Appeal from the Circuit Court of Cook County. No. 06 CR 19385 Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice Cahill concurred in the judgment and opinion.
Following a jury trial in which he represented himself pro se, defendant Maurice Ware was convicted of attempted first degree murder and aggravated battery. Defendant's oral motion for a new trial was denied. Defendant was sentenced to 25 years' imprisonment. Defendant appeals, arguing (1) that the trial court denied defendant his constitutional right to counsel by failing to substantially comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) prior to allowing defendant to proceed to trial pro se; (2) that the trial court erred in denying defendant standby counsel; and (3) that the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during jury selection by not properly inquiring into the four Zehr factors (People v. Zehr, 103 Ill. 2d 472, 477 (1984)). We affirm.
On August 10, 2006, defendant was arrested after an altercation between defendant and Quintin Johnson, his neighbor, during which Johnson was stabbed in the back of the head. Defendant was indicted on charges of attempted first degree murder (720 ILCS 5/8-4(a), 9-1 (West 2006)) and aggravated battery (720 ILCS 5/12-4(a) (West 2006)).
Defendant was first assigned to the courtroom of Judge Kenneth Wadas, where, on September 20, 2006, Assistant Public Defender (APD) Richard Kruss was appointed to represent defendant. On the same day, defendant requested a different attorney. Defendant told the court that he was "really not comfortable with" APD Kruss, and that APD Kruss "scared [him] literally to death." At defendant's request, APD Kruss filed a petition for substitution of judge, which was granted.
On September 21, 2006, defendant's case was reassigned to Judge Marcus R. Salone, and APD Lakshmi Jha was appointed to represent defendant on that date. On October 5, 2006, APD Jha obtained an order from the trial court allowing defendant access to the law library at the county jail where he was being held. On January 9, 2007, APD Jha obtained a number of orders from the trial court, including orders allowing defendant phone calls to APD Jha twice a week and access to the law library twice a week.
On February 23, 2007, defendant told the trial court that he wished to represent himself. The court admonished defendant that he could be sentenced up to 30 years for attempted first degree murder and that he would be held to the same standard as a licensed attorney; the court "strongly discourage[d]" defendant from representing himself. Defendant responded that the only way he could be discouraged from representing himself was if he was able to have all of the same documents that APD Jha had; the court noted that there were some documents that could not be provided to defendant. The trial court also tested defendant regarding several legal concepts; defendant said that the court was "making [him] feel like a fool," but the court indicated that its purpose was to demonstrate defendant's lack of knowledge. It noted that "[t]here's a whole lot of innocent folks serving a lot of time in the joint because they felt they were the only ones who could represent themselves." However, defendant persisted in representing himself and the court granted APD Jha's motion to withdraw from the case during the February 23, 2007, court date.
Defendant made an oral demand for trial. APD Jha tendered all of the discovery that she had received, with appropriate redactions, to defendant. The State pointed out that there were several items of open discovery remaining, and that if defendant demanded trial, he would not have complete discovery. The case was continued for one week to obtain the missing discovery.
On March 2, 2007, defendant told the court that he had lost his legal papers because of "some extreme things going on" at the jail and requested an "assistant to counsel." The trial court told defendant that it would not appoint him an attorney as an assistant, but could appoint an attorney if he desired an attorney to represent him at trial. Defendant said that "all this here is a charade," and that "[a]ll this stuff is being manufactured against" him. He said that he needed someone "who can come and see me, stay in constant communication with me and let me know the progress of the case"; he clarified that he was seeking an attorney who would communicate with him "to the point where they know me as an individual, not as a case file."
Defendant further stated that "[t]his is a game these people are playing with me in here. *** These people are unfeeling. These people don't have no feelings. *** These people don't care nothing about the public, they only care about their own self-seeking self-interest and I know it and you know it." The trial court asked defendant whether he wanted a lawyer, and defendant said that he did. APD Jha advised the court that if she was being reappointed, she was not prepared to proceed to trial because of the missing discovery. APD Jha was reappointed to represent defendant and the case was continued.
On April 2, 2007, APD Jha acknowledged receipt of additional discovery and requested the court enter an order for a forensic clinical examination (BCX) to determine whether defendant was fit to stand trial. Defendant was not pleased with that request and told the court that he did not want APD Jha to represent him, stating that he did not feel as though she had his best interests at heart. The trial court informed defendant that it would not be able to assign another APD, and defendant responded that he would then proceed pro se. The trial court then allowed APD Jha to withdraw and admonished defendant of the minimum and maximum sentences for the crimes with which he had been charged and admonished that if defendant represented himself, "[he] will have to comply with the rules of evidence and conduct [him]self in a manner in which those who have been licensed to practice conduct themselves."
