The opinion of the court was delivered by: Justice Theis
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Garman, and Karmeier concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justice Freeman.
¶ 1 Following a jury trial in the circuit court of Peoria County, defendant Dominick Eppinger was found guilty of attempted murder, aggravated battery with a firearm, two counts of armed robbery, and unlawful possession of a firearm by a felon, and was sentenced to 95 years' imprisonment. The appellate court reversed and remanded for a new trial. 2012 IL App (3d) 100577-U. The principal issue in this appeal is whether the trial court violated section 115-4.1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-4.1(a) (West 2010)) (sometimes referred to as the trial in absentia statute) when, following the refusal of defendant pro se to leave his holding cell and participate in his trial, the court conducted voir dire without first appointing counsel to represent defendant.
¶ 2 For the reasons discussed below, we hold that section 115-4.1(a) of the Code is inapplicable under the facts of this case, and thus the trial court did not violate the statute. Accordingly, we reverse the judgment of the appellate court.
¶ 4 On December 9, 2008, the Peoria County grand jury entered a multicount indictment against defendant in connection with an armed robbery earlier that month during which one of the victims was shot multiple times, sustaining permanent injuries. Defendant entered a plea of not guilty, and the trial court appointed the public defender to represent him. Defense counsel filed a motion to suppress defendant's oral statements to police, including a videotaped statement in which defendant admitted his participation in the armed robbery and shooting. The jury trial, originally set for March 9, 2009, was continued to June 8, 2009. After an evidentiary hearing, the trial court denied defense counsel's suppression motion. Defendant thereafter requested the appointment of a different public defender, who would keep him better informed and represent him "a little bit better." Defense counsel stated that communication with her client had "broken down." The trial court granted the request for appointment of new counsel and continued the trial date to August 24, 2009.
¶ 5 Defendant's new public defender filed a motion to suppress the identification of defendant during a photographic lineup. Before that motion could be heard, on August 18, 2009, six days before trial, defendant requested that he be allowed to proceed pro se. Defendant stated that he felt he could defend himself "better than the public defender can." After admonishing defendant about the difficulties of self-representation and the possible penalties he faced, the trial court granted defendant's request, finding defendant knowingly and voluntarily waived his right to counsel. On defendant's motion, the jury trial was continued to October 19, 2009.
¶ 6 On September 11, 2009, the case was up for review and tender of discovery to defendant. The court noted, on the record, that defendant was "creating quite a ruckus in the bullpen" and that the court could hear defendant pounding. The court later cautioned defendant that although he had a right to represent himself, if he disrupted the proceedings, he could be removed, and the trial would proceed without him.
¶ 7 Defendant elected not to proceed on the motion to suppress identification that his former public defender filed, and instead filed a series of pro se motions challenging the photographic lineup. Of necessity, the trial date was continued to January 11, 2010. Following an evidentiary hearing on December 10, 2009, the trial court denied defendant's motions. As to the January 11, 2010, trial, upon questioning by the trial court, defendant stated several times that he was ready for trial. Defendant further stated that he would not be calling any witnesses and a pretrial conference was unnecessary.
¶ 8 On December 12, 2009, defendant sent a letter to the trial judge requesting, inter alia, appointment of standby counsel. At a hearing five days later, defendant indicated his continued desire to represent himself at trial, and that he was requesting standby counsel to ensure he would follow the correct procedure and that none of his rights would be violated. The trial court denied defendant's request. Defendant again indicated he was ready for trial.
¶ 9 On December 26, 2009, defendant wrote a letter to the trial judge regarding a discovery matter which the court took up on January 5, 2010. At that time, the court also covered the particulars of how the trial would proceed, advising defendant that jury selection would begin the afternoon of January 11, 2010. Defendant agreed with the trial court that the jury would be told that counsel was available to defendant, and defendant chose to represent himself. Defendant also agreed to make a list of questions he would like the jurors to be asked.
¶ 10 Six days later, on the morning of trial, defendant changed course.
Defendant advised the court that he no longer wished to represent himself and requested appointment of counsel. The State objected, arguing that defendant's request was simply a delay tactic. Defendant interjected: "I'm not representing myself. I don't care-I don't care what she [the assistant State's Attorney] say[s]. I'm not going to trial by myself. I won't do it." The trial court agreed with the State that defendant's request for appointment of counsel was made for the purpose of delay and denied that request. The court addressed defendant:
"I don't think anything has changed. You made an intelligent and knowing waiver of your right to counsel. You've been through two public defenders. You refused to cooperate with them. You asked to represent yourself. You were allowed to do so after questioning. You insisted on representing yourself at every court appearance. We gave you an opportunity to say that you did not want to represent yourself. You insisted on going forward even as of last Wednesday when we were in court. The fact of the matter is I think today it's simply for the purpose of delay that you ask for an attorney. There is nothing in the record to indicate that you're going to cooperate with an attorney. You have a-you had a right to an attorney. Attorneys were appointed for you. You chose to give up that right. You made that decision after lengthy questioning by me, and at this point I still believe that this is just for the purpose of delay, and your request now for appointment of counsel will be denied."
The following colloquy then took place:
"THE DEFENDANT: I ain't going to trial.
THE COURT: Well, this trial is going to start at 1:15. THE DEFENDANT: I ain't doing it.
THE COURT: How do you choose-are you going to choose not to participate?
THE DEFENDANT: I'm not participating, man.
THE COURT: You've previously been advised that trial could be held in your absence.
THE DEFENDANT: I'm not going to trial, man.
THE COURT: I'm going to have you brought back out here at 1:15. We'll go through questioning again and-
THE DEFENDANT: I don't want to talk to you no more. THE COURT: And you can choose to participate or choose not to.
THE DEFENDANT: I'm not participating.
THE COURT: You are not participating at this point? THE DEFENDANT: I'm not participating.
THE COURT: All right. We'll revisit this at 1:15.
THE COURT: *** For the record, Mr. Eppinger has chosen to leave the courtroom, even though he's in custody. He does not-he just walked to the holding cell."
When the court reconvened at 1:17 p.m., defendant was not present. The record reflects that prior to the start of jury selection, the following exchange occurred: "THE COURT: *** We're ready to begin jury selection. The Court has handed clothes that Mr. Eppinger's mother brought this morning to the guard, and it's the report of the guard from the Peoria County Sheriff's Department that Mr. Eppinger refused the clothes and has refused to come into the courtroom; is that correct?
THE DEPUTY: That is so correct.
THE COURT: All right. That is consistent with his statements earlier this morning and his refusal to visit with his mother when the Court made that available to her and to him at mid morning this morning. The Court during a break was going to clear the courtroom and allow Mr. ...