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People v. Washington

Court of Appeals of Illinois, First District, Second Division

September 20, 2016

LUTHER WASHINGTON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 CR 1885 The Honorable Maura Slattery Boyle, Judge, presiding.

          PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pierce and Simon concurred in the judgment and opinion.



         ¶ 1 Defendant Luther Washington, who represented himself at his jury trial, was convicted of murder with a firearm enhancement. At his sentencing hearing, Washington again represented himself. The sentencing court imposed a term of 30 years' incarceration for murder with an additional consecutive 60-year term for the firearm enhancement. This court granted Washington's motion to file a late notice of appeal.

         ¶ 2 Washington argues he was not properly admonished regarding his right to counsel as required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), both before trial and later when he elected to proceed pro se for sentencing. Washington also argues he was not fit for trial and the trial court should have ordered a second fitness hearing. The State responds that Washington was found fit for trial at his first evaluation hearing and the trial court was not obligated to sua sponte order another fitness hearing. And, the State asserts Washington was properly admonished regarding his right to counsel before trial. The State agrees with Washington, however, that he was not properly admonished when he elected again to proceed pro se for sentencing, and this court should remand for a new sentencing hearing.

         ¶ 3 We affirm Washington's convictions but remand for a new sentencing hearing. The trial court properly admonished Washington before trial when he discharged his attorney and proceeded pro se. The trial court appointed a new assistant public defender to represent Washington on posttrial motions, but Washington discharged him. We find the requirements of Rule 401(a) were substantially met and Washington knowingly and intelligently waived his right to an attorney at trial. In addition, the record supports the trial court's finding that Washington was fit for trial. But, we reverse and remand for resentencing as the "continuing waiver" rule did not apply. Washington requested and received posttrial counsel, and the trial court did not substantially comply with the requirements of Rule 401(a) before accepting Washington's waiver of his right to counsel for the sentencing hearing.

         ¶ 4 BACKGROUND

         ¶ 5 On the night of September 13, 2008, Garfield Rogers was found facedown in an alley behind his house with a gunshot wound to the head. Earlier that day, Rogers and Washington visited Debra Lewis and her children at her home. Lewis, a relative of Washington's, had known Rogers for 35 years. After spending the day at Lewis's home, Rogers and Washington left late in the evening in Washington's car.

         ¶ 6 Three months later, Washington was arrested in an abandoned building. When arrested he was carrying the gun that forensics later determined killed Rogers.

         ¶ 7 Between February 2009 and April 2011, the office of the public defender represented Washington. In October 2010, the trial court sua sponte ordered two psychiatric evaluations after Washington's assistant public defender informed the court that Washington questioned whether Rogers' death resulted from a shooting. After the two evaluators reached opposite conclusions, the trial court held a fitness hearing on January 14 and March 9, 2011. Washington's attorney stated for the record that Washington believed he was fit for trial and opposed any finding of unfitness.

         ¶ 8 At the hearing, Dr. Susan Messina, licensed clinical psychologist at forensic clinical services for the State, testified she evaluated Washington on two separate occasions in October and November 2010. She diagnosed Washington with "persecutory type delusional disorder" but stated that Washington understood the charges against him and the role of each participant in the trial. She opined, however, that he was unfit to stand trial.

         ¶ 9 Dr. Nishad Nadkarni, staff psychiatrist, evaluated Washington on December 22, 2010. At the time, Washington was prescribed an antipsychotic medication plus Benadryl for side effects. Washington self-reported a diagnosis of "paranoid schizophrenia" but denied symptoms of mania or a major depressive episode. Dr. Nadkarni said Washington "exhibited no psychiatric or cognitive impairments." Dr. Nadkarni deemed Washington's affect and mood stable; thought process logical; and, in terms of his articulation, at least above average intelligence. Washington was well-focused on the task, and based on his criminal history and reports of behavior in Cermak Health Services, Dr. Nadkarni opined that Washington manifested antisocial personality traits; in other words, he was a sociopath.

         ¶ 10 Dr. Nadkarni considered Washington fit for trial. Washington demonstrated a "strong understanding" of the charge and a "strong comprehension" of the nature of the proceedings, correctly identified the roles of various courtroom personnel, and displayed the capacity to assist counsel in his defense. Washington expressed frustration with his defense counsel but was logical and rational in reporting his problems communicating with counsel.

         ¶ 11 On March 9, 2011, the trial court found Washington fit for trial, stating "Mr. Washington is intelligent, functioning, and does not suffer from any mental health issues that renders him unfit." The assistant public defender requested leave to withdraw as counsel, which was denied.