The trial court advised defendant that it had received a phone call from the law librarian, indicating that defendant had made threats and requesting that his access to the law library be reduced to once a week. Defendant told the court that he had composed a letter to APD Jha telling her of his unhappiness with her representation, and he told the court that there was a pattern of people preventing him from accessing the law library. The State then requested a BCX based on defendant's conduct in court.
On April 9, 2007, defendant, acting as his own attorney, requested investigators and legal assistance for "motions and advice and stuff like that"; defendant emphasized that he was not asking that a public defender be appointed to represent him. The trial court denied his request, saying that the only investigator available was through the public defender's office. The trial court asked defendant whether his issue was with APD Jha or with the public defender's office as a whole. Defendant responded that he only had problems with APD Jha. The trial court advised defendant that if he was to reappoint the public defender, defendant would be assigned APD Jha again, and suggested that defendant speak to Amy Campanelli, a supervisor at the public defender's office, to determine if she could assign his case to a different APD.
On April 17, 2007, defendant accepted receipt of additional discovery tendered by the State, asking whether they were "under Rule 412 (C), (D), and (E)";*fn1 the State did not respond to defendant's question. Defendant requested a continuance so that he could review the documents and obtain counsel. On May 30, 3007, defendant told the court that he needed assistance of counsel, and when the court asked if an assistant public defender should be appointed, defendant responded: "Look like I'm forced to have to go along with that because I have no resources in my position right now. In the position I'm in right now, I don't have the resources to do the things I need to do." Defendant also said that if APD Jha was assigned as his attorney, "it would be probably under conditions," and stated that he was most concerned about disclosure and communication, quoting several rules of professional conduct. Defendant appeared again the next day, and advised that he would accept APD Jha "under strict conditions," including that she make no stipulations with the State without defendant's knowledge and consent, that she visit defendant at the jail between court dates, and that she "absolutely and imperatively defend and protect [defendant's] rights." APD Jha was reappointed on May 31, 2007.
On July 3, 2007, defendant again complained about APD Jha and about his treatment in jail. He said that APD Jha was "totally numb to what's going on to me. She ain't trying to hear nothing I'm saying. *** Every time she comes on board, I get treated real bogusly over there." Defendant also claimed that the State had exculpatory evidence that was being hidden from him. The trial court continued the case.
On July 20, 2007, APD Jha's supervisor, Amy Campanelli, requested a BCX on APD Jha's behalf to determine defendant's fitness to stand trial. Defendant was "strongly opposed" to the BCX. When the trial court asked him whether he wished to represent himself, defendant stated that he was "being forced and bullied into representing myself and I can't do that. *** I don't have the resources to represent myself. And because of that I'm being forced to take *** an attorney from the Public Defender's Office. *** Y'all go ahead and do what y'all wanna do for me, but the Public Defender's Office is not representing me."
Defendant was evaluated by a forensic psychiatrist on July 31, 2007, and the psychiatrist opined that defendant was fit to stand trial; in his report, the psychiatrist noted that defendant's evaluation "does not reveal the presence of a psychotic disorder, a mood disorder, a cognitive disorder, or other mental disorder that interferes with his fitness to stand trial," and opined that defendant's "lack of cooperation with his current public defender is likely volitional and due to his personality disorder." The forensic psychiatrist did not specify what "personality disorder" defendant had.
On September 18, 2007, the trial court again allowed the withdrawal of APD Jha. Defendant stated that APD Jha was "way too overburdened with other things to represent [him] sufficiently," but he wanted it made clear that he was "not going pro se because I want to represent myself because I am really unable to do that without assistance." Defendant also stated that he felt that he was unable to secure a fair trial in the courtroom because of his "reoccurring conflicts of interest" with APD Jha. Judge Salone then recused himself and transferred the case to the presiding judge for reassignment. The case was assigned to Judge Stanley Sacks.
