Sixth Division
January 21, 2011
No. 1-07-2969
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court
) of Cook County
Plaintiff-Appellee, )
)
v. ) 04 CR 17327
)
DAMEN TOY, )
) Honorable
Defendant-Appellant. ) James Michael Obbish,
) Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Garcia and Justice R.E. Gordon concurred in the judgment and opinion.
OPINION
Following a May 2007 jury trial, defendant Damen Toy, who appeared pro se at trial, was
convicted of two counts of aggravated criminal sexual assault with a firearm and two counts of
attempted armed robbery. Defendant was subsequently sentenced to a 45-year term for one count
of aggravated criminal sexual assault and a consecutive term of 30 years for the second count of
aggravated criminal sexual assault, as well as two concurrent terms of 10 years for the two counts
of attempted armed robbery, for an aggregate term of 75 years’ imprisonment.
Defendant appeals, arguing that: (1) his waiver of counsel was not valid because the trial
court did not give him oral admonishments about the potential range of sentences; (2) his
conviction for attempted armed robbery should be reduced to simple robbery because the State
failed to prove that he was armed with a “dangerous weapon”; (3) the State failed to prove that
defendant possessed a “firearm” within the meaning of the aggravated criminal sexual assault
statute (720 ILCS 5/12-14(a)(8) (West 2004)); and (4) defendant was denied the right to a fair
1-07-2969
sentencing hearing and the right to counsel because the trial court refused to appoint the public
defender at the sentencing stage of the proceedings.
In July 2004, defendant was charged with the aggravated criminal sexual assault of B.H.
and the attempted armed robbery of B.H. and Paul Watkins-Lash. In August 2004, the public
defender was appointed to represent defendant in this case and in other separate pending cases.
On October 25, 2005, defendant’s attorney informed the trial court that defendant wished
to represent himself. The trial court noted that defendant had “four cases before the Court, three
of which are Class X felonies, two of them are aggravated criminal sexual assault allegations with
numerous counts, armed robbery, attempted armed robbery, burglary, another separate and
distinct armed robbery with an aggravated unlawful restraint.” The court then asked defendant if
he understood all the charges pending before the court. The trial court then warned defendant
about his decision to represent himself as follows.
“You have a constitutional right to represent yourself.
Before I admonish you as I’m required to do under Illinois
Supreme Court rules, I also find it incumbent upon myself to
explain to you that if you do decide to represent yourself, you will
be required to follow all the rules and procedures that every lawyer
who steps into this courtroom must follow. I will not have the
opportunity to teach you the law nor explain to you the procedures
which also encompass the rules of evidence.
And having said that, it’s clear to me that you will be at a distinct disadvantage; so I really
wonder out loud why in the world you would want to represent yourself against trained
2
1-07-2969
prosecutors who are probably salivating for the opportunity to try the case and get someone who
does not know the rules of evidence or courtroom proceeding. They will have a distinct
advantage.
The law does provide and our Constitution does provide
you the opportunity to represent yourself. That alone doesn’t mean
that that’s an intelligent decision.”
Defendant stated that he was not getting the counsel that he “deserve[d].” Defendant
indicated that he had been in jail for 17 months and his attorney did not have a defense for him
while the State was “putting a lot of effort in the case.” Defendant’s attorney then noted that
defendant had new cases that have arisen. In response, defendant said, “I don’t understand why
Mr. Thomas is speaking before you. He no longer represents me.” The court informed defendant
that it would have its clerk make copies of all the charges and the minimum and maximum
possible sentences and give defendant the opportunity to read them. The court again advised
defendant about the risk of representing himself at trial.
At the next status hearing on October 31, 2005, the trial court asked defendant if he still
wished to represent himself and defendant responded that he did. The trial court informed
defendant that it was going to give him a copy of four separate indictments and “a typewritten
copy of all the possible sentences, each count on each separate indictment, and how they may or
may not be consecutive, not only to each other within each separate indictment, but how the
sentences could be consecutive to each other, that the separate indictment – separate cases could
be consecutive to each other. There’s a lot of different possible sentences.”
Defendant continued to assert that he “can’t get a lawyer to help defend my case.” The
3
1-07-2969
trial court continued to warn defendant about representing himself.
“The reason that – the reason why we are giving you all of
this is because you want to represent yourself, and that is the reason
why you have to receive all the information, and, yes, it is a lot of
information to read and to comprehend. That’s why I am putting it
in writing for you so that you could read it, examine it, and then I
will address you in open court and explain to you all the possible
penalties and sentences on the indictment on the next short court
date.”
The court told defendant to review the indictments and sentences and speak with his
attorney before making a final decision.
On November 7, 2005, defendant informed the trial court that he did not want to represent
himself. Later, on January 4, 2006, defendant told the trial court he was not happy with his
attorney because his attorney had not been to meet with him in jail. Defendant’s attorney stated
that defendant asked him to ask the prosecutor about an offer for a plea and the prosecutor gave
him that offer that day. The trial court explained to defendant his attorney just stated in court that
he just received the information. Defendant continued to complain that his attorney had not
visited him, despite the trial court’s repeated discussion that his attorney did not have the
necessary information from the State. The court asked defendant if he wanted to represent
himself and defendant said no, he did not. At the next status hearing on January 26, 2006,
defendant’s attorney informed the trial court that he met with defendant for “about one hundred
minutes” and needed to talk to defendant again.
4
1-07-2969
On February 28, 2006, defendant’s attorney informed the trial court that defendant asked
him to withdraw from defendant’s case and for defendant to represent himself. The trial court
asked defendant if this was “accurate” and defendant responded in the affirmative. The court
checked that defendant had been provided a written explanation of all the charges and sentences
and defendant confirmed that he had received it. The prosecutor stated that the possible
sentences were “58 years minimum, 202 years maximum” due to consecutive counts and charges.
