Court of Appeals of Illinois, First District, Second Division
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
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.
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
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
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."
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
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 ...