NO. 4-09-0104 Filed 3/23/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
ASHOOR RASHO, ) No. 07CF173
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE MYERSCOUGH delivered the opinion of
the court:
In November 2008, a jury found defendant, Ashoor Rasho,
guilty of aggravated battery. In February 2009, the trial court
sentenced defendant to five years' imprisonment. Defendant
appeals, arguing the court abused its discretion by denying
defendant his right of self-representation at trial. We affirm.
I. BACKGROUND
On August 1, 2007, the State charged defendant by
information with one count of aggravated battery (720 ILCS 5/12-
4(b)(18) (West 2006) (as amended by Pub. Act 94-243, §5, eff.
January, 1, 2006 (2005 Ill. Legis. Serv. 1766 (West)); Pub. Act
94-327, §5, eff. January, 1, 2006 (2005 Ill. Legis. Serv. 2178
(West)); Pub. Act 94-363, §5, eff. July 29, 2005 (2005 Ill.
Legis. Serv. 2261 (West)); and Pub. Act 94-482, §5, eff. January,
1, 2006 (2005 Ill. Legis. Serv. 2562 (West)))). The information
alleged that on June 4, 2007, defendant, an inmate at the Pontiac
Correctional Center (Pontiac), knowingly made physical contact of
an insulting or provoking nature with Dustin Baylor. Specifi-
cally, the information alleged defendant threw a liquid substance
upon Baylor, knowing Baylor was a correctional institutional
employee and employee of the State of Illinois engaged in the
execution of his official duties.
On August 15, 2007, the trial court appointed the
public defender to represent defendant. At the same hearing,
defense counsel informed the court he needed to obtain some
mental-health records. The court set the case on the November
2007 trial calendar.
A number of continuances followed. At the October 17,
2007, pretrial hearing, defense counsel requested a continuance
to obtain additional information defendant believed counsel
should have. The matter was set for the January 2008 calendar.
At the December 19, 2007, pretrial hearing, defense
counsel informed the court that defendant had given him addi-
tional information and counsel needed to obtain additional
documentation from the Department of Corrections (DOC). The
court continued the matter to the March 2008 calendar.
On February 25, 2008, defendant filed a pro se motion
for the appointment of counsel other than the public defender.
In the motion, defendant asserted he was an illiterate, mentally
ill prisoner. Defendant complained that defense counsel did not
"file a motion on Pontiac Law Library" as defendant had re-
quested, send defendant copies of all motions filed, and "write
to him."
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At the March 5, 2008, pretrial hearing, defense counsel
asked for a continuance because defendant believed counsel needed
to procure additional documents relating to defendant's sanity
and fitness and "might have a bearing exactly where he was on
certain dates in the penitentiary." The trial court continued
the trial to the June jury calendar. The court also denied
defendant's pro se motion for appointment of counsel other than
the public defender. The court informed defendant he would
either have his current counsel or nobody, but it noted that
defendant and defense counsel appeared to be getting along better
now. Defendant agreed he no longer had a problem with defense
counsel. The court directed the clerk to show the motion denied
and that defendant was in agreement with that denial.
The March 10, 2008, docket entry indicates the court
granted defense counsel permission to employ a private investiga-
tor.
At the May 21, 2008, pretrial hearing, defense counsel
requested a continuance. Defense counsel informed the court that
defendant had made him aware of additional documents defendant
believed would be beneficial. Defense counsel explained he had
received quite a few pages of records about defendant's sanity.
Today, defendant indicated he thought certain medical records
would indicate defendant's use of psychotropic drugs during the
period in question, which might have altered his thinking. The
court granted the continuance and set the case on the August jury
calendar.
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At the July 23, 2008, pretrial hearing, defense counsel
indicated he was not ready for trial. Defendant had given him
additional information, including the names of two potential
witnesses defendant wanted counsel to interview. Defense counsel
had also not received documents he requested from DOC. The State
objected to a continuance, noting that defendant had had a long
time to get his witnesses. The court noted defense counsel had
also been allowed to hire a private investigator. Defense
counsel responded that defendant had also raised a question about
his sanity. The court granted one more continuance and set the
case on the November jury calendar.