Defendant’s attorney also noted that defendant received an offer of 40 years, but he declined the
offer. The trial court again told defendant he had the right to a lawyer provided free of charge
from the state and asked if defendant wished to terminate that representation and represent
himself. Defendant answered, “Yes, I do.” The court then admonished defendant that he would
be at a disadvantage because he is not trained in the law and that the court cannot teach defendant
about the rules of evidence or act as his lawyer. The court told defendant that he would be
treated like the other lawyers and would be presumed to know procedural and substantive rules.
After this admonishment, the trial court asked defendant what his decision was and defendant
replied, “Your Honor, I choose to represent myself.”
The State then informed the court that it was electing to prosecute defendant on case
number 05 CR 16845, an armed robbery charge. That trial occurred in September 2006, and the
record indicates that it resulted in a mistrial without prejudice. In September 2006, the State then
elected to prosecute defendant under the instant case. The prosecutor asked defendant if he still
intended to represent himself, and defendant answered, “Yes, I do.”
At the next status hearing on October 12, 2006, the prosecutor indicated on the record
that it was filing “an official notice of the charges and the punishments and possible penalties that
5
1-07-2969
can be carried upon if there is a conviction based on any of the charges as they currently stand.”
The trial court stated that it was a two-page document and defendant would be provided a copy.
The court told defendant to “please make sure your read that and review that. If you don’t
understand anything that’s contained in the explanation of all the possible sentences that can result
from a conviction of any one of those counts, on the next court date make notes and ask
questions.”
At the next court date on November 14, 2006, the case appeared before a new trial judge,
who continued on the case and presided over defendant’s trial. Defendant presented motions to
the court, but did not ask any questions regarding the document he received at the previous
hearing concerning the charges and possible sentences. Defendant continued to file numerous
pretrial motions before the court. In March 2007, defendant filed a motion seeking the assistance
of counsel to help with the cross-examination of one witness. The following colloquy took place.
“THE COURT: If you no longer want to be representing
yourself, you are going to have appointed counsel. You need to tell
me that. You can’t of ask [sic] for a lawyer to come in and just for
a little bit of a piecemeal part of the case. That’s not going to
happen. You’ve gone through an extensive amount of questioning
by Judge Simmons assisting that you were capable and wanted to
represent yourself. You can’t have just a little bit of a lawyer. You
either have a lawyer who represents you or represent yourself.
That’s your choice.
THE DEFENDANT: I choose to represent myself, Your Honor.”
6
1-07-2969
Defendant’s case then proceeded to trial with defendant appearing pro se. The following
evidence was presented at the May 2007 jury trial.
In the early morning hours of June 27, 2004, B.H. and Paul Watkins-Lash were sitting on
the porch of B.H.’s house, located at 2415 W. Pensacola in Chicago. Watkins-Lash went to a
nearby gas station to buy cigarettes and walked back to B.H.’s house. B.H. noticed a man
walking behind Watkins-Lash. Watkins-Lash rejoined B.H. on the porch. The man walked by the
house and then approached them. He asked for a cigarette, which Watkins-Lash gave him along
with a lighter. The man left, but returned a short time later. Watkins-Lash stated that the man
was “holding a gun cupped in his jacket, like the barrel of the gun. He had the gun out.” When
asked if there was any doubt in his mind that what the man had was a gun, Watkins-Lash stated,
“That was a gun.” He said the gun was in front of his face, but pointed down toward the ground.
B.H. also testified that the man had a gun. The man then demanded that they give him their
money and threatened to kill Watkins-Lash. When they told the man that they did not have any
money, he searched through their pockets.
The man then told Watkins-Lash to stay on the porch or he would shoot Watkins-Lash.
He took B.H. by her wrist and took her into the gangway between her house and the house next
door. He turned her to face the house with her arms up. He told her to remove her pants, but
then removed them himself. B.H. testified that the man’s penis entered her vagina and his penis
also touched her anus, but did not enter it. During the sexual assault, B.H. felt something in the
back of her head. She assumed that it was the gun because the man was threatening to kill her.
Eventually, Watkins-Lash left the porch and came around to the gangway. When he saw
that B.H. was being sexually assaulted, he yelled at the man. The man stopped and turned to run
7
1-07-2969
away. B.H. tried to tackle the man, but he smacked her and ran away. They went into B.H.’s
house and woke her parents. They called the police and B.H. was taken to Swedish Covenant
Hospital. A sexual assault kit was performed on B.H. B.H. identified defendant in court as the
man who sexually assaulted her.
After being told about the sexual assault, B.H.’s father went outside with a flashlight to
look for the assailant. He recovered a key chain with a key from his front yard and turned it over
to the police.
Christopher Palacios, a neighbor of B.H., heard a scuffle outside and looked out of his
window. He saw a white person arguing with a black person. He said the black person ran away
in a northwest direction. Palacios never identified defendant in a lineup or photo array, but stated
on cross-examination that defendant was the man he saw.
Officer Arcenio Cruz testified that B.H.’s description of her assailant reminded him of a
man with whom he had previous contact. At the police station, he pulled a contact card for
defendant. Detective Stephen Stratton took the contact card and showed it to B.H. in a photo
array with five other photographs. B.H. identified defendant in the photo array. Detective
Thomas Ward went to defendant’s known address, 2619 W. Agitate, and placed defendant under
arrest. Later, Detective Ward tried the key recovered by B.H.’s father on the locks at defendant’s
residence and testified that he tried the key on the front door, vestibule door and the rear door,
and “it all worked.” Defendant was put into a lineup. B.H. identified defendant in the lineup, but
Watkins-Lash did not make an identification.
The police searched the area between the scene of the crime and defendant’s address.
They found a Cubs hat and Bulls breakaway pants in a residential garbage can and a blue
8
1-07-2969
windbreaker in a dumpster behind a grocery store. These clothes matched a description given to
the police by B.H. DNA was recovered from the Cubs hat and it matched defendant’s DNA with
a reasonable degree of scientific certainty. A cigarette recovered near the crime scene was also
tested, but did not match defendant’s DNA. The evidence also showed that no semen was
present in B.H.’s sexual assault kit.