On October 29, 2007, defendant appeared before Judge Stanley Sacks
and was represented by APD Daniel Gallagher.*fn2
Defendant advised the court that Gallagher was "fired" and that
defendant would be "going pro se right now." The court confirmed that
defendant had been pro se at one point when the case was before Judge
Salone and questioned defendant regarding his age and educational
background; defendant answered that he was turning 42
and that he had not finished eighth grade, although he
did receive a GED. Defendant told the court that Gallagher was "very
aggressive," "seems like he's trying to provoke me into anger all the
time," and did not have a "peachy disposition." The trial court asked
the State about defendant's criminal history, and admonished defendant
about (1) the nature of the charges against him, (2) the minimum and
maximum sentences for each charge, and (3) the right to have an
attorney and, if necessary, the court would appoint an attorney for
him. Defendant responded to the trial court's questioning by stating
that he understood each of the court's statements. He also repeatedly
stated that he was being "forced to go pro se," but the trial court
found that there was no basis in the record for that claim.
The trial court further advised defendant that if he chose to proceed pro se, there was more to presenting a defense than "merely telling your story." The trial court noted that presenting a defense required adherence to legal rules, that the State would be represented by an experienced attorney, and that a defendant proceeding pro se could give the State an advantage should he fail to object when appropriate or should he make a poor tactical decisions because he is unaware of the rules. The trial court also admonished defendant that if he proceeded pro se, he would not be able to challenge the competency of his representation on appeal and that defendant would not receive any special treatment as a result of his election to proceed pro se. The following colloquy then took place:
"THE COURT: [T]he court, meaning myself, will not appoint standby counsel to assist you during the course of trial. Do you understand that?
THE COURT: In other words, Mr. Ware, if you decide to go pro se, you go pro se. There will not be an attorney sitting there to advise you. There will not be a combination of having a lawyer and going pro se at the same time. If you want to go pro se, which is your right to do that, there will not be a lawyer to assist you, do you understand that?
After the trial court's admonishments, defendant questioned how he could be confident that his counsel was competent if he was unable to communicate with his attorney. He asserted that the public defenders were not advocates but were "adversary to the defendants." The court pointed out that APD Gallagher had only been defendant's APD for a month and that defendant should give APD Gallagher more time. The court also stated that APD Gallagher was a "fine lawyer" and that the trial court would not assign a different attorney. The court asked defendant again if he wished to proceed pro se, and defendant responded, "No." After defendant had spoken with APD Gallagher during a break in the proceedings, defendant told the court:
"Mr. Gallagher is adversary to me. He puts on one show here in the courtroom and another back in the back. All I'm asking Judge Sacks is that another attorney be appointed to me other than him. He is not going to work. I know he does not have my best interest at heart, sir. I'm not asking to go pro se because I can't handle this, you know, very well. That I cannot. But at the same time, I am not going to be stuck with someone who I know for a fact who will handle my case in a very perfunctory way. I'm not going to go for that. I'm sorry, sir, if that upsets the court, then so be it.
He will never represent me."
On October 30, 2007, the trial court allowed APD Gallagher to withdraw and appointed APD Adrienne Davis to represent defendant. On November 20, 2007, defendant complained about APD Davis' visit to the jail. Defendant stated that APD Davis and APD Victor Erbring made a "very, very brief" visit, and APD Davis had "a fleeting lackadaisical perspective or demeanor" concerning defendant. Defendant said that he was uncomfortable with APD Davis and APD Erbring, that they scared him, and that APD Davis would not file a motion that defendant wished to file. The court told defendant, "You can't get along with anybody at all." Defendant stated that the attorneys who had been appointed were "not concerned about protecting [his] constitutionally guaranteed right." Defendant asked if he would be able to have counsel other than the public defender's office. The trial court responded, "[y]ou are not entitled to it. You are entitled to a lawyer, if you can't afford one. You are not entitled to pick who the lawyer would be." Defendant stated that he felt he was being forced into a corner. Defendant accused the court of being biased against him; the court denied any bias or prejudice toward defendant. Defendant then asked for additional time to hire an attorney, which the trial court granted.
On December 3, 2007, defendant requested another continuance, stating that his mail was being intercepted at the jail so he was unable to contact any attorneys. On January 11, 2008, defendant had still not retained counsel and received another continuance. Defendant also read a statement to the court:
"Because I'm unable to procure an attorney, for reasons way beyond my control, which at present places me in a Hobson's choice, to take appointed counsel or not to take appointed counsel. That's the question.