At the October 15, 2008, pretrial hearing, defense
counsel informed the trial court defendant wanted a continuance.
Counsel noted he had received and reviewed defendant's psychiat-
ric records to see if a psychiatric examination was needed.
Counsel did not believe such an examination was needed. Defense
counsel had also requested certain medical records but received
additional psychological records instead. The trial court denied
the motion for a continuance. The court kept the case on the
November calendar and told parties they would receive a specific
trial date the following week.
On November 12, 2008, the trial court called the matter
for jury trial. Defense counsel informed the court that defen-
dant indicated to him by letter and also in person that day that
defendant did not want defense counsel to represent him and
wanted to proceed pro se. Defendant had also advised defense
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counsel of several witnesses defendant believed were necessary
that counsel had not heard about previously. The court asked
defendant how he wanted to proceed.
Defendant informed the trial court that he had filed
two motions two weeks earlier. The trial judge stated she did
not have any file-stamped copies of any motions. Defendant
explained to the court that he filed a "motion to withdraw
counsel and go pro se" and a motion for production of medical
records he had been trying to obtain. Defendant believed the
documents would show that he was on crisis watch and was suffer-
ing injuries and could also substantiate his mental-health
records, "what I suffer from and why I was doing the things I was
doing."
The following exchange occurred between the trial court
and defendant:
"THE COURT: Well, let's first deal with
your request that you be able to represent
yourself. I do not have a written motion
filed so the most I can take up would be a
motion that you are making on your behalf
today. Why is it that you now want to repre-
sent yourself?
THE DEFENDANT: Well, the thing is, I
mean, I don't know. The reason why I want to
represent myself [is] I feel I can do better
to address my issues because I've given sig-
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nificant times, you know to, to, to my
[c]ounsel ***; and, and you even gave him
almost what, three months to obtain certain,
talk to witnesses; I talked to one of the
witnesses the other day, Monday. He says no,
nobody came [and] talked to him.
THE COURT: Well, back in March you had
requested a different attorney; and that
request was denied. There was never any
other issue raised until today. Now here we
are ready to start a jury trial, and you are
telling me you want to represent yourself.
It's a little too late to let you repre-
sent yourself today. Your request is not
made on a timely basis. There may be strat-
egy decisions that [defense counsel] has made
that is part of his job as the public de-
fender; but I cannot, I'm not going to allow
you on the day of trial to all of sudden
represent yourself. So your request to do
that is denied."
Defendant asked about other motions he brought "over
here to file." The trial court refused to consider them because
defendant was represented by counsel. Defendant again complained
about counsel, arguing his counsel had a conflict of interest
because defendant was "being represented by somebody appointed by
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the State." When the court reminded defendant that he had asked
for a different appointment and that request had been denied,
defendant stated, "Okay. And I'm requesting to go pro se." The
court responded:
"I'm telling you on the day of trial I
am not going to entertain a pro se request.
It's too late. You should have made it a lot
sooner. We were in court on October 15th.
Nothing was said on that date. We were in
court October 23rd."
(The record is unclear as to what occurred on October 23, 2008.)
Defendant continued to complain. The trial court asked
defendant if he wanted to stay in the courtroom for the trial.
Defendant indicated he did not. The court warned defendant that
if he was argumentative and disruptive, he would not be allowed
to stay in the courtroom. The court reminded defendant he had an
attorney to assist him, and defendant stated, "I don't want him."
The court responded, "I am not going to allow him to represent
himself on the day of trial. That's a delay tactic; and it's,
he's had plenty of opportunities."
Defense counsel then asked for the opportunity to
explain, for the record, what happened in the case from his view.
Defense counsel explained that when he met with defendant,
defendant first indicated he was not in the cell where the
incident occurred. The court allowed defense counsel to hire a
private investigator to examine that claim. Once defense counsel
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received the appropriate records, it appeared defendant had been
in that cell. Defendant next indicated his mental-health records
should be reviewed. Counsel examined hundreds of pages of those
records. Based on those records, counsel decided not to request
a formal psychiatric evaluation as to defendant's sanity, al-
though counsel noted defendant "had problems." After discussing
that with defendant, defendant next asked counsel to obtain not
his mental-health records but his medical records. Defense
counsel attempted to do so, but DOC sent more psychiatric re-
cords. Counsel also informed the court that in terms of the
other witnesses defendant wanted, today was the first day he
heard that. Defense counsel did not have any witnesses to call
at trial.