Defendant testified on his own behalf. He admitted that the recovered clothes belonged to
him, but stated that the clothes were stolen from his gym bag at Shields Park two days before the
crime. Defendant attempted to present an alibi defense that he was at home at the time of the
crime, but the trial judge told him that he could not put on an alibi defense since he did not notify
the State prior to trial.
Defendant presented one witness, Ernest Jones. Jones was defendant’s roommate for six
years. He stated that he never knew defendant to have a knife, gun or any weapon. He said the
police searched their apartment and did not recover a handgun.
In rebuttal, the State presented evidence of defendant’s prior conviction for forgery.
Following deliberations, the jury found defendant guilty of two counts of aggravated
criminal sexual assault, one for contact between defendant’s penis and B.H.’s vagina and the other
for contact between defendant’s penis and B.H.’s anus, and two counts of attempted armed
robbery for B.H. and Watkins-Lash.
In June 2007, defendant filed a pro se motion for a new trial. In July 2007, defendant filed
a motion for appointment of counsel for sentencing. Defendant indicated that he only wished to
have counsel represent him for sentencing and to remain pro se on his remaining pending cases.
On August 30, 2007, defendant’s newly appointed attorney attempted to file a motion for a new
9
1-07-2969
trial, but defendant objected. Defendant stated in court that he asked his attorney not to file the
motion because his attorney “has disregarded all the issues that I filed in my previous motion. He
has disregarded every item I gave him. He is not complying at least giving me any consideration.
His motion is incomplete and it misses a lot of issues that I did write for my motion for a new
trial.” Defendant then asked for the trial court to appoint different counsel.
The trial court responded that the request for different counsel would be denied.
Defendant then stated that he “would like to relieve Mr. Thomas of all responsibility dealing with
my case and ask the Court for a 30 day continuance so I can amend my previously filed motion.”
The trial court told defendant that if it allowed defendant’s attorney to withdraw, it would not
grant defendant another continuance. The court told defendant that he could argue his motion for
a new trial, but defendant said he was not ready. The court admonished defendant about his right
to an attorney. The following colloquy then occurred.
“THE DEFENDANT: Your Honor, this guy sucks. He is a
lousy attorney. He is lousy. He does not have my best interest in
heart. And if the court forces me to have him deal with my motion,
the court will deny it. He has none of my issues in here. I have a
43 page motion.
THE COURT: He is not the issue right now.
THE DEFENDANT: It is the issue because if he doesn’t
put my issues before the Court, the Appellate Court will not review
this motion.
THE COURT: He is not the issue, and your insulting Mr.
10
1-07-2969
Thomas is insulting to everybody in this courtroom.
THE DEFENDANT: I am sorry, but his behavior towards
me is insulting.
THE COURT: He is not the issue.
THE DEFENDANT: Yes, he is.
THE COURT: You want to represent yourself?
THE DEFENDANT: I asked the Court to provide me with
an attorney to help with my post conviction motion. And provided
me with the worst attorney in the building. This guy sucks. He is
lousy.”
Defendant then swore at the trial judge and his attorney. The trial judge found defendant
to be in contempt of court and sentenced him to six months, consecutive to the sentence he would
receive on this case. The trial judge then denied defendant’s motion for a new trial.
A week later, on September 7, 2007, the trial judge brought defendant to court to follow
up after the previous proceedings because he wanted to “make sure that I know what your
decision is now that you are acting a little bit more rationally I hope.” Defendant complained that
his attorney’s motion for a new trial contained an inaccuracy and he asked his attorney not to file
the motion. Defendant stated that he filed an interlocutory appeal with the appellate court and
asked for a continuance until the appellate court ruled. The trial judge said that he would not
delay defendant’s case “based on your inappropriate procedural attempts.” The judge repeatedly
asked defendant if he wished to represent himself. Defendant’s responses were more complaints
about his attorney being unwilling to do what defendant wanted. The judge then offered
11
1-07-2969
defendant another opportunity to argue his pro se motion for a new trial, but defendant said he
was not prepared. The court again denied defendant’s motion.
At the next status hearing on September 19, 2007, the trial court recounted that defendant
had rejected the efforts of his public defender to represent him and wished to represent himself on
his own motion for a new trial. Defendant presented multiple motions including a request for an
investigation into judicial misconduct and for an interlocutory appeal. Defendant also asked for a
continuance to hire private counsel. The court found that defendant’s request for a continuance
was not being made in good faith and denied the request. Defendant then asked the court to
appoint counsel for sentencing. The court responded as follows.
“THE COURT: That will be denied. I have given you
umpteen opportunities to have an attorney, Mr. Toy. You continue
to want to play games by hiring and firing them. You had a Public
Defender. You abused him, you swore at him, you threatened him.
THE DEFENDANT: I never threatened him. I never
threatened him.
THE COURT: You used horribly abusive language toward
an individual that was trying to do his job and trying to represent
you to the best of his ability and I am not going to allow you to
abuse.
I told you when it was – when you said you wanted to fire
Mr. Thomas back in August that wasn’t – if I allowed it, you were
not going to be then allowed to change your mind.”
12
1-07-2969
Defendant continued to assert that his family was in the process of hiring him an attorney,
but the trial court denied his request for a continuance. Defendant asked for rehearing based on
ineffective assistance of counsel, which the court denied. Defendant then asked for a continuance
to look into mitigating circumstances, which the court denied.
At that point, the trial court asked defendant to take a seat as the State began to present
its aggravating factors at sentencing. The record indicates that defendant then threw “his entire
file” at the trial court, but it did not injure the judge; “it brushed aside.” The court ordered
defendant to be handcuffed. The court told defendant that if he interrupted the proceedings in any
way other than by an appropriate objection, he would be removed from the courtroom.