My good instincts are telling me not to and that's only because of prior experiences with Richard Kruss, Lakshmi Jha, Victor Erbring, Daniel Gallagher and Adrienne Davis. All of which have been anything but advocates for my cause. For example, all of them have vehemently denied and deprived me of their effective assistance of counsel by obscuring facts, refusing to file relevant motions, trying to force me to go with a failed defense in which their predecessor came up with without thoroughly investigating my charging instruments. Vaguely answering valid questions and concerns and totally failing to adhere to Article Eight Illinois Rules of Professional Conduct, which I sincerely doubt they even know, let alone practice.
In addition to that, they totally refuse to show me indepth [sic] and volume the full extent of my discovery as though they were, they are deliberately hiding very pertinent information, exculpatory evidence. That is critically vital in establishing my innocence.
So to actually have the public defender office represent me in this critical matter would be an extreme manifest constitutional error and obstruction of authentic true justice."
Defendant continued: "no, I do not want to represent myself. But [I] will not be forced or made to take assistance of counsel who don't understand or refuse to acknowledge the true definition of assistance of counsel." He also indicated that he was challenging the constitutionality and validity of his indictment, bail, and illegal detention. The trial court told defendant that he could have as much time as he needed to obtain counsel, and continued the case.
On January 25, 2008, defendant informed the court that he did not have an attorney, that APD Davis was not going to be representing him, and that he would be proceeding pro se. The court inquired into defendant's age, educational background, and criminal history. The court then admonished defendant about (1) the nature of the charges against him, (2) the minimum and maximum sentences for each charge, and (3) defendant's right to counsel, or to have counsel appointed to him if necessary. Defendant responded that he understood all of the court's statements, but regarding his right to an attorney, said that his problems with the public defender's office was affecting his decision to proceed pro se. The court said that defendant's other options were to hire an attorney or proceed pro se; the trial court noted that APD Davis was a "very fine lawyer," as was APD Erbring. Defendant responded that he was "damned if I do and then damned if I don't. What kind of choice is that up under the Constitution?"
Defendant accused the court of having a "hidden agenda." He claimed he was not comfortable with the court because "[y]ou don't have my best interest at heart as a fact finder. You're too busy trying to cover up these people here that are bogus with malfeasance and legal malpractice." Defendant also called the court "a poor example of a fact-finder." The court asked whether defendant understood his right to have a lawyer appointed, and defendant asked the court: "I'm having a problem with the Public Defender's Office, and I can't afford a lawyer. And I don't really want to go pro se, but I'm being forced to go pro se."
The court admonished defendant that presenting a defense was more than simply telling a story, that he would need to comply with technical rules, that an experienced attorney would be representing the State, that defendant might be at a disadvantage with his lack of knowledge of legal matters, that he would not receive any special treatment, and that he would not be able to appeal based on the competency of his counsel. When the court told defendant that once defendant was allowed to proceed pro se, he would not be able to change his mind during the course of the trial, defendant responded:
"DEFENDANT: No, I don't understand that. You mean to tell me that, you know, that I would not have an opportunity to have any assistance of legal counsel if I'm in terrible need of it, right? That's what you're telling me?
THE COURT: In the event the court accepts your decision to represent yourself, you are not given a chance to change your mind during the course of the trial. Once the trial starts, you're pro se and that's the way it remains.
DEFENDANT: Once the trial starts.
THE COURT: Do you understand that?
THE COURT: That the court -- if the court in its discretion is not going to appoint stand-by counsel, which I will not, that I informed you that there would be no stand-by counsel to assist you during the course of the trial.
DEFENDANT: I don't understand why.
THE COURT: Did you understand what I said? DEFENDANT: I understand what you say, but I still don't understand why.
THE COURT: Because if a man wants to go pro se, he goes pro se. If he wants a lawyer, he has a lawyer, not a combination of both.
If you want a lawyer, you can get one or stay with Ms. Davis; or if you want to go pro se, you can go pro se. I will not appoint the lawyer to stand by and act as stand-by counsel for you.
Defendant then decided to proceed pro se, and the trial court allowed APD Davis to withdraw on January 25, 2008. Defendant accepted the discovery tendered to him by the State, and asked the State whether it was in compliance with Supreme Court Rule 412; the State said that it was. The case was then continued so that defendant could review the discovery.
