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July 7, 1997


Appeal from the Circuit Court of Cook County. Honorable Dennis Porter, Judge Presiding.

Released for Publication August 21, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Following a jury trial, defendant, James Rand, was found guilty of stalking Michelle Fire (hereinafter Fire) and sentenced to three years' imprisonment. Defendant appeals, contending: (1) the trial court erred by denying his request to waive a jury trial; (2) the stalking statute is unconstitutional; (3) the jury instructions deprived him of his right to a unanimous verdict; (4) the trial court improperly failed to appoint separate counsel and hold an evidentiary hearing regarding the claim of ineffective assistance of counsel raised in his pro se motion for new trial; and (5) the trial court erred by failing to give Illinois Pattern Jury Instructions, Criminal, No. 24-25.06A (3d ed. 1992). We affirm.

At trial, Fire testified she is the owner of a predominantly gay men's bar located on North Sheridan Road. At approximately 6:30 p.m. on April 2, 1994, Fire was walking to the bar when defendant approached her near Glenwood and Olive. Fire had never seen defendant before.

Fire testified defendant began to walk alongside her and asked her where she was going. Fire responded only that she was going in a specific direction. Defendant continued to walk next to Fire, and he subsequently told her he had just gotten out of prison, where he had been serving time for gun charges. Defendant also told Fire he was a male prostitute and his father beat him. As Fire continued to walk rapidly toward her bar, she told defendant that these were strange things to talk about with someone he had just met.

Fire testified that defendant then told her his parole officer was a lesbian who was out to get him. Defendant also stated he was a martial arts expert. Around this time, Fire turned the corner at Foster and found herself on the inside of the sidewalk between defendant and the buildings there. Defendant proceeded to tell Fire that she was probably thinking he wanted to do "lewd and lascivious things" to her body. Fire responded that she was not thinking about anything, and defendant told her "more white women get raped by black men than by white men."

Fire testified she felt in immediate danger and told defendant to cross the street and get away from her. Fire waited until defendant crossed the street and was out of her line of sight before she proceeded to her bar. When Fire arrived at the bar, she called the police, but they would not take a report because she did not know defendant's identity. After talking to the police, Fire called her female staff members, described defendant for them and told them to be careful.

Fire testified that around 10 p.m. on April 2, she was standing in the doorway of the bar greeting customers when defendant approached her and told her he wanted to speak with her. Fire told defendant she did not want to talk to him and that she was going to call the police. Defendant responded by saying "You don't understand. You don't understand. You are just an angry lesbian. You are nothing but angry lesbians. I'm a good-looking straight white man and you don't want me in there. That's what I am." Defendant then paced up and down in front of the bar, made karate moves, and stated he was a criminal defense attorney and a dangerous person.

Fire testified defendant started to walk south on Sheridan Road towards Argyle. Fire called 911 and then she and her doorman, Michael Daugherty, followed defendant from a distance of 30 to 40 feet. A friend of Fire's drove up, and Fire and Michael entered the car. They proceeded to follow defendant into Andersonville. Defendant noticed them, "stormed the car" and started banging on the car.

Fire testified defendant proceeded down an alley, and Fire got out of the car, ran into a restaurant and asked the owner to call the police. Defendant then "stormed out" of a gangway and started screaming. Defendant subsequently disappeared in some bushes, and Fire returned to her bar.

Fire testified she saw defendant again in June, when he peered in the window of her bar and tried to make eye contact with her. On July 16, defendant again appeared at the bar and asked "Why won't you let me in? You are nothing but an angry lesbian. I'm a good-looking straight white man." Fire did not respond to defendant. James Murray, a bartender and doorman at the bar, testified defendant paced in front of the bar for about 10 minutes and then left. Fire testified defendant also appeared at the bar on August 4 and tried to engage her in the "usual" way. However, she refused to talk to him.

Officer John Anderson testified that on August 10, 1994, he received a report of a disturbance in the aldermanic office located at 5457 North Broadway. Officer Anderson went to the office, but the person causing the disturbance had left. Anderson left his pager number, and he was paged about five minutes later. Anderson returned to the office, where he saw defendant. Anderson arrested defendant and read him his Miranda rights. Defendant told Anderson he was aware of his rights because he was a criminal defense specialist. Defendant also said "this was a lesbian conspiracy orchestrated by Michelle Fire" and he said he was "going to get that lesbian [expletive]." Anderson contacted Fire, who later identified defendant.

Detective Susan Barrett testified that on September 22, 1994, she had a conversation with defendant in an interview room at Area Three police headquarters. Defendant said he first encountered Fire at Glenwood and Olive on April 2, 1994. Defendant said that Fire immediately told him he was a good-looking man, and he felt like she wanted him to ask her for a date. Fire then told him that she worked with rape victims, and defendant replied that a white woman was more likely to be raped by a black man than a black woman by a white man. Fire was offended by defendant's comment about rape, and they parted company.

Defendant told Barrett that he saw Fire later that night in front of her bar. Fire appeared to be angry with him, and her bouncer exhibited "similar-type behavior." Defendant believed he was in danger, so he told Fire and her bouncer that he was a martial arts expert.

Defendant told Barrett that Fire began screaming at him, and she was soon joined by two or three other employees of the bar who blocked his way on the sidewalk. Defendant began to walk away, and Fire and her bouncer followed him. They all ended up in a gangway and defendant felt cornered. Defendant then told them he was a Kung Fu master and they better think twice about ...

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