Appeal from Circuit Court of McLean County No. 08CF1167 Honorable Charles G. Reynard, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Steigmann concurred in the judgment and opinion.
A jury found defendant, Tyrese Fisher, guilty of a criminal drug conspiracy (720 ILCS 570/405.1 (West 2008)), and the trial court sentenced him to imprisonment for 14 years. Defendant appeals on several grounds, only one of which is necessary for us to consider. We agree with defendant's argument that the trial court denied him his constitutional right to self-representation and thereby committed a structural error.
If a defendant makes a timely and unequivocal choice to proceed pro se in a criminal case and if, after admonitions pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), the trial court finds the choice to be knowing and intelligent, the court must honor the choice, regardless of how unwise the choice might be. The court in this case refused to allow defendant to represent himself, because the court perceived that he lacked sufficient legal expertise to do so. The choice, however, should have been defendant's, not the court's. Therefore, we reverse the trial court's judgment and remand this case for a new trial.
On October 14, 2008, a grand jury returned an indictment charging defendant with four counts of unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2), (d)(i) (West 2008)), counts which the State nol-prossed. On February 11, 2009, a grand jury indicted defendant on a fifth count, which charged him with a criminal drug conspiracy (720 ILCS 570/405.1 (West 2008)). On October 31, 2008, the trial court appointed the public defender to represent him.
On December 5, 2008, defendant filed a pro se motion to dismiss the public defender and to allow him to represent himself, because, as the motion put it, "[t]he defendants [sic] attorney [was] not appropriately handling the case in the way the defendant [was] pleased." More specifically, the motion made two complaints: (1) "[t]he defendants [sic] attorney has not had any contact including mail, phone or personal visits to discuss changes or updates to the defendants [sic] case," and (2) "[t]he defendant would like to file his own motion for dismissall [sic] based on written statements stating that he is not responsible of the charges mentioned in the indictment." The motion concluded: "Given all above, the defendants [sic] attorney should be dismissed and have the defendant represent himself." In a "whereof" clause, the motion requested the following relief: "Defendant's attorney be dismissed and order defendant to appear in front of this court as pro se ad hoc."
On December 16, 2008, the trial court held a hearing on defendant's motion to discharge the assistant public defender and to represent himself. In the hearing, referring to defendant's statement that his attorney was "not appropriately handling the case in the way the defendant [was] pleased," the court asked defendant: "So tell me what it is that would please you." Defendant replied that his attorney had failed to comply with his request to file a motion for dismissal on the ground that Jerome Smith, rather than he, had committed the alleged offenses. Defendant told the court:
"I had mailed my attorney a written statement from Jerome Smith that he, basically, said what was done on that date of the events that took place, and I wanted her to put in a motion for dismissal because the surveillance from the tapes and everything shows Jerome Smith doin' these crimes. The CS [(confidential source)] that the State has shows him sayin' that Jerome Smith done these crimes, and I was telling her that I need a motion for dismissal, man, because I'm not the one who done these crimes. I'm being charged for a delivery that someone else has done. They doin' the same charges on my and that person."
Thus, defendant was under the impression that it was impossible for both him and Smith to incur criminal liability for the same deliveries of a controlled substance--deliveries which Smith alone physically accomplished. Even though defendant had requested his court-appointed attorney to file a motion for dismissal on the ground that Smith, rather than he, was the culprit, his attorney had failed to do so.
That was only part of the reason why defendant distrusted his attorney. He also suspected that she would do to him now what he perceived she had done to him in a previous case in which she was appointed to represent him: concentrate on convincing him to enter a negotiated plea of guilty instead of preparing a vigorous defense for trial. He felt that he was "putting [his] life in the hands of someone" who wanted to make a deal with the State in lieu of making a good-faith effort to defend him, using what he regarded as this dispositive evidence in his favor.
The trial court asked the prosecutor if he had "any perspective about the Defendant's observations concerning the evidence in this case and what it purports to show." The prosecutor replied that this was "an accountability case" and that "the co-Defendant" had identified defendant as his supplier and had agreed to testify against him. As for the affidavit that defendant claimed was written by Smith, the prosecutor did not believe that Smith had written it, and he anticipated that Smith would deny writing it. Although the prosecutor thought the affidavit might be relevant for an attempted impeachment, the affidavit was not, in his opinion, "a magic wand that [made] the charges disappear."
Defendant insisted, however, that this was more than a written statement; it was a notarized affidavit. He told the court:
"THE DEFENDANT: Your Honor, at the same statement that he's saying that I have, it was notarized by the Notary Public here in--
THE COURT: Oh, my goodness, it was notarized!
THE COURT: No kidding! Oh, that makes all the difference. I'm sorry I'm being ...