*1 affirmed. and should be of the evidence .the weight against trial court defendants holding judgments at injunction and fixing period contempt , months are affirmed. TJudgments affirmed.
(No. 39523. in Er- Defendant Illinois, the State ror, in Error. Plaintiff DeMary, vs. Robert
Opinion March 29, filed
Ward, J., part. took J., dissenting.
Schaefer, Byron H. Weis, court, Chicago, appointed *2 in error. plaintiff General, William G. Attorney Clark, Springfield, and State’s Attorney, Chicago, (Fred Stamos, John J. General, G. Assistant and Attorney Leach, Kis- C. Elmer Eldridge Hershey, sane and Assistant State’s Attorneys, counsel,) People. Mr. delivered of the opinion Underwood Justice court:
Robert was convicted of DeMary and burglary sentenced to No years there- imprisonment. appeal 10-15 taken, from was but a post-conviction was subse- filed se trial quently numerous errors claimed pro alleging to be of constitutional dimensions. This of error writ review order the State’s allowing motion to dismiss that petition. leave Incorporated by of court in the record now before us is the common-law record and of the report pro- at the ceedings original
Three grounds reversal here urged: (1) counsel; court’s failure appoint competent the court’s (2) examination; refusal to order a clinic behavior (3) denial of a motion for continuance made immediately pre- ceding trial.
The record indicates the of Frank apartment Miyagawa 10, broken into October items, numerous in- a television set cluding portable were taken. saxophone, Sloan, Clifton a at the guard House of Correction who lived in the burglarized that he testified building, Mr. and Mrs. Priess were from a corner returning store drug John where they had a gone for of coffee about 11 cup too A.M. As they approached lived, in which Sloan building they and the taxi “utility way” alley
observed a blocking the entrance. about witness the cab driver blocking spoke set, and a television As he noticed another man he did so seated The individual other the rear seat. things, among Wilson, Frank in the cab apparently brother-in-law, a he was and he told the witness “helping The witness then saw defendant coming friend move.” a one arm and case under saxophone with alley down items, out which other including package carrying visible, further other arm. Sloan under the crowbar was defendant, since he had known whom recognized testified he him, the Priesses childhood, from told took crowbar and called went into his apartment the cab number and get and men left. he returned the cab When police. identified by arrested on October 23, Defendant was Sloan, to the a detailed statement relating burglary, gave Wilson, and di- the sale of the stolen property then defendant was vision Apparently proceeds. *3 A indictment was returned the released on bond. burglary with leave to and the case stricken July following June, because defendant had The State this was says reinstate. bond”, forfeiture order was entered and a bond “jumped maintains he Defendant to the case stricken. being prior his release on a sanatorium following tuberculosis was March, for the first out in 1963, and that he found bond time, and the seeking that an indictment was police pending event, him, then surrendered. any and that he 6, March was reinstated on case burglary court, last-mentioned date defendant On the appeared to hire he had or the lawyer asked whether money out.” The then stated he would “have find court and one defender, of the indictment the public reading appointed entered, waived, a of not and the case as- guilty plea continued to trial cause was thereafter judge. signed times, of defendant the orders reciting presence several on those occasions. On April his counsel and motion for a investigation by depart- pretrial probation ment continued several was allowed. cause was again a motion to times to when defendant filed suppress June 17 earlier dates statement him. On this several given by both had indicated their readiness for trial. On parties June next case was held on call for trial the morning.
