People v. Rasho

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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