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March 21, 1996


The Honorable Justice Miller delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County defendant, Robert Simpson, was convicted of armed robbery and first degree murder. At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and further determined that there were no mitigating factors sufficient to preclude imposition of that sentence. The trial judge sentenced defendant to death on the murder conviction and to 30 years' imprisonment on the armed robbery conviction. Defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons stated below, we affirm defendant's convictions and sentences.


The evidence at trial established that at approximately 10 a.m. on May 20, 1992, defendant, Carolyn LaGrone and Lurlarn Young drove to the Fairway Food store in Glenwood. Defendant and LaGrone entered the store, but left the store a few minutes later without making any purchases. At approximately 10:15 a.m., defendant and LaGrone reentered the store, while Young remained in the car. Defendant approached the service desk, carrying a gun concealed under a piece of newspaper.

LaGrone testified on behalf of the prosecution that when defendant approached the service desk he informed Kitty Koszut, a store employee, that he was robbing the store. Koszut responded, "You must be kidding." Defendant then grabbed Koszut by the back of her smock and forced her to the ground. LaGrone approached the service area and defendant placed money from a cash drawer into a purse that LaGrone held. As defendant was putting money into the purse, Barbara Lindich, a store customer, walked up behind LaGrone and peered over her shoulder. LaGrone testified that defendant asked Lindich if she wanted to help, and then defendant shot Lindich, who later died as a result of the gunshot. Defendant next checked the safe, and then he and LaGrone exited the store. When they reached the car where Young was waiting, defendant drove out of the parking lot.

While they drove away from the scene, Young counted the money and destroyed checks taken from the store. LaGrone testified that they then exited the expressway and entered an alley where defendant removed his shirt and wiped either dirt or makeup from his face. Defendant placed the shirt in a garbage can in the alley.

LaGrone was arrested on May 25, 1992. She gave a statement to police detailing her, Young's and defendant's participation in the offenses. Young was also arrested on May 25, 1992, in a car matching the description of the vehicle seen leaving the scene of the robbery. Young gave police two statements, both of which were reduced to writing. Young also executed a voluntary consent to search the apartment that she and defendant shared.

In the evening of May 25, 1992, police gained entry into the apartment defendant and Young shared by opening the door to the apartment with keys Young had supplied. Defendant was found in the apartment and was placed under arrest. In the early morning hours of May 26, 1992, defendant was placed in a lineup for identification purposes. Eyewitnesses, including employees, who were in the store at the time of the robbery and murder identified defendant as the man they saw rob the Fairway Food store.

On May 26, 1992, police, accompanied by Young, returned to the apartment building where defendant and Young resided. With Young's consent, the police searched a storage locker assigned to Young and defendant. Included in the items police recovered from the locker were a .380-caliber semiautomatic pistol, a .25-caliber semiautomatic pistol, ammunition, a theatrical kit, a beige purse and a khaki raincoat.

At trial, three employees present in the Fairway Food store on the day of the offenses identified defendant as the man who was behind the service desk holding a gun. A customer in the store on the day of the offenses also identified defendant at trial as the man she saw passing in the lane next to her, after she heard a male say, "This is a stick-up," and heard a loud "pop." At trial, two of the same three employees and the customer identified one of the guns recovered from defendant's storage locker as the weapon they saw defendant holding at the time of the offenses.

Shortly after police arrived at the scene, police summoned Hayden Baldwin, a crime scene technician, to process the area. Baldwin testified that he recovered fingerprint impressions from various objects and found a spent casing inside the service office. Later that same evening, in response to a call from police, Baldwin returned to the crime scene to recover a spent projectile that employees had discovered in a door casing.

Barbara Lindich, the store customer shot at the time of the robbery, died as a result of a single gunshot wound to the neck. Forensic testing revealed that the cartridge case recovered from the scene was fired from one of the pistols recovered from defendant's storage locker. Expert testimony also showed that the projectile recovered from the door frame at the crime scene matched the test projectile fired from the same pistol.

Jacqueline Farcaro, a forensic scientist at the Illinois State Police crime lab, testified that latent fingerprints recovered from the crime scene were identified as those of LaGrone.

During all phases of the pretrial and trial proceedings, defendant represented himself with the public defender acting as standby counsel. Defendant called several witnesses who were present in the store at the time of the robbery and murder to testify on his behalf. Although the defense witnesses' description of the events did not corroborate the testimony of the State's witnesses in all respects, none of the defense witnesses' testimony contradicted the prosecution witnesses' accounts. Defendant called codefendant Young to testify, but Young invoked her fifth amendment rights and did not testify. At defendant's request, but against the advice of the judge, the custodial statements of LaGrone and Young were published to the jury. Defendant declined to testify on his own behalf.

At the close of evidence, the jury returned a verdict finding defendant guilty of the first degree murder of Lindich and armed robbery. 720 ILCS 5/9--1(a), 18--2(a) (West 1992). The following day, the matter proceeded to a capital sentencing hearing before the same jury.

At the first stage of the sentencing hearing, the jury found that defendant was 18 or older at the time of the murder for which he was convicted and that he was eligible for the death penalty on the basis of the murder-in-course-of-felony aggravating factor. 720 ILCS 5/9--1(b)(6) (West 1992).

