Appeal from the Circuit Court of Cook County 04 CR 17327 Honorable James Michael Obbish, Judge Presiding.
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Garcia and Justice R.E. Gordon concurred in the judgment and opinion.
Following a May 2007 jury trial, defendant Damen Toy, who appeared pro se at trial, was convicted of two counts of aggravated criminal sexual assault with a firearm and two counts of attempted armed robbery. Defendant was subsequently sentenced to a 45-year term for one count of aggravated criminal sexual assault and a consecutive term of 30 years for the second count of aggravated criminal sexual assault, as well as two concurrent terms of 10 years for the two counts of attempted armed robbery, for an aggregate term of 75 years' imprisonment.
Defendant appeals, arguing that: (1) his waiver of counsel was not valid because the trial court did not give him oral admonishments about the potential range of sentences; (2) his conviction for attempted armed robbery should be reduced to simple robbery because the State failed to prove that he was armed with a "dangerous weapon"; (3) the State failed to prove that defendant possessed a "firearm" within the meaning of the aggravated criminal sexual assault statute (720 ILCS 5/12-14(a)(8) (West 2004)); and (4) defendant was denied the right to a fair sentencing hearing and the right to counsel because the trial court refused to appoint the public defender at the sentencing stage of the proceedings.
In July 2004, defendant was charged with the aggravated criminal sexual assault of B.H. and the attempted armed robbery of B.H. and Paul Watkins-Lash. In August 2004, the public defender was appointed to represent defendant in this case and in other separate pending cases.
On October 25, 2005, defendant's attorney informed the trial court that defendant wished to represent himself. The trial court noted that defendant had "four cases before the Court, three of which are Class X felonies, two of them are aggravated criminal sexual assault allegations with numerous counts, armed robbery, attempted armed robbery, burglary, another separate and distinct armed robbery with an aggravated unlawful restraint." The court then asked defendant if he understood all the charges pending before the court. The trial court then warned defendant about his decision to represent himself as follows.
"You have a constitutional right to represent yourself.
Before I admonish you as I'm required to do under Illinois Supreme Court rules, I also find it incumbent upon myself to explain to you that if you do decide to represent yourself, you will be required to follow all the rules and procedures that every lawyer who steps into this courtroom must follow. I will not have the opportunity to teach you the law nor explain to you the procedures which also encompass the rules of evidence.
And having said that, it's clear to me that you will be at a distinct disadvantage; so I really wonder out loud why in the world you would want to represent yourself against trained prosecutors who are probably salivating for the opportunity to try the case and get someone who does not know the rules of evidence or courtroom proceeding. They will have a distinct advantage.
The law does provide and our Constitution does provide you the opportunity to represent yourself. That alone doesn't mean that that's an intelligent decision."
Defendant stated that he was not getting the counsel that he "deserve[d]." Defendant indicated that he had been in jail for 17 months and his attorney did not have a defense for him while the State was "putting a lot of effort in the case." Defendant's attorney then noted that defendant had new cases that have arisen. In response, defendant said, "I don't understand why Mr. Thomas is speaking before you. He no longer represents me." The court informed defendant that it would have its clerk make copies of all the charges and the minimum and maximum possible sentences and give defendant the opportunity to read them. The court again advised defendant about the risk of representing himself at trial.
At the next status hearing on October 31, 2005, the trial court asked defendant if he still wished to represent himself and defendant responded that he did. The trial court informed defendant that it was going to give him a copy of four separate indictments and "a typewritten copy of all the possible sentences, each count on each separate indictment, and how they may or may not be consecutive, not only to each other within each separate indictment, but how the sentences could be consecutive to each other, that the separate indictment -- separate cases could be consecutive to each other. There's a lot of different possible sentences."
Defendant continued to assert that he "can't get a lawyer to help defend my case." The trial court continued to warn defendant about representing himself.
"The reason that -- the reason why we are giving you all of this is because you want to represent yourself, and that is the reason why you have to receive all the information, and, yes, it is a lot of information to read and to comprehend. That's why I am putting it in writing for you so that you could read it, examine it, and then I will address you in open court and explain to you all the possible penalties and sentences on the indictment on the next short court date."
The court told defendant to review the indictments and sentences and speak with his attorney before making a final decision.
