from the Circuit Court of Saline County. No. 13-CF-328
Honorable Walden E. Morris, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Jacqueline L.
Bullard, Deputy Defender, Warner S. Brockett, Assistant
Appellate Defender, Catherine Hart, Assistant Appellate
Defender, Attorneys for Appellant
Michael Henshaw, Patrick Delfino, Director, David J.
Robinson, Acting Deputy Director, Chelsea E. Kasten, Staff
Attorney, Attorneys for Appellee
JUSTICE CATES delivered the judgment of the court, with
opinion.Presiding Justice Barberis and Justice Welch
concurred in the judgment and opinion.
1 Following a jury trial in the circuit court of Saline
County, the defendant, Lenard A. Smock, was convicted of
methamphetamine possession (720 ILCS 646/60(a) (West 2014))
and disorderly conduct (720 ILCS 5/26-1(a)(1) (West 2014)).
He was sentenced to 5 years' imprisonment for possession
of methamphetamine and 30 days in the Saline County jail for
disorderly conduct to run concurrently with the 5-year
sentence. On appeal, the defendant contends that (1) the
trial court erred in denying his motion to suppress evidence
obtained incident to a warrantless arrest in his home, (2)
the trial court abused its discretion by refusing to appoint
substitute counsel from outside the public defender's
office, (3) the circuit clerk erroneously assessed $124.80 in
witness fees, and (4) he is entitled to a $5 per
diem presentence credit against his eligible fines. For
the reasons that follow, we reverse the defendant's
convictions and remand for further proceedings.
3 On November 27, 2013, the defendant was charged by criminal
information with possession of methamphetamine (count I),
possession of a hypodermic needle (count II), and disorderly
conduct (count III). These charges arose from the
investigation of a noise complaint that resulted in the
warrantless arrest of the defendant inside of his trailer.
4 The trial court appointed Assistant Public Defender Lowell
Tison to represent the defendant. On December 12, 2013, the
defendant instructed Tison, via notarized letter, to file a
motion to suppress evidence, claiming that the police had
violated the defendant's fourth and fourteenth amendment
rights when they entered his home to effectuate a warrantless
arrest. Despite this letter, Tison did not move to suppress
the evidence. On March 21, 2014, the defendant filed a
pro se "Motion to Quash and Suppress." At
a hearing held that same day, Tison declined to adopt the
pro se motion on the defendant's behalf. The
defendant then asked the trial court to appoint him an
attorney from outside of the public defender's office.
The defendant explained to the court that he had prior
experience with having been represented by the assistant
public defenders in Saline County and did not believe that
they would adequately represent his interests. The court
refused to appoint substitute counsel, and the defendant
opted to proceed as his own attorney.
5 On April 1, 2014, the trial court held a hearing on the
defendant's pro se motion to suppress. The
defendant and the two arresting officers testified at the
hearing. Generally, the testimony established that on
November 23, 2013, at approximately 1:30 a.m., Detective Curt
Hustedde and police officer Kenny Shires responded to a noise
complaint from a resident in a trailer park. They proceeded
to 28 West Park Street in Harrisburg, Saline County. The
officers met with the complainant, Bradley Reed, who
indicated that someone inside the trailer next door was
banging on its walls, while yelling and cursing. As the
officers were speaking with Reed, they too were able to hear
the noise coming from inside the trailer. The officers asked
Reed if he would like to file a complaint against the
defendant for disorderly conduct. Reed indicated he would
like to do so and filed a written statement with the officers
alleging the defendant had committed the offense of
disorderly conduct. The officers proceeded next door to the
defendant's residence to arrest him for disorderly
6 The defendant testified that when the officers knocked on
his front door, he told them three times not to enter his
house without a warrant. He assured the police officers he
"would cease and desist as far as the noise was
concerned." The officers told the defendant they would
not enter his home. Nevertheless, when he opened the door,
Officer Shires informed the defendant that he was under
arrest and reached out to grab the defendant by the hand.
7 On cross-examination, the defendant was asked by the State
whether the officers asked him to come out of his home. The
defendant responded, "Yes, sir, they did. And I told
them I wasn't coming outside." The defendant then
testified that when Officer Shires reached out to grab him,
he ran inside his trailer. The defendant stated that when he
ran, "They chased me from my porch into my living
room." One of the officers tazed the defendant in his
living room before placing him under arrest.
8 On direct examination, Detective Curt Hustedde testified
that when he arrived at Reed's residence, Reed expressed
his frustration that the officers had been there in the past
because of the banging on the wall and other disturbances
caused by the defendant, yet nothing had been done. Detective
Hustedde indicated that if Reed were willing to file a
complaint against the defendant for disorderly conduct, the
officers would arrest the defendant. Reed signed the written
statement, and the officers proceeded next door to arrest the
defendant. The defendant refused to come outside when
Detective Hustedde and Officer Shires knocked on the
defendant's door. The officers assured the defendant that
they just needed to talk to him. When asked whether the
defendant came outside, Detective Hustedde responded,
"He didn't come outside, he opened the door."
Detective Hustedde further testified that when the defendant
retreated into the trailer, the officers pursued him through
the open door, intending to place the defendant under arrest.
When they entered the kitchen area, the defendant threatened
Officer Shires with a two-liter plastic bottle. Detective
Hustedde explained that this was his reason for tazing the
defendant to subdue him. The officers then placed the
defendant under arrest.
9 On cross-examination, Detective Hustedde testified that he
had been to the defendant's trailer on other occasions
because of complaints from the residents in the trailer park.
On some of those prior occasions, the defendant had been
outside of the trailer "wandering and banging."
However, on the night in question, they were responding to
"the noise from inside [the defendant's]
residence." Detective Hustedde confirmed that the
defendant told the officers to leave his property if they did
not have a warrant. He also testified that he told the
defendant that they just needed to talk with him and that
they would not leave until he opened the door. On redirect,