         ¶ 12 The following month, the trial court sua sponte ordered an additional evaluation for sanity. On the next court date, in May, Washington asked to proceed pro se but requested the court "allow me to have standby counsel for technicalities to assist me." The trial court informed Washington he was charged with first degree murder, with a sentence "anywhere from a minimum of 20 years" up to life imprisonment. The trial court also told Washington he had a right to counsel and an attorney would be appointed if he could not afford one. After more discussion, Washington requested, and was granted, "one opportunity to speak to [the assistant public defender] before we finalize it." The case was passed and recalled. Washington told the court he "would like to" represent himself.

         ¶ 13 On June 23, Washington filed a motion for a bill of particulars and a motion requesting the charging document. He also requested standby counsel. The case was continued twice more. On each occasion the trial court stated Washington was present representing himself on a charge of first degree murder. Washington filed multiple motions at each appearance.

         ¶ 14 On September 20, Dr. Fidel Echevarria, staff psychiatrist with forensic clinical services, examined Washington and reviewed his clinical records. Dr. Echevarria opined that Washington was mentally fit for trial, legally sane at the time of the alleged offense, and understood his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)). Echevarria's report noted Washington identified the charge of first degree murder as a felony and he defined felony to mean, "In my case, it's what they call a class M something like 20 to 60 and a little bit more because a gun was involved, possibly up to life." On September 30, based on this report, the trial court, without holding a hearing, found Washington fit for trial.

         ¶ 15 In October and November, Washington appeared pro se and filed multiple motions each time. In November, Washington filed two motions, one requesting "assistance to assist in my pro se defense, " which was denied. Washington then stated he was "receiving a lot of bias" in the courtroom and was "not getting any assistance." After a lengthy colloquy, the trial court informed Washington: "We will try this as a bench or a jury sometime in January. Whatever you choose."

         ¶ 16 In January 2012, Washington stated he had "water in [his] ear" at the previous court date and was unable to hear the rulings on his motions. Washington stated that he wanted to represent himself but also filed another motion for "assistance, " which the trial court denied.

         ¶ 17 Five months later, in May 2012, Washington filed pro se a motion for a substitution of judge for cause. Washington argued his motion before Judge Kazmierski and insisted that he wanted an attorney for his case saying: "I am not qualified to fight. I want to gather some evidence and I need someone to help me present it." Washington then accused the trial judge (Judge Slattery Boyle) of not allowing him to subpoena witnesses; he accused the assistant public defender who had been assigned to his case until April 2011 of conducting "a charade." Judge Kazmierski denied the motion and informed Washington that if he could not afford an attorney, Judge Slattery Boyle would appoint a public defender.

         ¶ 18 Between November 2011 and June 2012, Washington appeared pro se at 20 court dates and filed about 100 motions. On August 6, 2012, the trial court denied 12 motions Washington filed pro se, including a motion to "exhume the victims' body" and a motion objecting to "being forced to appear in court every five or ten days as a pro se litigant."

         ¶ 19 Trial

         ¶ 20 Jury selection began on August 14, 2012. Before trial, Washington stated he was not going to participate but that during the trial he wanted to sit in the back of the courtroom. The trial court denied his request. Washington refused to answer when asked if he objected to the State's motion to sever the armed habitual criminal count and motion to exclude witnesses. The court then proceeded to voir dire.

         ¶ 21 Washington introduced himself to the jurors by saying he was not participating in the trial because he was denied "all" due process and that he was "apparently a schizophrenic and I'm not entitled to no experts as written in Ake versus Oklahoma [sic]." During the rest of the voir dire Washington either did not respond to questions asked of him or announced that he was not participating. Finally he objected "to everything pertaining to this trial."

         ¶ 22 Washington's opening statement consisted of statements that the deputy sheriffs dragged him into the courtroom because he was protesting participating in the trial, that if the charges were true he would not have been offered a second degree murder plea, and that he did not have a police report saying that Rogers died of a gunshot wound. He again announced he was not "offered" any due process and was not participating in the trial.

         ¶ 23 The State presented four witnesses who were present at Lewis's house on September 13, 2008. Each testified that Washington and Rogers spent the day playing dominoes and visiting. Rogers left with Washington around 9 p.m. Washington made no objections, and when it was his turn to cross-examine each witness, he stated he was not participating in the trial. At one point he stated "you haven't allowed me a chance to participate-in the adversarial proceedings thus far."

         ¶ 24 The State called a friend of Washington's, William Friday, who answered almost every question either with the statement "I don't know" or "I don't recall." When the trial court asked Washington if he had cross-examination, he stated, "Your Honor, I'm not participating in these proceedings." The trial court then recessed until the next day, prompting Washington to comment: "Your honor, for the purposes of the record I object. You've not allowed me to have any of my witnesses. You've not given me any due process. These cuffs are tight. My ankles are bleeding. And I don't know if I'm going to be able to make it."

         ¶ 25 The next morning, when the court reconvened, Washington told the court outside the presence of the jury that he would not participate in trial and that he "did not ask for a jury trial. I want the ...

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