On November 7, 2005, defendant informed the trial court that he did not want to represent himself. Later, on January 4, 2006, defendant told the trial court he was not happy with his attorney because his attorney had not been to meet with him in jail. Defendant's attorney stated that defendant asked him to ask the prosecutor about an offer for a plea and the prosecutor gave him that offer that day. The trial court explained to defendant his attorney just stated in court that he just received the information. Defendant continued to complain that his attorney had not visited him, despite the trial court's repeated discussion that his attorney did not have the necessary information from the State. The court asked defendant if he wanted to represent himself and defendant said no, he did not. At the next status hearing on January 26, 2006, defendant's attorney informed the trial court that he met with defendant for "about one hundred minutes" and needed to talk to defendant again.
On February 28, 2006, defendant's attorney informed the trial court that defendant asked him to withdraw from defendant's case and for defendant to represent himself. The trial court asked defendant if this was "accurate" and defendant responded in the affirmative. The court checked that defendant had been provided a written explanation of all the charges and sentences and defendant confirmed that he had received it. The prosecutor stated that the possible sentences were "58 years minimum, 202 years maximum" due to consecutive counts and charges. Defendant's attorney also noted that defendant received an offer of 40 years, but he declined the offer. The trial court again told defendant he had the right to a lawyer provided free of charge from the state and asked if defendant wished to terminate that representation and represent himself. Defendant answered, "Yes, I do." The court then admonished defendant that he would be at a disadvantage because he is not trained in the law and that the court cannot teach defendant about the rules of evidence or act as his lawyer. The court told defendant that he would be treated like the other lawyers and would be presumed to know procedural and substantive rules. After this admonishment, the trial court asked defendant what his decision was and defendant replied, "Your Honor, I choose to represent myself."
The State then informed the court that it was electing to prosecute defendant on case number 05 CR 16845, an armed robbery charge. That trial occurred in September 2006, and the record indicates that it resulted in a mistrial without prejudice. In September 2006, the State then elected to prosecute defendant under the instant case. The prosecutor asked defendant if he still intended to represent himself, and defendant answered, "Yes, I do."
At the next status hearing on October 12, 2006, the prosecutor indicated on the record that it was filing "an official notice of the charges and the punishments and possible penalties that can be carried upon if there is a conviction based on any of the charges as they currently stand." The trial court stated that it was a two-page document and defendant would be provided a copy. The court told defendant to "please make sure your read that and review that. If you don't understand anything that's contained in the explanation of all the possible sentences that can result from a conviction of any one of those counts, on the next court date make notes and ask questions."
At the next court date on November 14, 2006, the case appeared before a new trial judge, who continued on the case and presided over defendant's trial. Defendant presented motions to the court, but did not ask any questions regarding the document he received at the previous hearing concerning the charges and possible sentences. Defendant continued to file numerous pretrial motions before the court. In March 2007, defendant filed a motion seeking the assistance of counsel to help with the cross-examination of one witness. The following colloquy took place.
"THE COURT: If you no longer want to be representing yourself, you are going to have appointed counsel. You need to tell me that. You can't of ask [sic] for a lawyer to come in and just for a little bit of a piecemeal part of the case. That's not going to happen. You've gone through an extensive amount of questioning by Judge Simmons assisting that you were capable and wanted to represent yourself. You can't have just a little bit of a lawyer. You either have a lawyer who represents you or represent yourself. That's your choice.
THE DEFENDANT: I choose to represent myself, Your Honor."
Defendant's case then proceeded to trial with defendant appearing pro se. The following evidence was presented at the May 2007 jury trial.
In the early morning hours of June 27, 2004, B.H. and Paul Watkins-Lash were sitting on the porch of B.H.'s house, located at 2415 W. Pensacola in Chicago. Watkins-Lash went to a nearby gas station to buy cigarettes and walked back to B.H.'s house. B.H. noticed a man walking behind Watkins-Lash. Watkins-Lash rejoined B.H. on the porch. The man walked by the house and then approached them. He asked for a cigarette, which Watkins-Lash gave him along with a lighter. The man left, but returned a short time later. Watkins-Lash stated that the man was "holding a gun cupped in his jacket, like the barrel of the gun. He had the gun out." When asked if there was any doubt in his mind that what the man had was a gun, Watkins-Lash stated, "That was a gun." He said the gun was in front of his face, but pointed down toward the ground. B.H. also testified that the man had a gun. The man then demanded that they give him their money and threatened to kill Watkins-Lash. When they told the man that they did not have any money, he searched through their pockets.