On the of the 18th the indi- morning defender cated defendant’s readiness trial and thereafter shortly a five-minute recess to “check” defend- requested something ant had told just counsel. Thereafter defense counsel stated defendant had just informed her of two witnesses about then, whom she had not known until a con- tinuance, inability cross-examine indicating adequately the State’s witnesses until she had talked to the witnesses about had whom she just learned. assistant At- State’s stated his torney willingness prosecution wit- nesses held over for additional cross-examination if defense desired, counsel but continuances, further opposed part because of inconvenience to the witnesses for the State. out that pointed defendant had been answering
“ready trial” whenever the case had been called since and, discussion, after April 25, some ruled “The case will to trial. go We will time you give your get witnesses.” Defendant then announced his refusal to to trial proceed witnesses, without his asked court to appoint compe- tent counsel for him other than the defender. The there judge, indicating showing incompe- denied the tency, Defendant then request. moved for a of venue on change grounds prejudice the judge. This was denied on the that it ground came too late and was purposes delay. Defendant then *4 announced he considered himself that unrepresented, pro- with the trial ceeding would violate his constitutional rights wishes, and be his against this at reiterating objection several points during between colloquy law- judge, yers and defendant. Defense counsel then of his view clinic examination defendant
behavior indicated with her. Defendant to unwillingness co-operate trial if counsel was his to competent willingness proceed of mental he saw indications stated appointed, A examination. jury denied the for and instability request trial with the and the case was then selected proceeded he contention that did his restating defendant periodically his con- and denied not have counsel was being competent clinic examina- The for a behavior stitutional request rights. and counsel by tion renewed defense again was subsequently denied. testimony defense consisted Clifton and brother who stated that wife her defendant’s Frank by to defendant’s Wil-
Sloan was brought apartment on son of the wife’s brothers) preceding (another June 9 he did not This denied Sloan who testified by at their on defendant’s wife and was not apartment know that Sloan indicated of this gist testimony June 9. in ex- that he could defendant help to defendant’s wife It that this would con- “help” money. implied change State. De- refusal testify sist of Clifton Sloan’s Frank a continuance to locate fense counsel requested ensued, he had the State maintaining Wilson and dispute in the that defendant denying courtroom morning after denied the continuance this. court that had been taken Sloan by offer of Wilson proof on wife’s Wilson to defendant’s apartment June wife, thereafter introduced to Wilson there and defendant’s wife conversed. outside while Sloan waited to the of counsel must as incompetency argument in the incompetency there are claims fail. While repeated are intertwined with petition, they se pro that defendant had absolute right the implication defender. Section of “AN than counsel other of Public Defender” Rev. in relation to the office (Ill. ACT then 5604) provided appoint- Stat. 1963, chap. 34, par.
369 de when by of defender counsel ment nohpublic however, de not, consider this to the give fendant. do We to counsel other than fendant a constitutional either right to defender or an substitute right public unqualified at any for the defender counsel appointed private public of his trial. v. Ill.2d Ashley, 402, 409.) stage (People 34 We find no of constitutional other abuse discretion de dimensions the refusal of the trial allow is fendant’s motion for other where such motion counsel first on the morning prior appoint ment of the defender known to and acquiesced defendant for months Par by nearly trial. prior 3^ where, case, ticularly is this true as in this no actual in is shown. competency v. Ill.2d Ashley; Gray, Palmer, Ill.2d 353-5; People 58-65-6.
There numerous complaints case, defender’s inattention to defendant’s and it is claimed that no from that office attorney conferred with de- fendant at the county jail to trial. It is not prior clearly established by fact, record that such (the jail visitation card shows name of a visitor who not is other- true, wise but even if there is no identified) that showing from that investigators office did not confer with defendant this pretrial or that the during period occasions when de- fendant saw counsel court were insufficient. More im- there in the portantly, nothing petition establishing manner in which defendant has been It is prejudiced. neither nor alleged established that named witnesses were avail- able, located, could have been or how their would testimony have been helpful defendant. (See Ashley, pp. 409-413.) short, while we do not intend this to be construed holding as exists, if it approving practice, of failure to consult indigent prisoners with reasonable there is no frequency, here showing which would justify finding incompe- on tency of defense part counsel. The petition simply does not state fact any reason to believe that giving more
time, pro- or effort counsel would consultation result in this different any duced failure that argument There merit to the is no implied was a the Behavior Clinic to order defendant examined by his indicate Defendant did frequently denial due process. counsel, with for other his unwillingness proceed desire trial, constitutional were being and his belief his rights violated, dis *6 but his petition specifically out have claims mental We any abnormality. repeatedly facts the the trial whenever giving lined duties of judge to a doubt as to defendant’s sanity brought rise bona fide attention, either from observation or to the court’s personal of v. Ill.2d Lego, from the counsel (People suggestion cannot Ill.2d but it be 51), v. 76, 78; People Harper, 31 such as to cause doubt as said the circumstances here were counsel, and the with ability to defendant’s co-operate in no of discretion denying committed abuse v. Lego; examination. request Harper; 22 Ill.2d Cleggett, no in the denial the continu-
