 82 L. Ed. at 1466, 58 S. Ct. at 1023.

At defendant's arraignment on September 22, 1983, he informed the court that he would be representing himself throughout all of the proceedings. The court thoroughly advised him of his right to be represented by counsel, including the possibility that the death penalty could be imposed if he were found guilty, whereupon defendant assured the court that he "fully understood all of the implications." Later, when asked how much formal education he had, defendant declared, "I think rather, your Honor, in lieu of answering that question, that it would be more desirable to examine into the possible law experience cases handled in the Supreme Court of the United States-." Defendant indicated that he "could not" answer the question concerning the extent of his formal education, explaining, "That is not within my knowledge." Asked whether he had any experience either in representing himself or in counseling others concerning legal matters, defendant, 51 years old at the time, responded that he had "40-years experience *** inside and outside the courtroom and representing others as well as himself."

Approximately a week later, on September 27, 1983, at a hearing before another judge on a motion by the defendant, the State asked the court to admonish the defendant again, if he wished still to proceed pro se, concerning the nature of the charges against him as well as other relevant matters. In doing so, the court inquired again about the extent of the defendant'sformal education, including any courses he had taken. In reply defendant apprised the court, "We can, quite necessarily, take the bigger part of the morning to name them all. But I can highlight. Sheetmetal school, I can highlight courses in philosophy, psychology, sociology, physiology, and of course law courses." He informed the court that all of the courses he had studied he had taken "within the confines of the State penitentiaries, and the reformatories throughout the Midwest." Asked by the court what law courses he had studied, defendant answered,

"Oh, my God, I have studied I think it's with my name in the books that I have in front of me here ***. *** Preparation of certioraries and grantings thereof, just about all of the experience that I have had, your Honor, would be in terms of criminal law, independent of civil."

Amplifying, defendant added, "I am quite aware that the State has cases on me that they thoroughly know my past experience. It's been widely covered in years past, through television shows, twenty years ago, twenty-five, so I go way back."

Defendant indicated that some of the cases he had "represented" were in the criminal procedure books he had before him in court that day. When the court informed defendant that it was unacquainted with the cases about which he was speaking, defendant assured the court, as he would do repeatedly, "They're in just about every book that I have been in receipt of ***." Pressed to cite some of the cases in which he had been involved, defendant replied, "Oh, yes. This is one that's commonly used today. It is taught in the law schools. It's one that involved the case that I handled to the Supreme Court of the United States," which he named eventually as "Lego versus Twomey, and that was heard, writ of certiorari granted, and subsequent dividing of court four to three on the question that this is talking about." Pressed further, defendant explained that hedid not have the citation in front of him but advised the court, "I do have the-they're talking about my name in here, and that I handled it." Defendant assured the court that he had done all the briefing and legal research on the case and that he had "pro se'd all the way." Similarly, when the court inquired, "You say there were other cases in which you have been a pro se defendant?" defendant answered, "Yes. Your Honor, I have been associated-again if we're going to start citing them, I would rather that we would cite the most paramount one throughout the United States," which defendant identified as People v. Lego (1965), 32 Ill. 2d 76, 203 N.E.2d 875.

However, we note that the reported decision in that case, which was an appeal to this court following a conviction for robbery, shows defendant represented by appointed counsel. Further, one of defendant's exhibits admitted into evidence at the post-conviction hearing reveals that the circuit court appointed the public defender in 1961 to represent defendant on that charge. In addition, according to defendant's brief in this court, although he drafted a petition for writ of certiorari pro se in that case in 1971, thereafter he was represented by appointed counsel. In a memorandum decision ( Lego v. Twomey (1971), 402 U.S. 928, 28 L. Ed. 2d 862, 91 S. Ct. 1528) defendant's motion for the appointment of counsel was granted, and the reported decision of the court ( Lego v. Twomey (1972), 404 U.S. 477, 30 L. Ed. 2d 618, 92 S. Ct. 619) shows that the attorney so appointed argued the cause on his behalf. We note as well that other of defendant's exhibits admitted at the post-conviction hearing out of which the instant appeal arises disclose that he was represented by counsel in Missouri in 1947 when a jury found him guilty of armed robbery and in Iowa in 1953 when he pled guilty to charges of robbery and jail break.

Continuing, defendant expressed the view that such inquiry was "wasting the Court's time" and was "a concerted effort to try to disparage the defendant in some way, to keep him from representing himself." He could demonstrate to the court if it became necessary to do so, he claimed, that he had represented himself and others in "something like three thousand to four thousand cases," "much [sic] of them *** very effectively." Defendant thereupon expressly waived the right to counsel, assuring the court that he did so understandingly and with full knowledge of the legal issues involved and describing himself as "very capable of the legal issues that will be presented throughout, to the conclusion of the trial." Over defendant's objection, the court appointed standby counsel. In the same vein, on November 21, 1983, at another hearing on motions of the defendant, he observed, "If I'm given the rights guaranteed to a defendant in a pre-trial restraint situation, I think I amply handle this case properly and can handle it better than any lawyer or ten lawyers." Later, at a hearing conducted on January 3, 1984, concerning the motion of the public defender to withdraw as standby counsel, defendant argued in support of the motion. He apprised the court that he had acted "as counsel" over a period of 40 years, starting at the age of 10 when, for example, he had written letters to the parole board for other children in reform school. He had acted "in the capacity as a lawyer," he said, from that time "all the way up til the present." Having served for "many years" as "jailhouse lawyer" at Stateville, defendant ...


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