On February 15, 2008, defendant again appeared before the court. The trial court asked defendant if he wanted APD Davis as his attorney, and defendant said that he did, subject to some "reasonably stringent conditions." Defendant then read 11 "conditions," including (1) that APD Davis not pursue the defense that APD Jha had pursued; (2) that APD Davis comply with article 8 of the Illinois Rules of Professional Conduct and realize that her duty and loyalty was to defendant and not to "her cronies and quid pro quo patronage system, hidden rules, quid pro quo buddies"; (3) that APD Davis not enter into any stipulations with the State without defendant's knowledge; (4) that APD Davis file several motions on defendant's behalf and obtain transcripts of defendant's court appearances; (5) that APD Davis arrange for an expert to examine the State's evidence; (6) that APD Davis not engage in any "fleeting attorney visits especially with Victor Erbring, Daniel Gallagher, Richard Kruss, Lakshmi Jha nor Amy Campanelli, period"; and (7) that APD Davis "assure me *** that she will without a doubt protect my rights as a citizen of the United States and State of Illinois." The trial court stated that it would not appoint APD Davis and impose conditions on her representation. Defendant responded:
"The last time I was here I was in your courtroom, I made mention of my extreme discomfort in you [p]residing over my case.
Your condescending decorum, your odious expressions, your dark and very offensive sarcasm and your complete, apathetic inability to comprehend the grievous hardships that I am being, one, timely subjected to -- to is quite alarming. And the only thing that supersedes your poorly restrained and transparent bias and prejudice is your primitive apathy and deliberate willingness to help selective Gestapo enforcement and selective final prosecution that is being perpetrated against me to obstruct, abridge, deprive and circumvent my Constitutional guaranteed rights as a citizen of the United States, State of Illinois, which is a clear violation of my 14th Amendment, especially when your public pretenders and persecutors' motives are primarily predicated on cronyism, quid pro quo, which is a sort of a patronage system and vindictive, maligned, libelous slander especially designed to discredit and black list me simply because I am very adamant and vocal about exercising my protected rights under the law."
The court repeated that he would reappoint APD Davis, but not under conditions. Defendant then said that he did not believe that the court had his best interests at heart and asked for another judge. The court told defendant that if he wished to file a motion for substitution of judge, he could do so in writing, and read the statutory requirements to defendant. The State asked for a BCX, stating that after listening to defendant's statements, there was "a bona fide doubt about the defendant's mental health." Defendant asked that an attorney be appointed on the condition that no BCX be performed. The court repeated that it would not impose any conditions on appointed counsel. Defendant asked the court to reappoint APD Davis on February 15, 2008.
After a break in the proceedings on the same date, APD Davis informed the court what had occurred during the break: "I informed Mr. Ware that based on what occurred in court before, that I would be asking for a Forensic Clinical Services evaluation. Mr. Ware told me I was fired." Defendant responded, "Absolutely." Defendant explained that he was being forced to do things he did not want to do, and the court stated that it would "take that to mean" that defendant was proceeding pro se; the court denied the State's request for a BCX, saying that "[o]ne of the issues is whether he understands the nature of the charges and to cooperate with an attorney in his own defense. Since he is going pro se, that becomes an issue, which is not before me at the time, whether he has a lawyer in his own defense. He is his own defense. So I am not going to order a fitness examination at this point." Defendant asked whether it would be possible for him to have an appointed attorney other than APD Davis or APD Gallagher, and the court said it was not. Defendant responded that the court was forcing him to be represented by public defenders who were "obviously adverse" to him. Defendant stated that he was being forced to proceed pro se even though he wanted legal representation, stating he simply wanted "good legal representation."
The case was continued several times for the defendant to obtain legal representation. On March 14, 2008, the State asked the judge to enter an order for BCX to determine whether defendant was fit to stand trial. Defendant was evaluated on March 25, 2008, by the same forensic psychiatrist that had evaluated defendant in 2007, and once again the psychiatrist reported that defendant was "presently fit to stand trial." Again, the psychiatrist opined that defendant's "lack of cooperation with his current public defender is likely volitional and due to his personality disorder." The forensic psychiatrist did not explain what defendant's "personality disorder" was.
On April 15, 2008, defendant requested a copy of his BCX, which he received. Defendant requested more time to find counsel, even asking the people in the courtroom if there was an attorney present that he could hire. Defendant also complained about APD Gallagher's conduct, saying that he was "constantly harassing" defendant and causing "commotion" between defendant and the other detainees. Defendant stated that the public defenders who had been appointed to represent him had not protected his rights but had violated them, calling the public defender a "public pretender." Defendant once again told the court that it was not acting in defendant's best interest, calling the ...