dissenting:
I respectfully disagree with the majority’s position that the defendant was afforded due process of law. In my opinion the refusal of the trial court to grant the continuance constituted an abuse of discretion.
On December 17, 1974, the trial court granted the motion of defendant’s private counsel to withdraw from the case and continued the case for one week to allow defendant to retain other private counsel. The private counsel’s motion to withdraw was premised on the conflict between the defense strategy proposed by the persons paying his fee and that desired by defendant. The nature of the conflict is not disclosed by the record, but the attorney felt it so serious that he could not in good conscience continue to represent the defendant.
If the defendant failed in his efforts to obtain private counsel during the one-week continuance, the court would appoint the Public Defender. While the trial court expressed an interest in having the case proceed to trial on January 6, as originally scheduled, the court reassured the defendant several times that defendant and his counsel would decide whether or not the defense was sufficiently prepared to have the case proceed to trial on January 6. The statements made by the court in reassuring the defendant are as follows:
“[I]f you haven’t got you’re [substitute private] lawyer in a week, I will appoint the Public Defender, and have him talk with you, and have him decide whether or not he will be prepared to go to trial on January 6th.
SO*
[I]t will be the responsibility of you and the Defender to decide whether or not you can go to trial on January 6.
# O #
But I want you to understand now that if you and the Defense decide that your not ready to go to trial on January 6, we have got to be talking about some time in April for a trial.
« * «
Now you and he are going to have to decide whether or not you can go to trial thirteen days after he gets in the case. That will be your decision.”
The Public Defender was appointed on December 24, 1974. On January 3,1975, the Public Defender presented a motion for continuance and revealed to the court the existence of a possible insanity defense. The additional time requested in the motion was needed in part to investigate the extent of such a defense. Despite the assurances previously set forth and a possible affirmative defense of insanity, the court denied the motion. However, the court did say that if over the weekend the defense decided to raise insanity as a defense, it would continue the case on Monday for preparation of the defense.
On Monday, January 6, defense counsel renewed his request for a continuance and presented defendant’s affidavit that Colorado authorities had hospitalized defendant in the care of two psychiatrists in 1969 and 1970 and defendant had suffered from headaches during the months before and after the alleged offense. The court then requested and received a report from the Department of Corrections about defendant. The report stated that defendant had been examined by psychiatrists with the Department of Correction on three separate occasions between 1971 and 1974 and was found each time not to be suffering from any mental illness. Based upon this report the trial court denied the motion and the case proceeded to trial later in the same day. At trial defendant called no witnesses on his behalf.
The majority correctly cite People v. VanNorman, 364 Ill. 28, 2 N.E.2d 891, for the generally accepted rule that the granting of a continuance is within the discretion of the trial court and will not be disturbed in the absence of an abuse of discretion. However, the issue lies not with the rule, but with whether the trial court’s conduct, when joined with the previously quoted statements, constitutes the abuse of discretion that is proscribed by the rule. The defendant was entitled to rely on the assurances of the trial court that the case would be continued if defendant and his counsel were not ready for trial. A trial court cannot make statements which lulls the defendant in believing certain alternatives remain to him and then prohibit the defendant from exercising an alternative previously authorized. The defendant was assured on December 17 that the mere nearness of trial would not limit his ability to communicate with appointed counsel. It was not until Friday, January 3, three days before the beginning of trial on Monday, January 6, that defendant learned the trial court had changed its mind. Certain similarities exist in the case of People v. Brown, 13 Ill. App. 3d 277, 300 N.E.2d 831, which support the position that the trial court in the instant case abused its discretion.
In Brown the State waited for 77 days, until 20 days before trial, before responding to a request to produce a list of 28 prospective witnesses. The State agreed not to object to a defense request for a continuance to be presented on the day of trial. However on the court date, the prosecutor answered that he was ready for trial with his witnesses present. The trial court then denied defendant’s motion for a continuance. The appellate court, finding that the denial of a continuance had worked to defendant’s substantial prejudice, held that the trial court had abused its discretion in not continuing the case as the State’s Attorney had previously agreed to. If the failure of the prosecution to honor its commitment resulted in an abuse of discretion in the Brown case, how can the failure of the trial court in the case at bar to comply with its own representations be any less so.
The majority states that before there can be any finding of an abuse of discretion, it must appear that the refusal to grant additional time has in some manner embarrassed the defendant in his defense and thereby prejudiced his rights. I believe that defendant was embarrassed in his defense by the trial court’s refusal to grant defense counsel sufficient time to investigate the insanity defense. The trial court’s action meant, in effect, that defendant would present no defense since the details of the incident were not disputed. That the trial court made occurrence witnesses available to defense counsel for questioning before trial, was of little value, because the testimony of each witness was known to the defendant and defendant did not intend to contradict this testimony at trial.
The potential insanity defense was Summarily rejected by the trial court based on a psychiatric examination that had occurred prior to the incident involved. Apart from any question of the credibility of these reports, use of these earlier psychiatric examinations to defeat assertions of defendant’s insanity on the date of the robbery poses significant relevancy problems to me. The bizarre circumstances of the incident, as demonstrated in part by the well publicized picture of defendant holding a gun at the head of a robbery victim, at least suggests some mental infirmity. While such an infirmity might not have entitled defendant to acquittal, it was sufficient to warrant further attention.
The minimum contact the Public Defender had with his client could hardly be deemed sufficient to investigate and evaluate a potential insanity defense. The defendant’s rights were prejudiced when the trial court denied defendant’s motion for a new trial. In summary, I believe the trial court abused its discretion in denying defendant’s motion, and thereby denied defendant his right to effective assistance of counsel. The cause should be reversed and remanded for a new trial.