Finally, we find error of if ance be a constitutional this could considered question the context in it arises. As understand the which here we record, witness, Wilson, of those desired by one only been defendant failed to He neither present testify. nor overheard between conversation during alleged wife. as he Sloan Such testimony might the offer of have as disclosed given, by merely proof, sister, in nature to that of his brother and cumulative - be affect the here in could result view scarcely thought the clear guilt. proof no error the trial We find court’s dismissal of the circuit court of judgment Cook petition, , , County is affirmed T . Judgment affirmed. Mr. Ward took no the consideration part Justice of this case. decision
Mr. Schaefer, dissenting: Justice was entitled to my hearing opinion petitioner to determine the claim that his coun merits his appointed sel did not him. In this competently support represent claim the visitation attached a of his jail petitioner copy card his trial. which shows that he had one visitor prior visitor, that this but not otherwise suggestion named identified, inwas some connected with the de way public court, fender’s office this not at with originates"with for the who facts. trial as torneys know the parties sistant stated that defender’s office had con public fidential from the questionnaire petitioner. significance of this statement is obvious in view of the fol procedure Morris, lowed by defender’s office. (People Ill.2d No made at time 437, 450, any 451.) attempt in the dispute charge implicit explanation petitioner’s that he concluded the defender was incompetent I “when get a chance to see her two minutes before trial.” These facts raise which should questions resolved evidentiary hearing. states “there is opinion nothing *7 in the manner which defendant has been
establishing preju- But the diced.” assistant defender who the case tried stated that she would not be able to cross-examine the prose- cution’s witnesses until she had an to talk to the opportunity witnesses of whom she learned when she talked to the only defendant after she had answered ready trial. continues, of court “It is neither the opinion alleged available,
nor that named could established witnesses were located, have been or how their would be testimony helpful Wilson, to defendant.” Frank a co-defendant had who been commenced, tried and before the defendant’s trial acquitted was not as a the trial the called witness. At re- prosecution sisted continuance to secure Wilson’s attendance on the that he in had been the courtroom ground present during the defendant’s denied defendant this. Attached
to the is the of Wil- affidavit son which states that in time of he was at the County Cook trial, had not courtroom the during been present case, of the defendant’s the month which during tried, that case was that he had a sub- not served with if he a sub- and that had been served with poena appear, he would have and testified the defend- poena appeared ant. that was un- considers testimony Wilson’s opinion nor because he “had neither been
important present during and de- overheard the conversation between Sloan alleged as he fendant’s wife. Such as testimony might given, the offer of was cumulative merely disclosed by proof, sister, scarcely that of and could nature to his brother clear be the result here view of the affect thought But the “clear to which proof guilt” proof guilt.” Sloan, who refers largely testimony opinion fact occurrence witness the prosecution. conversation alleged that was not Wilson present during is of Sloan and the defendant’s wife significance, between that he ever visited the defend- Sloan denied because that he had taken Sloan ant’s testimony wife. Wilson’s im- was, in highly see wife my opinion, the defendant’s portant. n at the defendant’s the “offer of proof” by Whether as of the trial any sig torney regarded by Carroll, Co. v. nificance, Chicago City Railway (see Co., Garvey Chicago Railways Ill. 318, 328-9; cf. record. be from the cannot determined Ill. 276, 282-3.), it. The defendant’s concerning He no ruling appointed made to enter into the prosecution failed attorney request the absent what the testimony as to statutory stipulation Stat. par. be. Ill. Rev. 1965, chap. Wilson would 11 4—4. also of adequate representation Serious questions defender was appointed fact *8 at even represent petitioner hearing In case he had other counsel. recent though court stated: contention he should “Petitioner’s not entirely counsel other than was defender public was, trial without merit since it inadequate repre part, sentation that official of defendant was complain which * * *.” Ill.2d Ashley, 402, 409.) (People ing case the that the defender did present argue public counsel from the office was defender’s public incompetent for want based his he although argument preparation, matter set he did not seek out which upon petition, amend, not did undertake independent investiga tion. But the fact that not made does argument avoid Even defender’s office problem. though public is staffed with it is un and dedicated competent lawyers fair both to them and to their clients require defender to that a fellow show defender attempt I afford an evi would incompetent. petitioner dentiary other counsel. hearing provide (No. 39157. in Er- Illinois, Defendant State
ror, vs. Charles Plaintiff in Error. Musil,
Opinion May filed