The State then presented multiple witnesses regarding two other cases in which defendant
was charged. First, the State presented the testimony of Eric Stubbings. He testified that on
February 25, 2004, he was robbed by an armed gunman. The man followed Stubbings home and
asked for a cigarette. Stubbings gave him a cigarette and then the man flashed a gun, dropped the
cigarette and asked for Stubbings’ wallet. Stubbings was unable to identify his assailant, but the
cigarette the man smoked was recovered and the DNA matched defendant’s DNA.
The second case involved a burglary of the Bailiwick Art Center, located at 1229 W.
Belmont. Evidence was presented that money was stolen from the cash register. A fingerprint
and blood found on the cash register matched defendant.
The State also presented three certified convictions for aggravated battery, possession of a
controlled substance and forgery. The State also read B.H.’s victim impact statement into the
record. Defendant did not present any evidence in mitigation. In allocution, defendant continued
to claim his innocence, denied that he committed the offenses, and stated that he “made one
13
1-07-2969
terrible mistake and that was defending [him]self.”
The trial court then sentenced defendant to 45 years on the first count of aggravated
criminal sexual assault (penis/vagina contact) and 30 years on the second count of aggravated
criminal sexual assault (penis/anus contact), to be served consecutively. The sentences included a
15-year add-on because the jury found that defendant was armed with a firearm. The court also
imposed two concurrent sentences of 10 years for the two counts of attempted armed robbery.
The 10-year sentences are to be served concurrent to the sentences for aggravated criminal sexual
assault. Defendant received an additional consecutive sentence of six months for contempt of
court. Defendant received an aggregate sentence of 75 years and 6 months. Defendant filed a
motion to reconsider his sentence, which the trial court denied.
This appeal followed.
Defendant first argues that his waiver of counsel was not valid because he was not given
the proper admonishments regarding the possible range of sentences. Defendant also asserts that
he was denied his right to a fair sentencing hearing and to counsel when the trial court denied
defendant’s request for counsel. The State maintains that there is no merit to either of
defendant’s claims regarding his waiver of his right to counsel because the claims are contradicted
by the record.
“It is well established that the sixth amendment to the United States Constitution
guarantees an accused in a criminal proceeding both the right to the assistance of counsel and the
correlative right to proceed without counsel.” People v. Haynes, 174 Ill. 2d 204, 235 (1996)
(citing Faretta v. California, 422 U.S. 806, 833-34 (1975)). “Because an accused who manages
his own defense relinquishes many of the traditional benefits associated with the right to the
14
1-07-2969
assistance of counsel, in order to represent himself the accused must knowingly and intelligently
forgo those relinquished benefits.” People v. Kidd, 178 Ill. 2d 92, 104 (1997) (citing Faretta, 422
U.S. at 835). “Although a defendant need not possess the skill and experience of a lawyer in
order competently and intelligently to choose self-representation, he should be made aware of the
dangers and disadvantages of such representation, so that the record will establish that ‘ “he
knows what he is doing and his choice is made with eyes open.” ’ ” Kidd, 178 Ill. 2d at 104
(quoting Faretta, 422 U.S. at 835, quoting Adams v. United States ex rel. McCann, 317 U.S.
269, 279 (1942)). “The requirement of knowing and intelligent choice calls for nothing less than
a full awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it.” Kidd, 178 Ill. 2d at 104-05 (citing Patterson v. Illinois, 487 U.S. 285,
292 (1988)). The trial court’s ruling on a defendant’s decision to represent himself at trial will
only be reversed if the court abused its discretion. People v. Shelton, 401 Ill. App. 3d 564, 574
(2010).
Supreme Court Rule 401(a) dictates the trial court’s procedure when a defendant waives
his right to counsel. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). Rule 401(a) states:
“(a) Waiver of Counsel. Any waiver of counsel shall be in
open court. The court shall not permit a waiver of counsel by a
person accused of an offense punishable by imprisonment without
first, by addressing the defendant personally in open court,
informing him of and determining that he understands the
following:
(1) the nature of the charge;
15
1-07-2969
(2) the minimum and maximum sentence prescribed
by law, including, when applicable, the penalty to which the
defendant may be subjected because of prior convictions or
consecutive sentences; and
(3) that he has a right to counsel and, if he is
indigent, to have counsel appointed for him by the court.”
Ill. S. Ct. R. 401(a) (eff. July 1, 1984).
Compliance with Rule 401(a) is required for an effective waiver of the right to counsel;
however, strict compliance is not necessary. Haynes, 174 Ill. 2d at 236. “[S]ubstantial
compliance will be sufficient to effectuate a valid waiver if the record indicates that the waiver
was made knowingly and voluntarily, and the admonishment the defendant received did not
prejudice his rights.” Haynes, 174 Ill. 2d at 236.
Here, the trial court complied with Rule 401(a). The record shows that on two occasions
the trial judge tendered defendant written documents listing the charges pending against defendant
and the possible sentences. On October 31, 2005, the trial court gave defendant a document
listing all the charges stemming from four separate indictments and the possible sentences for all
cases. The court continued defendant’s case for a week to give defendant time to review the
document before deciding to represent himself. At the next status date, defendant decided not to
represent himself and to keep his attorney. A few months later in February 2006, defendant again
indicated his desire to represent himself. When the trial court questioned whether defendant had
received a written explanation of the charges, defendant acknowledged on the record that he had
received an explanation. Then, the prosecutor stated on the record that defendant faced “58 years
16
1-07-2969
minimum, 202 years maximum” on all pending cases.
Later in September 2006, following a mistrial, the State elected to try defendant on the
instant case. Defendant was asked if he still wished to represent himself and he stated that he did.
The State then presented defendant with a two-page document listing the charges in this case and
the possible penalties, including consecutive sentences. The trial court advised defendant to read
the document and to make notes of anything that he did not understand and ask questions at the
next court date. Defendant never asked the court any questions about this document.
We point out that defendant is not contending that he did not understand the document or
that he was unaware of the possible sentences he faced in the case. Rather, defendant claims that
the trial court failed to comply with Rule 401(a) by not orally admonishing him about his potential
sentences. However, defendant fails to cite any authority for his proposition that compliance with
Rule 401(a) must be done orally.
