dissenting:
A now deceased reviewing court judge when asked when he dissented answered, when my outrage overwhelms my inertia. This is such a case. Although the record is not flawless, the trial court did not err as asserted by the majority. The defendant never knowingly and intelligently waived his right to counsel. (Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 581, 95 S. Ct. at 2541.) Contrary to the majority position, the defendant’s behavior from the beginning of the proceedings was disruptive and obstructive. The majority reviews some of the proceedings of the trial court concerning defendant’s request for other counsel or desire to represent himself. I might only say that based upon what is stated in the majority decision with respect to the trial transcript, if the defendant had filed an appeal alleging that he had been deprived of his right to counsel, we would reverse posthaste.
Initially, the issue was not brought to the trial court’s attention in defendant’s post-trial motion. For this reason alone, the issue is waived (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), unless it falls within the limited exception of plain error affecting substantial rights (134 Ill. 2d R. 615(a)). This is not such a case.
The defendant first appeared in court on November 14, 1989, when he was arraigned and indicated to the court that he would appreciate a bar association attorney and did not want a public defender. He further indicated “I’m a two time loser. I feel that a public defender wouldn’t represent me to the fullest.” The trial court told the defendant that he did not have a choice between a bar association lawyer and a public defender, but that he could refuse a lawyer altogether. The defendant responded, “If it comes to that, that’s what I’ll do then.” The court at that time appointed the public defender to represent the defendant. Again, on November 22, 1989, the defendant appeared for further arraignment. The defendant waived reading of the charges, entered a plea of not guilty and filed a motion for discovery. The court advised defendant of his right to speedy public trial. The court also advised the defendant that Mr. Ahlemeyer, apparently his attorney, was going to file a motion to change venue. Respondent indicated he understood and that was what he wanted to do. It should be pointed out that at this hearing, defendant made no objection to his representation by Ahlemeyer as public defender. On December 22, 1989, there was a hearing at the request of the public defender for the purpose of determining his further representation of the defendant in the case. The trial court indicated to the defendant that he did not have the right to name the attorney that would represent him. The defendant indicated that he just did not trust the public defender. The trial court indicated that if there was a personality conflict between Ahlemeyer and the defendant, the court would appoint another public defender to represent the defendant, stating:
“If you want to fire Mr. Ahlemeyer, I will let you do that, but if you do, you will be representing either yourself as your own lawyer or you will have to hire a private lawyer. Okay. I am not going to force you to take Mr. Ahlemeyer, if you don’t want him, but if you don’t want him, then you are going to be your own lawyer.”
The defendant responded: “I am going to be my — I ain’t went to school to know the law.” Defendant further stated, “I don’t appreciate being between a loaded shotgun and Mr. Ahlemeyer. Either way I go, I am going to lose.” The court indicated it would take the matter of Ahlemeyer’s representation up again at the next hearing and also indicated, “unless you can come up with something stronger than that, that is not good enough for me under the law to get rid of Mr. Ahlemeyer unless you get rid of him and say fine, I will represent myself.”
