Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 07 CR 3851. Honorable James B. Linn, Judge, presiding.
For APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appellate Defender, Brian A. McNeil, Assistant Appellate Defender, OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL.
For APPELLEE: Anita Alvarez, State's Attorney, Alan J. Spellberg, Peter Fischer, Kathleen Warnick, Assistant State's Attorneys, OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL.
COBBS, JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Clarence Trotter was convicted of murder pursuant to section 9-1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1) (West 2006)), and sentenced to natural life in prison. On appeal, defendant contends that the trial court erred in finding that he made a knowing and voluntary waiver of his right to counsel. Additionally, he argues that the prosecutors in this case improperly inflamed the passions of the jury by eliciting irrelevant testimony about the victim and her fiancé, previewing this testimony in opening statement, and relying on it in closing argument.
[¶3] On September 20, 1981, Marilyn Dods was found dead in her studio apartment. Developments in DNA testing linked defendant, who was already serving a life sentence based on a previous murder conviction, to the murder. Defendant was formally charged with Dods' murder on January 8, 2007. Assistant Public Defender Joseph Kennelly was appointed to represent defendant. During the first court date on March 1, 2007, after consulting with defendant, defense counsel informed the court that defendant wanted to motion to demand trial although counsel was not adequately prepared to represent defendant at trial. The court told defendant that " your lawyer is telling me one thing and you're telling me something else, it puts me in a bit of a conflict because I can only hear from one voice. Either your lawyer is representing you or you are going to be representing yourself." The court further explained that defendant was facing a serious case and that his attorneys did not have all of the information they needed to proceed to trial. Defendant informed the court that in the past he had litigated motions while a speedy trial demand was pending. He then agreed to be represented by counsel and asked the court to be sent back to the Illinois Department of Corrections rather than the Cook County jail because he was going pro se on other cases. He told the court " I do law," and " I know my rights. I'm cool. Trust me."
[¶4] On March 22, 2007, both parties tendered discovery. Defendant asked for a copy of all discovery documents. The court informed defendant that because he was not representing himself pro se his attorney would show him the documents. On April 25, 2007, the State tendered its " Notice of Intent to Seek Death." On July 18, 2007, defense counsel filed two motions on defendant's behalf; one to dismiss for failure to commence the prosecution and another challenging the constitutionality of Illinois's death penalty statute. Defense counsel told the court that defendant wanted to demand trial but that he needed time to view a video of defendant's recorded statement. The court then told defendant that his counsel " is trying very hard to defend you properly and really thinks he ought to see what the evidence is before he starts answering ready for trial." Defendant said he understood but wanted to file a motion for discovery. The court informed defendant that he would only hear from " one voice" speaking on behalf of his defense. The court instructed defense counsel to redact discovery documents and let defendant view them.
[¶5] Defendant continued to be represented by counsel, who filed and argued various motions on behalf of defendant from October 24, 2007 through May 24, 2010. During a May 24, 2010, status hearing the State informed the court that it had received a motion for a speedy trial from defendant, and the case was continued for defendant's presence in court. On May 27, 2010, the court again informed defendant that he could not file his own motions while being represented by counsel. Defendant withdrew his demand for trial, and the court told defendant," [y]ou have lawyers and if you start filing your own motions, I can't hear from both [of you] at the same time. You're going to end up representing yourself. You can't keep doing that."
[¶6] On November 29, 2010, the court set the trial for April 4, 2011. During a status hearing on January 21, 2011, the court stated that the Illinois legislature had passed legislation abolishing capital punishment, and that the legislation was awaiting the Governor's signature. On April 4, the court announced that the death penalty was no longer a possible sentence and the State Appellate Defender capital litigation unit withdrew. Assistant Appellate Defender Jack Rimland continued to represent defendant, but subsequently withdrew for personal reasons. The court reappointed Assistant Public Defender Patrick White to represent defendant. Defendant then renewed his motion for a speedy trial. The court asked defendant if he wanted to represent himself, and defendant stated that " I have never said, Mr. Linn, that I move to represent myself. I said I move to -- for a speedy trial. That is my right." The court told defendant that his new counsel needed time to get acquainted with his case.
[¶7] On five separate court dates, defendant continued to demand trial although he was represented by counsel. On April 18, 2012, defendant again attempted to file pro se motions and demanded his speedy trial motion be heard because over 180 days had passed since he demanded trial. Defendant told the court, " I'm not asking that [counsel] represent me. I can represent myself." The court stated that it was unsure that defendant was capable of representing himself. Defendant stated, " [t]hat may be true. We about to find out."
[¶8] On May 3, 2012, the court, after giving defendant a chance to consult with his attorneys, asked defendant if he wanted to represent himself. Defendant responded, " I want you to hear my motion.*** If I have to represent myself for you to hear my motion, yes." The court questioned defendant about his ability to represent himself, and defendant stated that he had represented himself before. When the court asked defendant what he wanted to do, defendant said, " I want you to hear my motion." The court responded, " [t]hat means that you're representing yourself." When the court told defendant that going pro se would mean no attorney would be helping him, defendant said, " [y]ou can always appoint stand-by counsel." After numerous requests to have defendant articulate whether he wanted to proceed pro se, the court stated:
" Now it is my turn. I will infer from everything that is being said and from everything that [defendant] said before, he wants to be
pro se. He wants to assert his rights under the Speedy Trial Act. You will be allowed to represent yourself. I don't think it's a good idea, but that is your idea."
[¶9] The court again explained to defendant that he was wrong that he could assert his right to a speedy trial when represented by counsel. Defense counsel then stated that he found a case that would help explain the concept that " the defendant [is] bound by actions of his attorney unless the defendant clearly asserts his right to discharge." Defendant continued to ask the court to hear his motions, and the court allowed defendant to argue the merits of his motions. The court denied defendant's pro se motion to suppress evidence and informed defendant that " if you want them to represent you, I will not hear any other motions from you." Defendant then argued the merits of his speedy trial motion, in which he stated:
" All these times I was asserting right to speedy trial, you repeatedly each and every court date -- repeatedly told me that I had to waive my right to counsel to enforce my right to a speedy trial. Okay. And I repeatedly told you I was not invoking -- or waiving my right to counsel, that I want speedy trial."
[¶10] The court denied the motion because defendant had been represented by counsel who was preparing the case for trial; however, the court noted that defendant was now pro se and could demand trial if he wanted. Defendant demanded trial and asked the court for stand-by counsel to assist him in his investigation. The court denied the request, noting that defendant was " trying to be manipulative," but that it would arrange for subpoenas for his witnesses.
[¶11] On May 10, 2012, the court asked defendant if he " still [wanted] to be pro se on this case." Defendant responded, " I never felt that I was representing myself. You know, you told me that you got rid of the lawyer, but since I'm representing myself I'm okay." The court offered to appoint counsel, but informed defendant that he would not be able to file motions or demand trial. Defendant responded, " I'm good. I'm good, Judge." The following exchange occurred:
" THE COURT: What do you prefer?
DEFENDANT: I'm good. Just like we doing.
THE COURT: You want to represent yourself?
DEFENDANT: I'm good.
THE COURT: So you're waiving your right to a lawyer? You're good with that, that's what you're telling me.
DEFENDANT: You already waived it for me.
THE COURT: No. I didn't waive it for you. I'm trying to -- come on. Talk straight to me. I'm just trying to establish and make very clear what your right is. You have a right to a lawyer. If you can't afford one, one will be appointed for you. I have Public Defender's [ sic ] here available to help you and you are welcome to have their services. If you want to not take their services, you don't have to accept the right ...