At the second stage of the sentencing hearing, various Chicago police officers and an assistant State's Attorney testified in aggravation. The witnesses described events including defendant's arrests for attempted murder of a police officer, battery, possession of a stolen motor vehicle, escape, fleeing at high speed from police in an automobile, and unlawful use of a weapon by a felon. Certified copies of defendant's prior convictions were entered into evidence. The evidence established that defendant had previously been convicted of and was sentenced to prison or probation for unlawful use of weapons, two separate charges of theft, possession of a stolen motor vehicle, attempted murder, aggravated battery, unlawful use of a weapon by a felon, two separate burglaries, damage to city property, contempt of court, and a charge of grand theft reduced to criminal trespass to a vehicle.

Defendant declined to present evidence in mitigation, but did make a closing argument. At the conclusion of the sentencing hearing, the jury found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The trial judge did not immediately enter judgment or sentence defendant, but with defendant's agreement appointed the standby counsel to represent defendant at post-trial proceedings. However, the judge stated he would allow defendant to supplement appointed counsel's post-trial motions. The trial judge then continued the case for a hearing on post-trial motions.

After a hearing, the trial judge denied appointed counsel's post-trial motion on behalf of defendant and defendant's pro se post-trial motions. The judge then sentenced defendant to death for the murder conviction and 30 years' imprisonment for the armed robbery conviction. Defendant seeks review of his convictions and sentence in this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a).


Waiver of Right to Counsel

Defendant's first allegation of error on appeal is that his waiver of his sixth amendment right to counsel (U.S. Const., amend. VI) was not knowingly and intelligently made. Defendant asks this court to remand his case for a new trial or a new sentencing hearing.

Prior to trial defendant was represented by the public defender. In one of his earliest court appearances, against the advice of counsel, defendant demanded trial. Defendant informed the court that if his counsel was not prepared to proceed directly to trial, he would consider representing himself. However, after conferring with his appointed counsel, defendant rescinded his demand for an immediate trial.

At defendant's next court appearance he informed the court that he would be representing himself and that he did not want the public defender to be shown as representing him. The trial judge informed defendant that a formal waiver of counsel would be required, but that if defendant did proceed pro se, he would appoint the public defender as standby counsel. Defendant reiterated his demand for immediate trial, but agreed to confer with appointed counsel regarding his decisions.

Six weeks later, the public defender assigned to represent defendant asked the court to clarify whether defendant had waived counsel. The judge responded that the public defender was still appointed, but that defendant also had the right to represent himself or to hire another attorney. When the trial judge asked defendant if he understood that he had these choices, defendant responded equivocally that he was ready for trial. When the trial judge then asked him if he wanted to represent himself, he responded "if that's what's going to happen." The judge advised defendant against self-representation, and inquired whether defendant wished to represent himself and if he wished to speak to counsel. Each time defendant responded that he was ready for trial. The judge told defendant that if he wished to represent himself, a formal waiver of counsel would be necessary.

When the judge informed defendant that he would have to make a formal waiver of counsel, defendant complained that multiple members of the public defender's office had appeared on his behalf.

At the court's suggestion defendant consulted with counsel regarding his concerns, but after a recess defendant persisted in his demand that he go to trial immediately. Both the trial judge and the assistant public defender explained that counsel could not provide effective assistance if forced to go to trial at this early stage of the proceedings. The judge informed defendant that he could hire a lawyer who would be willing to go to trial immediately or defendant could represent himself. The judge then asked defendant directly several times if defendant wished to represent himself, and each time defendant answered that he wanted to go to trial immediately.

The judge then informed defendant that he understood defendant to mean he wished to proceed without a lawyer. The judge formally admonished defendant of the charges against him and the range of possible penalties. Defendant stated that he understood the charges and the possible penalties. At the end of the judge's admonishments, defendant again complained that more than one member of the public defender's office had appeared on his behalf. Both the judge and counsel explained the need for more than one attorney to work on the case and the need for a substitute when the attorney assigned to defendant's case had a scheduling conflict. The judge told defendant that his appointed counsel was experienced, but needed time to effectively prepare for trial.

The judge then warned defendant that insistence on an immediate trial would likely result in the State's wanting a very quick trial. Defendant responded, "Let's go." The judge again told defendant that a formal waiver of counsel was required. The judge also restated that appointed counsel needed time to effectively prepare a defense and that the judge would not require them to go to trial without preparation. In response, defendant asked the judge whether "co-counsel" would be appointed to assist him if he represented himself. The judge explained that if defendant waived trial counsel, standby counsel would be appointed, but that standby counsel would be "merely an observer." The judge articulated the very limited role standby counsel would take and emphasized that defendant could confer with standby counsel, but that defendant would be representing himself. Defendant responded, "Sounds fine."

The judge again advised defendant of his right to have appointed counsel represent him, but told him that if the public defender were to continue to represent him, that would require that defendant allow the public defender to effectively prepare the case for trial. The judge once more told defendant that the assistant public defender was willing to represent defendant. Defendant responded, "He is not ready for trial." The judge acknowledged that the public defender was not ready to proceed, but explained that counsel had advised the court that in his judgment he needed time to prepare defendant's case. The judge then asked defendant directly if he wanted to represent himself, and defendant did not equivocate, but said "yes."

The judge described what an appointed attorney would do before and during trial on defendant's behalf. The judge also told defendant that he had the right to choose and hire his own lawyer or, if he was indigent, to have the court appoint a lawyer for him.

At the completion of his admonishments, the judge asked defendant if he understood, and defendant said "yes." The judge inquired if defendant still wished to give up his right to counsel and again defendant responded "yes." The court appointed the assistant public defender present in the courtroom as standby counsel and advised ...

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