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People v. Herndon

Court of Appeals of Illinois, First District, Second Division

July 21, 2015

JAMES HERNDON, Defendant-Appellant

Page 399

Appeal from the Circuit Court of Cook County. No. 09 CR 6396. Honorable William H. Hooks, Judge Presiding.

For PLAINTIFF-APPELLEE: State's Attorney, County of Cook, Chicago Illinois, Of Alan J. Spellberg, Jeffrey Allen, Tasha-Marie Kelly, Paul J. Connery, Assistant State's Attorneys.

For DEFENDANT-APPELLANT: Office of the State Appellate Defender, Chicago, Illinois, Of Caroline E. Bourland, Assistant Appellate Defender.

Simon, Presiding Justice and Neville, Justice concurred in the judgment and opinion.


Page 400


[¶1] Following a jury trial, defendant James Herndon was convicted of delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)) and was sentenced to a term of 10 years' imprisonment. On appeal, defendant argues that he should be granted a new trial because the trial court did not substantially comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), and because of prosecutorial misconduct during closing argument. For the following reasons, we affirm.


[¶3] On February 12, 2009, defendant was charged by way of indictment with two counts of delivery of a controlled substance. The State alleged defendant committed the offense of delivery of a controlled substance in that he delivered less than one gram of cocaine to undercover officer Donald Clark, and that the offense occurred within 1,000 feet of a school.

[¶4] On June 4, 2009, at defendant's first appearance, an assistant public defender was appointed to represent him. Defendant was also represented by the same assistant public defender at a June 10, 2010, hearing on defendant's motion to suppress identification. At the hearing on the motion, Officer Donald Clark testified that on February 12, 2009, around 10:30 a.m., approximately one hour after completing an undercover purchase of narcotics from defendant, he viewed a photo array and positively identified both defendant and his codefendant Larrie Green. There were six individuals in the photo array, including both defendant and codefendant. The trial court ruled that the photo array was not unduly suggestive and denied defendant's motion to suppress identification.

[¶5] On June 21, 2010, defendant informed the trial court that he wished to represent himself due to " irreconcilable differences" with his attorney. Based on the trial court's inquiries, defendant stated that he had been in custody for 13 months; that he was 56 years old; that he had completed 3 years of college; that he was not under any influence of drugs or alcohol; and that his criminal background was " very extensive." The trial court advised defendant multiple times not to represent himself, stating that " it is almost always a disaster," among other comments regarding pro se representation. The trial court also informed defendant that he would not receive assistance from any other attorney or from the court. During this exchange, the following colloquy occurred:

" ASSISTANT STATE'S ATTORNEY: The defendant is charged with a Class 1 as well as a Class 2. For the

Page 401

Class 1, he is facing four to 15 years. Based on his background, he is eligible for an extended term, which is 15 to 30 years mandatory with supervised release of two years.
THE COURT: Is it still probationable?
THE COURT: So what you face is very serious.

[¶6] The trial court additionally informed defendant that he met the basic requirement to proceed pro se. However, the court inquired further as to why defendant wished to represent himself. Defendant revealed that he disagreed with his attorney's strategy, and he wanted to explore pretrial strategy, while his attorney wanted to go to trial immediately. When defendant asked if he would later be allowed to change his mind about being represented by counsel, the trial court stated that it depended on the stage of the proceedings, but that if defendant decided to represent himself, they would go forth with the assumption that defendant could not change his decision. The court gave defendant one week to think about his decision.

[¶7] The next week, on June 28, 2010, defendant requested a different assistant public defender. The trial court stated that was not an option, and defendant chose to proceed pro se.

[¶8] Following defendant's decision to proceed pro se, he filed several motions, including discovery motions, a motion to dismiss indictment, a motion to quash arrest, and a motion to suppress video evidence over the next several court dates. Defendant argued a motion to dismiss his indictment on the basis that the money used by the undercover officers was never recovered. Defendant also argued a motion to quash arrest on the basis that he was not arrested at the address listed on the arrest warrant. Defendant also ...

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