We find that the trial court substantially complied with Rule 401(a). The trial court
questioned defendant in open court about his desire to waive counsel and represent himself.
Defendant was presented two times on the record with documents that informed him about all the
charges pending against him and the possible penalties. He received a listing of all charges and
sentences for several pending cases, and later, he received specific information of the charges and
penalties for this case. The court told defendant to read and review the documents and advised
him to ask questions about anything he did not understand. Defendant acknowledged receiving
this documents on the record.
Moreover, the trial court went beyond the requirements of Rule 401(a) to make it clear
that defendant knowingly and intelligently made the decision to waive counsel. The trial court
17
1-07-2969
also warned defendant about the dangers of representing himself at trial against the State’s trained
prosecutors. Defendant was advised that the trial court could not teach him the law and could not
act as his attorney, but defendant would still be expected to follow the same rules of evidence as
other attorneys. Accordingly, we find that the trial court properly admonished defendant pursuant
to Rue 401(a).
Likewise, we reject defendant’s contention that the trial court erred in refusing
defendant’s request to appoint the public defender at sentencing or to grant a continuance to
obtain private counsel. The trial court originally appointed an attorney to represent defendant in
his posttrial proceedings, but defendant expressed his displeasure with his attorney’s failure to file
a posttrial motion containing the issues defendant felt were important by, among other things,
calling his attorney names and describing him as “the worst attorney in the building.” At a
subsequent hearing, defendant continued to be abusive at future status hearings to his attorney
and the trial court, yelling obscenities and throwing a file at the judge.
Defendant indicated on the record that he was filing multiple motions to halt proceedings,
including an interlocutory appeal, an injunction, a motion to investigate the trial court’s
misconduct and multiple requests for a continuance to obtain private counsel, to prepare a motion
for a new trial, to file a “rehearing” based on ineffective assistance of counsel. Defendant also
asked for a public defender to represent him at the sentencing hearing, despite defendant having
hired and fired the public defender multiple times before trial and after trial.
Defendant is correct that “a competent waiver of counsel by a defendant once made before
the court carries forward to all subsequent proceedings unless defendant later requests counsel or
there are circumstances which suggest that the waiver was limited to a particular stage of the
18
1-07-2969
proceedings.” People v. Baker, 92 Ill. 2d 85, 91-92 (1982). However, “we cannot countenance
use of that right in a manner which appears calculated to ‘thwart the administration of justice or
to otherwise embarrass the effective prosecution of crime.’ ” People v. Johnson, 119 Ill. 2d 119,
135 (1987) (quoting People v. Myles, 86 Ill. 2d 260, 268 (1981)).
In People v. Blaney, 324 Ill. App. 3d 221 (2001), the defendant argued on appeal that he
was denied his right to counsel when the trial court refused to appoint counsel at sentencing. The
reviewing court detailed the defendant’s cycle of firing attorneys and opting to appear pro se and
then later requesting an appointment of counsel. Blaney, 324 Ill. App. 3d at 225-26. Similar to
defendant in the present case, the defendant in Blaney filed a motion to represent himself at trial
and then withdrew the motion. Then during jury selection, the defendant again requested to
appear pro se, and the trial court granted the motion. After trial, defendant filed a motion for
appointment of counsel and the trial court appointed an attorney. The defendant later told the
trial court he wanted to dismiss his attorney because the attorney was ineffective. “The court
informed defendant that he could choose to proceed pro se or with counsel but that defendant's
lawyer-shopping was over and that the court would no longer appoint another attorney because
defendant was dissatisfied with particular rulings. Defendant replied he wanted an ‘effective’
attorney and not the one appointed to him.” Blaney, 324 Ill. App. 3d at 226. The defendant then
requested a continuance to prepare, which the trial court denied. Two days before sentencing, the
defendant again requested appointment of counsel, which the trial court denied because the
defendant had already dismissed two attorneys and the defendant could not choose which hearings
he would have representation and which hearings he would not. Blaney, 324 Ill. App. 3d at 226.
The reviewing court found that the trial court “had provided defendant enough in the way
19
1-07-2969
of representation” and the defendant’s refusal to accept the appointed counsel acted as a waiver
of counsel. Blaney, 324 Ill. App. 3d at 226; see also People v. Rivers, 61 Ill. App. 3d 376, 386
(1978). The court concluded that the defendant’s “request for ‘effective’ counsel was nothing
more than a request to select from or experiment with appointed counsel to the detriment of the
orderly process of law.” Blaney, 324 Ill. App. 3d at 226.
Similarly, in the present case, defendant repeatedly asked to represent himself and then
later requested counsel. After trial, defendant requested an attorney, which the trial court then
appointed. Defendant later said he did not want his appointed counsel because counsel would not
include defendant’s claims in his motion for a new trial. Defendant said he did not want this
attorney and wanted him relieved of all responsibility for defendant’s case. Defendant continued
to complain about this attorney at multiple court dates. Finally, on the day of the sentencing
hearing, defendant asked for a continuance to obtain private counsel. The trial court found that
defendant’s motion was not in good faith and was an attempt to delay proceedings. Defendant
dismissed his attorney on August 30, 2007, but did not make a request for private counsel until
September 19, 2007. We note that in People v. Ray, 130 Ill. App. 3d 362, 368 (1984), the
reviewing court found the defendant was dilatory in failing to make any effort to obtain counsel in
the three weeks between proceedings. See also Ungar v. Sarafite, 376 U.S. 575, 590 (1964)
(finding that a five-day continuance was not an inadequate amount of time to hire counsel). Given
defendant’s behavior and repeated hiring and firing of his attorney, we conclude that the trial
court did not err in denying defendant’s last-minute request for a continuance to obtain private
counsel.