The man then told Watkins-Lash to stay on the porch or he would shoot Watkins-Lash. He took B.H. by her wrist and took her into the gangway between her house and the house next door. He turned her to face the house with her arms up. He told her to remove her pants, but then removed them himself. B.H. testified that the man's penis entered her vagina and his penis also touched her anus, but did not enter it. During the sexual assault, B.H. felt something in the back of her head. She assumed that it was the gun because the man was threatening to kill her.
Eventually, Watkins-Lash left the porch and came around to the gangway. When he saw that B.H. was being sexually assaulted, he yelled at the man. The man stopped and turned to run away. B.H. tried to tackle the man, but he smacked her and ran away. They went into B.H.'s house and woke her parents. They called the police and B.H. was taken to Swedish Covenant Hospital. A sexual assault kit was performed on B.H. B.H. identified defendant in court as the man who sexually assaulted her.
After being told about the sexual assault, B.H.'s father went outside with a flashlight to look for the assailant. He recovered a key chain with a key from his front yard and turned it over to the police.
Christopher Palacios, a neighbor of B.H., heard a scuffle outside and looked out of his window. He saw a white person arguing with a black person. He said the black person ran away in a northwest direction. Palacios never identified defendant in a lineup or photo array, but stated on cross-examination that defendant was the man he saw.
Officer Arcenio Cruz testified that B.H.'s description of her assailant reminded him of a man with whom he had previous contact. At the police station, he pulled a contact card for defendant. Detective Stephen Stratton took the contact card and showed it to B.H. in a photo array with five other photographs. B.H. identified defendant in the photo array. Detective Thomas Ward went to defendant's known address, 2619 W. Agitate, and placed defendant under arrest. Later, Detective Ward tried the key recovered by B.H.'s father on the locks at defendant's residence and testified that he tried the key on the front door, vestibule door and the rear door, and "it all worked." Defendant was put into a lineup. B.H. identified defendant in the lineup, but Watkins-Lash did not make an identification.
The police searched the area between the scene of the crime and defendant's address. They found a Cubs hat and Bulls breakaway pants in a residential garbage can and a blue windbreaker in a dumpster behind a grocery store. These clothes matched a description given to the police by B.H. DNA was recovered from the Cubs hat and it matched defendant's DNA with a reasonable degree of scientific certainty. A cigarette recovered near the crime scene was also tested, but did not match defendant's DNA. The evidence also showed that no semen was present in B.H.'s sexual assault kit.
Defendant testified on his own behalf. He admitted that the recovered clothes belonged to him, but stated that the clothes were stolen from his gym bag at Shields Park two days before the crime. Defendant attempted to present an alibi defense that he was at home at the time of the crime, but the trial judge told him that he could not put on an alibi defense since he did not notify the State prior to trial.
Defendant presented one witness, Ernest Jones. Jones was defendant's roommate for six years. He stated that he never knew defendant to have a knife, gun or any weapon. He said the police searched their apartment and did not recover a handgun.
In rebuttal, the State presented evidence of defendant's prior conviction for forgery. Following deliberations, the jury found defendant guilty of two counts of aggravated criminal sexual assault, one for contact between defendant's penis and B.H.'s vagina and the other for contact between defendant's penis and B.H.'s anus, and two counts of attempted armed robbery for B.H. and Watkins-Lash.
In June 2007, defendant filed a pro se motion for a new trial. In July 2007, defendant filed a motion for appointment of counsel for sentencing. Defendant indicated that he only wished to have counsel represent him for sentencing and to remain pro se on his remaining pending cases. On August 30, 2007, defendant's newly appointed attorney attempted to file a motion for a new trial, but defendant objected. Defendant stated in court that he asked his attorney not to file the motion because his attorney "has disregarded all the issues that I filed in my previous motion. He has disregarded every item I gave him. He is not complying at least giving me any consideration. His motion is incomplete and it misses a lot of issues that I did write for my motion for a new trial." Defendant then asked for the trial court to appoint different counsel.
The trial court responded that the request for different counsel would be denied. Defendant then stated that he "would like to relieve Mr. Thomas of all responsibility dealing with my case and ask the Court for a 30 day continuance so I can amend my previously filed motion." The trial court told defendant that if it allowed defendant's attorney to withdraw, it would not grant defendant another continuance. The court told defendant that he could argue his motion for a new trial, but defendant said he was not ready. The court admonished defendant about his right to an attorney. The following colloquy then occurred.
"THE DEFENDANT: Your Honor, this guy sucks. He is a lousy attorney. He is lousy. He does not have my best interest in heart. And if the court forces me to have him deal with my motion, the court will deny it. He ...