People v. Kosyla

JUSTICE REINHARD,

concurring in part and dissenting in part:

While I will not attempt to summarize the lengthy pretrial proceedings below relating to defendants’ right to counsel argument, in substance, both defendants steadfastly refused the appointment of the public defender. They insisted on going to trial and standing mute, against the warnings of the trial court, if their demand for counsel other than the public defender was not complied with, and repeatedly informed the court that they were not undertaking their own representation. On this record, I would disagree with the majority opinion which concludes that error was committed because Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)) was not followed and that the trial judges should have appointed the public defender even over defendants’ objections.

From my examination of the record, the defendants clearly and repeatedly declined to undertake their own representation. Rule 401(a) is inapplicable under this circumstance, and the court was not required to admonish defendants in accordance with Rule 401(a). (See People v. Myles (1981), 86 Ill. 2d 260, 267-69, 427 N.E.2d 59.) Although the defendants persistently refused the offer of the court to have the public defender represent them and instead asked for counsel other than a lawyer who was employed by the Lake County government, an indigent defendant has no right to choose among appointed counsel. (People v. Thicker (1981), 99 Ill. App. 3d 606, 610-11, 425 N.E.2d 511.) An indigent defendant is entitled to counsel other than the public defender only upon a showing of good cause. (99 Ill. App. 3d 606, 611, 425 N.E.2d 511.) No such good cause was shown here, and there was no abuse of discretion in denying appointment of counsel other than the public defender.

Finally, with respect to defendants’ argument on appeal that the public defender should have been appointed even over their objections, I regard that argument as waived by defendants’ own actions. They at all times refused the appointment of the public defender and have not argued on appeal that they at any time before, during, or after the trial requested the standby aid of the public defender. Generally, the right to counsel cannot be employed as a weapon to indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime. (People v. Friedman (1980), 79 Ill. 2d 341, 349, 403 N.E.2d 229; see also People v. Taylor (1984), 101 Ill. 2d 508, 523-24, 463 N.E.2d 705.) Under the unique circumstances here, I would conclude that defendants, by their actions, waived both their right to counsel and any contention on appeal that the public defender should have been appointed over their persistent objections. (See United States v. Moore (5th Cir. 1983), 706 F. 2d 538.) An accused should not enhance the probability of having his conviction reversed by persisting in obdurate, obstructionist tactics of the kind engaged in below.

I would affirm all the convictions below except Stanley Kosyla’s conviction for escape, which I agree with the majority should be reversed.