Defendant next asserts that the State failed to prove that he possessed a “firearm” as
20
1-07-2969
required by the aggravated criminal sexual assault statute. We note that defendant does not
dispute that he sexually assaulted B.H. by placing his penis inside B.H.’s vagina and touching his
penis to B.H.’s anus
When this court considers a challenge to a criminal conviction based upon the sufficiency
of the evidence, it is not our function to retry the defendant. People v. Hall, 194 Ill. 2d 305,
329-30 (2000). Rather, our inquiry is limited to “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia,
443 U.S. 307, 319 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001). It is the
responsibility of the trier of fact to “fairly *** resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319.
It follows that where the finding of guilt depends on eyewitness testimony, a reviewing
court must decide whether, in light of the record, a fact finder could reasonably accept the
testimony as true beyond a reasonable doubt. In conducting this inquiry, as noted, the reviewing
court must not retry the defendant. People v. Cunningham, 212 Ill. 2d 274, 279-80 (2004). The
reviewing court must carefully examine the record evidence while bearing in mind that it was the
fact finder who saw and heard the witnesses. Cunningham, 212 Ill. 2d at 280. Testimony may be
found insufficient under the Jackson standard, but only where the record evidence compels the
conclusion that no reasonable person could accept it beyond a reasonable doubt. Cunningham,
212 Ill. 2d at 280. However, the fact a judge or jury did accept testimony does not guarantee it
was reasonable to do so. Reasonable people may on occasion act unreasonably. Therefore, the
21
1-07-2969
fact finder's decision to accept testimony is entitled to great deference but is not conclusive and
does not bind the reviewing court. Cunningham, 212 Ill. 2d at 280. Only where the evidence is
so improbable or unsatisfactory as to create reasonable doubt of the defendant's guilt will a
conviction be set aside. Hall, 194 Ill. 2d at 330.
To prove aggravated criminal sexual assault, the State must prove that defendant
committed criminal sexual assault while “armed with a firearm.” 720 ILCS 5/12-14(a)(8) (West
2004). A violation of section 12-14(a)(8) of the Criminal Code of 1961 is a Class X felony for
which an additional 15 years must be added to the sentence. 720 ILCS 5/12-14(d)(1) (West
2004). Here, the question relating to the additional fact, whether defendant was armed with a
firearm, was specifically submitted to the jury with two separate verdict forms for each count of
aggravated criminal sexual assault and the jury was instructed as follows to only sign the form if
they concluded that the additional fact had been proven beyond a reasonable doubt.
“[B]efore an additional fact alleged in connection with the offense
of aggravated criminal sexual assault, defendant’s penis to [B.H.’s]
vagina, may be found to exist, the State must prove the following
proposition: That at the time he committed the offense of
aggravated criminal sexual assault, defendant’s penis to [B.H.’s]
vagina, the defendant was armed with a firearm.
If you find from your consideration of all the evidence that
the above proposition has been proved beyond a reasonable doubt,
then you should return the verdict form stating that you find the
22
1-07-2969
additional fact does exist. If you find from your consideration of all
the evidence that the above proposition has been not been proved
[sic] beyond a reasonable doubt, then you should return the verdict
form stating that you find the additional fact does not exist.”
The same instructions were repeated for the second count of aggravated criminal sexual
assault, defendant’s penis to B.H.’s anus.
The jury then concluded that defendant was armed with a firearm when he committed
aggravated criminal sexual assault and signed the verdict form. Specifically, the verdict forms
stated.
“We, the jury, find the fact does exist that, during the
commission of the offense of Aggravated Criminal Sexual Assault,
defendant’s penis to [B.H.’s] vagina, the defendant was armed with
a firearm.”
“We, the jury, find the fact does exist that, during the
commission of the offense of Aggravated Criminal Sexual Assault,
defendant’s penis to [B.H.’s] anus, the defendant was armed with a
firearm.”
Defendant contends that the evidence was insufficient to establish that he was armed with
a firearm because “whether something is a ‘firearm’ depends on its technical specifications, how it
is used, and how it is viewed by certain government entities.”
Section 2-7.5 of the Criminal Code states that, “[e]xcept as otherwise provided in a
specific [s]ection, ‘firearm’ has the meaning ascribed to it in [s]ection 1.1 of the Firearm Owners
23
1-07-2969
Identification Card Act.” 720 ILCS 5/2-7.5 (West 2004).
Section 1.1 of the Firearm Owners Identification Card Act (FOID Act) provides:
“ ‘Firearm’ means any device, by whatever name known, which is
designed to expel a projectile or projectiles by the action of an
explosion, expansion of gas or escape of gas; excluding, however:
(1) any pneumatic gun, spring gun, paint ball gun or
B-B gun which either expels a single globular projectile not
exceeding .18 inch in diameter and which has a maximum
muzzle velocity of less than 700 feet per second or
breakable paint balls containing washable marking colors;
(2) any device used exclusively for signalling or
safety and required or recommended by the United States
Coast Guard or the Interstate Commerce Commission;
(3) any device used exclusively for the firing of stud
cartridges, explosive rivets or similar industrial ammunition;
and
(4) an antique firearm (other than a machine-gun)
which, although designed as a weapon, the Department of
State Police finds by reason of the date of its manufacture,
value, design, and other characteristics is primarily a
collector's item and is not likely to be used as a weapon.”
430 ILCS 65/1.1 (West 2004).
24
1-07-2969
Defendant has not cited any case to support his position. Further, while the statutory
definition does exclude some specific types of firearms, such as, BB guns, flare guns, and antique
firearms, “firearm” is defined broadly. It includes “any device, by whatever name known, which is
designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or
escape of gas.” (Emphasis added.) 430 ILCS 65/1.1 (West 2004).