The trial court noted the case had been pending for
over one year. The court granted defense counsel numerous
continuances to gather additional information and a private
investigator was hired. The court refused to continue the trial
to allow defense counsel time to talk to the witnesses defendant
brought to his attention the day of trial.
Defendant attempted to interrupt the trial court. When
the court advised defendant it was not his turn to talk, defen-
dant responded:
"Come on. Let's get out of here, man. I'm
not going to sit up here and put up with this
lady's bullshit. Let's go. Come on. Let's
get out of here, man. I don't give a fuck
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about her man. Get me out of this court-
room."
The court directed that defendant be removed from the courtroom
and that the trial would proceed in his absence. Defendant
responded, "This woman's driving me fucking nuts." The court
later noted on the record that the correctional officers from DOC
informed her defendant was about to explode in the jury room, and
defendant was returned to prison.
The trial proceeded in defendant's absence. The State
presented evidence that defendant threw a substance that smelled
and looked like feces on a correctional officer and two nurses
who were trying to deliver medication to defendant in his cell.
Defense counsel cross-examined the State's witnesses but pre-
sented no evidence. The jury found defendant guilty of aggra-
vated battery.
Defense counsel filed a posttrial motion asserting,
among other things, that defendant was entitled to a new trial
because the trial court improperly denied defendant's motion to
proceed to trial pro se.
On February 11, 2009, the trial court denied the
posttrial motion. The court noted the issue of defendant pro-
ceeding pro se was not raised until the day of trial. Following
the sentencing hearing, the court sentenced defendant to five
years' imprisonment.
The record does contain a pro se motion to withdraw
counsel and "[g]o [p]ro [s]e." In the motion, defendant com-
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plained that defense counsel did not write defendant in a timely
manner of "get what [defendant] has request for [sic]." Defen-
dant sought to proceed pro se or be appointed new counsel other
than the public defender.
The motion was entered on the handwritten docket sheet
immediately after the November 12, 2008, jury trial docket entry.
In the record itself, the motion follows a November 13, 2008,
order directing DOC to provide certain information to the court-
services department for preparation of the presentence investiga-
tion report.
The motion to withdraw counsel and proceed pro se is,
however, file-stamped October 31, 2008. The certificate of
service provides:
"that on the Oct. 29.08 2008 [sic], [defen-
dant] gave the following motion to [t]his
[j]udge and copy [sic] State['s] Attorney of
Livingston County on the above day to be
heard by this [c]ourt."
On February 19, 2009, defendant filed his notice of
appeal.
II. ANALYSIS
Defendant argues the trial court abused its discretion
when it denied him the right to self-representation. "On review,
the trial court's decision on a defendant's election to represent
himself will be reversed only if the court abused its discre-
tion." People v. Rohlfs, 368 Ill. App. 3d 540, 545, 858 N.E.2d
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616, 621 (2006); but see People v. Bowman, 40 Ill. 2d 116, 123,
239 N.E.2d 433, 438 (1968) ("It has been found to be reversible
error to refuse a criminal defendant's timely request for self-
representation").
Defendant asserts he made a clear and unequivocal
request to represent himself but his request was improperly
summarily denied by the trial court. Defendant argues the court
should have admonished defendant in accordance with Supreme Court
Rule 401(a) (134 Ill. 2d R. 401(a)). Defendant further argues
his request was not untimely because he filed it two weeks before
trial and it was not accompanied by a request for additional time
to prepare.