Another hearing was held on January 8, 1990, upon the defendant’s motion for change of venue. The motion for change of venue was denied. The court again addressed the defendant: “Mr. Ward, what is your present position as far as counsel is concerned?” The defendant responded that his position was not different, and was the same as the last hearing. The defendant reiterated his feeling that he just did not trust Ahlemeyer as his attorney. The court addressed the defendant: “[I]f I discharge Mr. Ahlemeyer, leaving you with two options. First, that you represent yourself.” The defendant responded: “I am not going to represent myself. I don’t know how to represent myself.” The defendant, in that hearing, further responded with respect to Ahlemeyer’s representation, “Like I don’t have any problem with Ahlemeyer. Like I told him what disturbs me everytime I try to explain my situation it seems like he more leaning to the other side like he was defending the other side.” Further hearing was set for February 13, 1990, and at that time the defendant appeared in court with a representative of the public defender’s office, Paul Mason. The defendant indicated to the court that his present attorney, Mason, told him from the discovery that there was no doubt in his mind what the impact was going to be on the jury’s mind. The court asked, “Did he tell you for that reason I am not going to represent you, I will not call witnesses?” Defendant responded, “No. He did not tell me that.” The court indicated to the defendant that Ahlemeyer and Mason were experienced attorneys, and the defendant’s only response was that because they had told him he could not win the case, “all I am going to ask you is that I will file a motion to represent myself but I am not going to be held accountable for anything that goes wrong in the case because I don’t know anything about the law.” (Emphasis added.) The court indicated that the defendant had the right to make the request and a constitutional right to defend himself. The defendant responded that he was forced because he had no choice. Specifically, defendant said, “I am saying if I am going to be charged with a case and I be appointed a lawyer. That is all I want is a fair representation. That is all I want.” As stated in the majority opinion, the court then went through the questioning of the defendant, which showed that the defendant had gone through the tenth grade in school, was able to read and write, had worked on some legal motions in other court cases which were civil cases; he had filed civil lawsuits in his own behalf, but had never tried to represent himself before; he had tried to do the best he could with the law library, but indicated he had not researched problems before, he did not know anything about researching the law, and that he had never actually gone through a trial where he represented himself. He further acknowledged that he did not know anything about the rules of evidence which apply in criminal cases, he had never tried a case or picked a jury by himself, he had never called witnesses into court and questioned the witnesses, and he had never presented an argument to the jury or prepared instructions to be given to the jury in a criminal case. The court stated: “I am not going to discharge court appointed counsel. So you will have an attorney representing you.” Because the defendant was in Stateville Correctional Center, the court was concerned that his attorney would not be able to talk to the defendant. The court stated he would have to “writ the defendant down” to which the defendant responded: “I would expect to talk with him today and I think if necessary, I can write him back.” At the close of the hearing, defendant was asked if there was “anything you don’t understand or want to say for the record or anything else you want to add?” to which the defendant responded, “No, sir.”
On March 23, 1990, defendant filed several pro se motions, including a motion for withdrawal of the appointed public defender and a motion for the appointment of a bar association lawyer. With respect to the motion for appointment of bar association lawyer, defendant stated he was indigent, without the financial resources to retain counsel to represent him in his defense, and that he had a Federal and State constitutional right to effective assistance of counsel. Although defendant stated at the February 13 hearing he would file a motion to represent himself, he did not do so. In none of defendant’s pro se motions did he indicate he desired to proceed pro se.
A further pretrial hearing was held on April 2, 1990. The protracted hearing dealt generally with the presentation of witnesses and specifically the desire of the defendant to call a witness named Dr. Shansky. The record of that hearing does not show any request by the defendant to represent himself, but merely his disagreement with the way in which his appointed attorney was handling his ease in the pretrial stages. The trial court denied the pro se motions.
After the April 2 hearings, defendant on April 9, 1990, filed another pro se pleading asking the court to reconsider its denial of his motions as to the methods of discovery, to withdraw appointed counsel, and for appointment of a bar association lawyer. Again, defendant never mentioned his desire to proceed pro se.
The defendant’s jury trial began on April 9, 1990. After some preliminary matters, the defendant indicated he did not have a lawyer and that, just because the public defender was present in court with him, “He can’t be my attorney.” The court told the defendant again that he had the right to proceed without a lawyer. The trial court told the defendant:
“[F]rom Judge Glennon’s docket entries, there is — apparently you have never given them a reason why Mr. Ahlemeyer or now Mr. Mason can’t represent you. Do you wish to tell me anything now concerning why Mr. Mason is not your lawyer? Is there anything you want to tell me on the record now before we start the jury trial?”
Defendant stated it was already on the record as to why he did not want Mason to represent him. The trial court reviewed the proceedings and stated, “I find no reason stated why Mr. Mason cannot represent you.” The prosecutor suggested that the record clearly reflect the defendant’s right to proceed pro se. The defendant said, “I will represent myself.” The court in response, “Okay. If you do that, I will — if you ask for that, I will discharge Mr. Mason. Mr. Mason will not represent you. And I will expect you to follow the rules of law, all of the rules.” And the court told the defendant, “If you want to represent yourself, that is fine. That is your choice. But I will expect you to understand the rules of evidence, the rules of procedure.” The defendant continued his disruptive behavior. His nonresponsive answer was, “Why don’t you just leave me in the bull pen then?” After further questions to the defendant, the court stated, “Okay. I think I am going to simply find he is too disruptive, too argumentative at this point to intelligently make a decision on whether he wishes to proceed pro se or be present.” Although the defendant indicated he would rather be in “the bull pen,” the record shows the defendant was present during the proceedings at trial.