We also find the circumstances present in this case to be similar to those present in People
v. Lee, 376 Ill. App. 3d 951 (2007). In that case, the defendant approached a family leaving a
liquor store. All of the victims testified that they saw the defendant in possession of a silver or
chrome gun. One of the victims testified that she heard the defendant demand their money or he
would shoot them. Lee, 376 Ill. App. 3d at 953. On appeal, the defendant contended that the
evidence was insufficient to prove that he was armed with a firearm. The reviewing court
disagreed, finding that “the circumstances described by the witnesses support the inference that
defendant was armed with a gun.” Lee, 376 Ill. App. 3d at 956. See also People v. Coleman,
345 Ill. App. 3d 1029, 1033 (2004) (upholding a conviction for armed robbery where the victim
did not see the weapon used, but an object was placed against her throat and she received a cut
and one of the robbers threatened to “ ‘cut’ ” her); People v. Garcia, 229 Ill. App. 3d 436, 437
(1992) (finding the evidence sufficient to support armed robbery conviction where the victim
testified that she saw the gun and “ ‘it looked real’ ” and the defendant repeatedly threatened to
shoot the victim). The Lee court also noted that the defendant’s threats to shoot the victims was
circumstantial evidence that he was carrying a firearm during the robbery. Lee, 376 Ill. App. 3d at
955.
Here, evidence was presented that defendant sexually assaulted B.H. while armed with a
25
1-07-2969
gun. Both B.H. and Watkins-Lash testified that defendant had a gun. Watkins-Lash stated
defendant came up to them “holding a gun cupped in his jacket, like the barrel of the gun. He had
the gun out.” Watkins-Lash further testified that the gun was in front of his face and pointed at
the ground. When asked if he had any doubt that defendant had a gun, Watkins-Lash said, “[t]hat
was a gun.” B.H. also stated that defendant had a gun and she said he put it in his waistband
when he led her to the gangway. Both victims stated that defendant threatened to kill them.
While defendant sexually assaulted her, B.H. felt something pressed against her head. She
believed that object was a gun because defendant was threatening to kill her. After viewing the
evidence in the light most favorable to the State, we find that the jury could have concluded
defendant was armed with a firearm when he sexually assaulted B.H.
Next, defendant contends that his convictions for attempted armed robbery should be
reduced to attempted robbery because the State failed to prove that the weapon used was a
“dangerous weapon.” Defendant does not dispute that he attempted to rob B.H. and Watkins-
Lash, but only that the evidence did not prove that he was armed with a dangerous weapon.
As we have already stated when reviewing a sufficiency of the evidence claim, our inquiry
is limited to “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” (Emphasis in original.) Jackson, 443 U.S. at 319; accord Cox, 195 Ill. 2d at 387. It is
the responsibility of the trier of fact to “fairly *** resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319.
To prove attempted armed robbery, the State was required to prove that “with intent to
26
1-07-2969
commit [armed robbery], [defendant] [did] any act which constitutes a substantial step toward the
commission of [armed robbery].” 720 ILCS 5/8-4(a) (West 2004). A person commits robbery
when he takes property from the person or presence of another by the use of force or threatening
the imminent use of force. 720 ILCS 5/18-1(a) (West 2004). Section 18-2(a) of the Criminal
Code of 1961 (Criminal Code) sets forth the offense of armed robbery and provides:
“(a) A person commits armed robbery when he or she violates
Section 18-1; and
(1) he or she carries on or about his or her person or
is otherwise armed with a dangerous weapon other than a
firearm; or
(2) he or she carries on or about his or her person or
is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense,
personally discharges a firearm; or
(4) he or she, during the commission of the offense,
personally discharges a firearm that proximately causes
great bodily harm, permanent disability, permanent
disfigurement, or death to another person.” 720 ILCS 5/18-
2(a) (West 2004).
Here, defendant argues that the State failed to prove that he possessed a dangerous
weapon. Defendant contends that “[t]o convict [defendant] of armed robbery, the prosecution
was required to prove that [defendant] was ‘armed with a dangerous weapon’ at the time he
27
1-07-2969
attempted to rob B.H. and Paul Watkins-Lash.” Defendant cites to the indictments for these
charges. The indictments alleged that defendant, “with intent to commit the offense of armed
robbery, by use of force or by threatening the imminent use of force and while armed with a
dangerous weapon, to wit: a gun” and referred to section 18-2 (720 ILCS 5/18-2 (West 2004)).
Defendant relies extensively on the supreme court’s decision in People v. Ross, 229 Ill. 2d
255 (2008), to support his contention. In Ross, the defendant was convicted of armed robbery.
The victim testified at trial that while he was walking late one evening, the defendant called to him
while pointing a small gun at him and demanded the victim’s wallet. The victim described the gun
as “ ‘a black, very portable gun,’ ” “ ‘small,’ ” and “ ‘something you can conceal.’ ” Ross, 229 Ill.
2d at 258. After the defendant released the victim, the victim encountered police officers, who
drove the victim back to the scene. There, they saw the defendant, who threw items into a bush
when they approached. A police officer recovered the victim’s wallet and a pellet, BB gun from
the bush. Ross, 229 Ill. 2d at 258.
On appeal, the supreme court considered whether the BB gun was a “dangerous weapon”
under section 18-2. The supreme court cited the decision in People v. Thorne, 352 Ill. App. 3d
1062 (2004), which noted that in previous cases in which guns incapable of firing bullets were
deemed dangerous weapons, evidence was presented that the gun was either used in a dangerous
manner or the character of the weapon was such it was capable of being used as a bludgeon.
Ross, 229 Ill. 2d at 276 (citing Thorne, 352 Ill. App. 3d at 1072-73). The Ross court concluded
that the evidence was insufficient to show that the BB gun was a dangerous weapon where the
BB gun was not presented at trial and no evidence was presented that the gun was loaded,
brandished as a bludgeon or as to its weight or composition. Ross, 229 Ill. 2d at 277. However,
28
1-07-2969
Ross was charged under a previous version of section 18-2 because the offense was committed in
January 1999.
At the time of the armed robbery in Ross, the following version of section 18-2 was in
effect.
“Armed robbery. (a) A person commits armed robbery when he or
she violates [s]ection 18-1 while he or she carries on or about his or
her person, or is otherwise armed with a dangerous weapon.” 720
ILCS 5/18-2 (West 1998).