A defendant has a right to self-representation in
criminal trials under both the United States and Illinois Consti-
tutions. See U.S. Const., amend. VI; Ill. Const. 1970, art. I,
§8; Faretta v. California, 422 U.S. 806, 832, 45 L. Ed. 2d 562,
579-80, 95 S. Ct. 2525, 2539-40 (1975); People v. Burton, 184
Ill. 2d 1, 21, 703 N.E.2d 49, 59 (1998). The right is "not
absolute and may be forfeited if the defendant engages in serious
and obstructionist misconduct, or if he cannot make a knowing and
intelligent waiver of counsel." Rohlfs, 368 Ill. App. 3d at 545,
858 N.E.2d at 621.
For a defendant to invoke the right of self-representa-
tion, he must knowingly and intelligently relinquish the right to
counsel, and the waiver of counsel must be clear and unequivocal,
not ambiguous. Burton, 184 Ill. 2d at 21, 703 N.E.2d at 59. A
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defendant does not exercise his right of self-representation
unless he "'articulately and unmistakably demands to proceed pro
se.'" Burton, 184 Ill. 2d at 22, 703 N.E.2d at 59, quoting
United States v. Weisz, 718 F.2d 413, 426 (D.C. Cir. 1983).
"Courts must 'indulge in every reasonable presumption against
waiver' of the right to counsel." Burton, 184 Ill. 2d at 23, 703
N.E.2d at 60, quoting Brewer v. Williams, 430 U.S. 387, 404, 51
L. Ed. 2d 424, 440, 97 S. Ct. 1232, 1242 (1977).
In this case, the trial court apparently did not have
defendant's written motion to proceed pro se at the commencement
of trial. As noted, the document is file-stamped October 31,
2008. However, the document physically appears in the record on
appeal after a November 13, 2008, document and appears on the
handwritten docket sheet after the docket entry for the jury
trial.
Nonetheless, even assuming the document was actually
filed on October 31, 2008, approximately two weeks before trial,
the motion did not contain an unequivocal assertion that defen-
dant wanted to proceed pro se. In the body of the motion,
defendant asked to proceed pro se or to receive new counsel other
than the public defender. Given the language in defendant's
motion, defendant's earlier request to obtain new counsel, and
the denial of his last motion to continue, his request to proceed
pro se was not unequivocal. See, e.g., Rohlfs, 368 Ill. App. 3d
at 545, 858 N.E.2d at 621-22 (finding no unequivocal invocation
of the right to proceed pro se where the defendant vacillated
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between wanting new counsel, wanting to represent himself, and
ultimately abandoning his request to proceed to trial pro se;
trial court did not abuse its discretion because it appeared the
defendant was attempting to "undermine his attorney's profes-
sional judgment and to obstruct the orderly prosecution" of the
case).
Moreover, defendant's request to proceed pro se on the
day of trial was not timely and was accompanied by an implicit
motion for a continuance. A request made before trial commences
is generally viewed as timely if it is not accompanied by a
request for additional time to prepare. People v. Ward, 208 Ill.
App. 3d 1073, 1084, 567 N.E.2d 642, 649 (1991), citing 2 W.
LaFave & J. Israel, Criminal Procedure §11.5(d), at 47-48 (1984);
see also, e.g., People v. Woodruff, 85 Ill. App. 3d 654, 660, 406
N.E.2d 1155, 1160 (1980) (noting that the request to proceed pro
se must be timely made; "[a] defendant cannot await the eve of
trial and then, hoping for a continuance, announce that he has
decided to rely upon his skills rather than counsel's in present-
ing his defense"); United States v. Johnson, 223 F.3d 665, 668
(7th Cir. 2000) (a motion to proceed pro se filed before the jury
is empaneled is timely "unless made for the purpose of delaying
or disrupting the trial").
In this case, defendant orally sought to proceed pro se
immediately prior to the commencement of trial but also clearly
wanted additional time to prepare. Defendant complained that he
wanted to procure additional documents and call witnesses who
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were not present the day of trial. The trial court concluded
that defendant's attempt to proceed pro se was a delay tactic.
We agree. On the facts of this case, the court did not abuse its
discretion by denying defendant's untimely request, the day of
trial, to represent himself. See Ward, 208 Ill. App. 3d at 1084,
567 N.E.2d at 649 (a trial court may deny a request to proceed
pro se when the request comes "so late in the proceedings that to
grant it would be disruptive of the orderly schedule of proceed-
ings"); Burton, 184 Ill. 2d at 24, 703 N.E.2d at 60 (noting many
courts have held a defendant's request is untimely when made just
before the commencement of trial).
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State's request
that defendant be assessed $50 as costs for this appeal.
Affirmed.
TURNER and STEIGMANN, JJ., concur.
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