The public defender actively participated in the trial and conducted extensive cross-examination of the State’s witnesses. At the close of the prosecutor’s case, the defendant’s attorney informed the court as follows:
“I talked with Mr. Ward over the lunch recess, and he advised me that he did not want to take the stand. He also advised me that he did not want Jerrico Smalley to take the stand as a witness. And Smalley is here at the courthouse at this time. And based on his instructions, I will not be calling those people. I believe that the defendant would have some comments that he wants to make about that decision. And I would request you to let him make those comments.”
The court allowed the defendant to respond:
“I was advising Paul Mason that the statement that I was not allowed to bring out in my discovery since constantly and repeatedly being brought out now at trial, I will not take the stand, or I won’t allow my witness to take the stand because on the ground that these here — they constantly bringing out the statement that I tried to put on discovery.”
The court also asked the defendant, “Is there something that you wanted to tell the jury that you are not being allowed to?” To which the defendant responded, “No. It is not really that. I believe strongly that if that would have been admitted in a discovery, that would have gave Paul Mason a better idea and investigate the case more.” The court then again asked the defendant, “Have you discussed this with Mr. Mason, and you have decided not to testify, not to call Mr. Smalley?” to which the defendant responded, “Yes.” The court then asked, “And not to call anyone else?” Defendant responded, “Yes.” The court said, “Is that your choice?” and the defendant responded, “Yes.” Defendant’s attorney then responded that they had no evidence to present. With presentation of evidence completed, the conference on jury instructions held, and the jury properly instructed, the jury retired and returned a verdict finding the defendant guilty. The record shows the trial proceeded in an orderly fashion regardless of the disruptions by the defendant. The defendant made no objections to the court as to the effectiveness of his counsel and was allowed to address the court. Defendant’s attorney filed an extensive post-trial motion. In his post-trial motion, defendant did not assert as error the failure to allow him to proceed pro se. The post-trial motion did assert error in denying defendant’s motion to discharge the public defender and “advising defendant that his only choices were to accept Mr. Mason as attorney or to proceed on the case pro se.” A review of the record clearly shows defendant never wanted to proceed pro se.
The defendant’s post-trial motion was denied and, at sentencing hearing, when defendant was given his right to allocution, he indicated he did not desire to say anything.
On the merits, I agree the test is not who would do a better job, defendant pro se or appointed counsel. But this is not the issue. Contrary to the majority’s position, the record is not clear that, when defendant was informed by the trial court that his only choices were to represent himself or continue with court-appointed counsel, he indicated a clear desire to represent himself.
Although defendant said he would file a motion to represent himself, none of the- pro se motions filed made such a request. As pointed out, at the February 13 hearing, defendant stated he would file a motion to represent himself. He subsequently filed several pro se motions and never mentioned his desire to represent himself. Defendant did not want to represent himself. He wanted a choice of attorneys.
I agree with the proposition, cited by the majority, stated in Davis:
“[T]he trial court must determine whether the defendant has the requisite capacity to make an intelligent and knowing waiver of his right to counsel. The criteria generally considered in making that decision include the defendant’s age, level of education, mental capacity and prior involvement, if any, in legal proceedings.” (Davis, 169 Ill. App. 3d at 6, 523 N.E.2d at 168.)
The trial court, at various hearings, inquired of the defendant as to his ability to conduct his own defense. The record is clear the defendant stated he could not do this. This is simply a case where the defendant did not want court-appointed counsel but wanted to participate in the decision as to who his counsel would be.
In Faretta, the defendant responded to the court’s questions indicating that he knew how to handle the trial of the case and was able to make a knowing and intelligent waiver of his right to counsel. This is not the case here. As stated in Faretta:
“Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” (Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 582, 95 S. Ct. at 2541.)
I do not agree that Kavinsky, Graves, and Siler were incorrectly decided. Here, the trial court did not err, the issue on appeal is without merit, and the circuit court of Livingston County should be affirmed.