The amended version of section 18-2 went into effect on January 1, 2000, and was in
effect when the crime occurred in this case. This amendment to the armed robbery statute added
subsection (a)(2), which deleted the requirement of proof of a “dangerous weapon” when the
defendant is armed with a firearm. See 720 ILCS 5/18-2(a)(2) (West 2004). Thus, in Ross, the
supreme court considered whether a BB gun was a “dangerous weapon” under section 18-2(a)
(720 ILCS 5/18-2(a) (West 1998)).
Defendant contends that under Ross, the evidence was insufficient to show that he was
armed with a dangerous weapon because the gun was not admitted at trial and the evidence did
not show that the gun was loaded or used as a bludgeon. However, as the State points out,
evidence of a dangerous weapon may be established through circumstantial evidence and an
armed robbery conviction can be upheld even if the weapon was not seen nor accurately described
by the victims. See Lee, 376 Ill. App. 3d at 955-56; People v. Pryor, 372 Ill. App. 3d 422, 430
(2007); Coleman, 345 Ill. App. 3d at1032-33.
The current statute, specifically section 18-2(a) makes clear that “dangerous weapon” and
29
1-07-2969
“firearm” are two different offenses under different subsections. Section 18-2(a)(1) specifically
excludes a firearm from the dangerous weapon subsection, stating “armed with a dangerous
weapon other than a firearm.” (Emphasis added.) 720 ILCS 5/18-2(a)(1) (West 2004). Section
18-2(a)(2), on the other hand, delineates the commission of armed robbery when “armed with a
firearm.” 720 ILCS 5/18-2(a)(2) (West 2004). Here, the State charged defendant under section
18-2, but did not specify under which subsection. The indictment alleged defendant was “armed
with a dangerous weapon, to wit: a gun.”
The defendant in People v. Hill, 346 Ill. App. 3d 545 (2004), raised the same argument as
defendant does here. In that case, the defendant was charged with attempted armed robbery
under section 18-2, stemming from an attempted robbery at the Prairie Pantry in Decatur, Illinois.
Witnesses testified that the defendant had a chrome or silver automatic handgun with a long
barrel. Hill, 346 Ill. App. 3d at 546-47. On appeal, the defendant asserted that the State failed to
prove beyond a reasonable doubt that he was armed with a dangerous weapon because the gun he
was carrying was inoperable. He relied on People v. Skelton, 83 Ill. 2d 58 (1980), which “held
that the characteristics of a ‘dangerous weapon’ should be analyzed under an objective test to
determine its true danger to others.” Hill, 346 Ill. App. 3d at 547. However, the reviewing court
noted that Skelton and other cases cited by the defendant were decided prior to the amendment to
the armed robbery statute. Hill, 346 Ill. App. 3d at 548.
The Hill court then rejected the defendant’s argument for three reasons. First, no
evidence was presented that the gun was inoperable at the time of the attempted robbery.
Second, the evidence was sufficient to show that the gun was capable of being used as a
dangerous weapon, even assuming it was inoperable, as “[n]o evidence was introduced to suggest
30
1-07-2969
that this gun was incapable of being used as a bludgeon-that it was either too small or too light to
cause serious injury to anyone.” Third, the court found that the evidence was sufficient to find the
defendant guilty of attempted armed robbery under subsection 18-2(a)(2).
“As explained above, the recent amendment to the armed robbery statute added subsection
(a)(2), which deleted the requirement of proof of a ‘dangerous weapon’ when the defendant is
armed with a firearm.” Hill, 346 Ill. App. 3d at 548-49. The reviewing court then looked at the
definition of “firearm” for support.
The court in Hill found:
“According to the above definitions, the focus is on the
intended purpose of the firearm based upon its design, not the
current status of its ability to be used as intended. As such, the
evidence here, which indicated that defendant was armed with a
‘nickel-plated automatic’ handgun, was sufficient to qualify as a
‘firearm’ within the meaning of section 1.1 of the FOID Act despite
defendant's contention that it was inoperable. Therefore, pursuant
to section 18-2(a)(2) of the Criminal Code (720 ILCS 5/18-2(a)(2)
(West 2000)), we find the trial court did not err in convicting
defendant of attempt (armed robbery).” (Emphasis omitted.) Hill,
346 Ill. App. 3d at 549.
The court noted that even though the State did not allege a violation of this subsection in
the charging instrument or rely upon the language of the amended section 18-2 on appeal, the
court affirmed the defendant’s conviction based on the record before them. Hill, 346 Ill. App. 3d
31
1-07-2969
at 549.
As in Hill, the record supports a finding that defendant was armed with a firearm. As we
have previously discussed, both B.H. and Watkins-Lash testified that defendant had a gun.
Watkins-Lash stated defendant came up to them “holding a gun cupped in his jacket, like the
barrel of the gun. He had the gun out.” Watkins-Lash further testified that the gun was in front
of his face and pointed at the ground. When asked if he had any doubt that defendant had a gun,
Watkins-Lash said, “That was a gun.” B.H. also stated that defendant had a gun and she said he
put it in his waistband when he led her to the gangway. Both victims stated that defendant
threatened to kill them. While defendant sexually assaulted her, B.H. felt something pressed
against her head, which she believed was a gun because defendant was threatening to kill her.
Since we have already affirmed the jury’s finding that defendant was armed with a firearm
when he sexually assaulted B.H., we conclude that the record in this case establishes beyond a
reasonable doubt that defendant was armed with a firearm. The indictment charged defendant
with armed robbery for being “armed with a dangerous weapon, to wit: a gun.” Though the State
did not specifically charge defendant under section 18-2(a)(2), it is the applicable section of the
armed robbery statute when armed with a firearm. Accordingly, we affirm defendant’s attempted
armed robbery conviction on the record before us. See Hill, 346 Ill. App. 3d at 549 (citing
People v. Cox, 202 Ill. 2d 462, 472 (2002) (a court of review can affirm on any basis supported
by the record)).
Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
Affirmed.
32