People v. Anderson

• Citation: 633 N.E.2d 699,198 Ill.Dec. 858,262 Ill.App.3d 349
• Decision Date: 29 September 1992
• Docket Number: 90-0632,Nos. 90-0384,s. 90-0384
• Parties: , 198 Ill.Dec. 858 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas ANDERSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 699

633 N.E.2d 699

262 Ill.App.3d 349, 198 Ill.Dec. 858

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas ANDERSON, Defendant-Appellant.

Nos. 90-0384, 90-0632.

Appellate Court of Illinois,

First District, Second Division.

Sept. 29, 1992.

Rehearing Denied Nov. 24, 1993.

[262 Ill.App.3d 351] [198 Ill.Dec. 859]

Michael J. Pelletier, Deputy Defender, Chicago (Pamela Z. O'Shea, Asst. Appellate Defender, of counsel), for defendant-appellant

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Michael Latz, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

Defendant, Thomas Anderson, who represented himself at trial, appeals from his conviction by a jury of armed robbery and aggravated battery on the grounds that the trial court: (1) violated his fifth amendment right to freedom from self-incrimination; (2) denied him a fair trial by interrupting his closing argument; (3) deprived him of an impartial trial by displaying hostility toward him, and (4) improperly considered evidence of a pending charge when sentencing him.

Defendant was charged by information with one count of armed robbery, two counts of aggravated battery and one count of armed violence in connection with the robbery of the Stop and Go grocery store at 12400 S. Normal in Chicago, Illinois. Subsequently, the State nolle prossed one count of aggravated battery and the armed violence count.

At trial, Mohammad Isa, the owner of the store at the time of the robbery, testified as follows. At about 9 a.m. on March 17, 1989, defendant, whom Isa had seen in the store on four or five previous occasions, entered the store. He brought two items to the counter, let a woman check out in front of him, and asked for some bandages which were located on a shelf behind the counter. After Isa got them for him, defendant asked for a different kind, which were located higher on the shelf. In order to reach the other bandages, Isa had to stand on a milk crate. When Isa turned around, defendant, who had stolen behind him, was holding a knife with a six-inch blade against his right side. Defendant told him not to move and pushed him up against the wall. Isa said that he didn't move because he felt the knife stick him and because defendant told him he had a gun. After defendant demanded money and Isa told him it was on the counter, defendant pushed Isa toward the cash register. Defendant picked up $60 to $70 from the counter, put it in his pocket and then asked for the money in the register. Isa told defendant that there was no money in the register, but opened it when defendant hit him on the arm with the knife. Defendant took approximately Walter Iverson, who was working for Isa at the time of the robbery, testified that when defendant, whom he had seen in the neighborhood on at least four previous occasions, entered the store, he asked Iverson how much money the store made. Iverson replied that he did not know. Iverson's testimony generally corroborates Isa's account of the events except that he did not see defendant actually pull the knife on Isa, since he was closing the door at the time. In addition, Iverson testified that he saw defendant get into a black car and that he remembered part of the license plate number.

[198 Ill.Dec. 860] $60 to $65 from the register and left. Isa pushed the silent alarm to notify the police.

When the police arrived, Isa and Iverson each gave them a description of the robber. Isa was taken to the hospital and received two stitches in his arm; the small cut on his side did not require stitches. Approximately one week later, Isa and Iverson picked defendant's photograph from an array brought to them by the police and they both identified him in a lineup at the police station.

Defendant was convicted and sentenced to concurrent terms of twenty-six years for armed robbery and five years for aggravated battery. The circuit court denied defendant's motion for a new trial; defendant appeals.

I.

As a preliminary matter, we note that the right to self-representation does not give a defendant license to disregard the relevant rules of substantive and procedural law, (Faretta v. California (1975), 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, n. 46, 45 L.Ed.2d 562, 581-82 n. 46, and that a defendant who represents himself is not entitled to favored treatment. People v. Fowler (1991), 222 Ill.App.3d 157, 163, 164 Ill.Dec. 770, 583 N.E.2d 686; People v. Amos (1990), 204 Ill.App.3d 75, 80-81, 149 Ill.Dec. 411, 561 N.E.2d 1107, appeal denied (1991), 136 Ill.2d 546, 153 Ill.Dec. 376, 567 N.E.2d 334.

Defendant's first contention of error is that the trial judge violated his fifth amendment right to freedom from self-incrimination by repeatedly telling him in front of the jury that he would have the opportunity to testify. Before reaching the merits of this issue, we must determine whether defendant has waived it. Although defendant admits that he did not properly preserve this error for review by failing to object at trial and in his post-trial motion (People v. Herrett (1990), 137 Ill.2d 195, 209, 148 Ill.Dec. 695, 561 N.E.2d 1), he urges us to review the issue as plain error. (107 Ill.2d R. 615(a).) That rule allows a reviewing court to consider improperly preserved errors affecting substantial rights in two situations: (1) "where the evidence in a criminal case is closely balanced * * * so as to preclude argument of the possibility that an innocent man may have been wrongly convicted[,]" and (2) "where the error is so fundamental and of such magnitude that the accused was denied a fair trial[,] [t]he rule [will be] invoked where it is necessary to preserve the integrity of the judicial process * * *." (Herrett, 137 Ill.2d [262 Ill.App.3d 353] at 209-10, 148 Ill.Dec. 695, 561 N.E.2d 1.) Because our review of the record indicates that the evidence is not closely balanced, we will focus our analysis on the second part of the plain error rule. In Herrett, our supreme court held that although a prosecutor's errors in improperly commenting on the defendant's post-arrest silence and failure to testify at trial "involve[d] constitutional rights, they [were] not of such a character that the second prong of the plain error rule [had to be] invoked to preserve the integrity and reputation of the judicial system." (Herrett, 137 Ill.2d at 215, 148 Ill.Dec. 695, 561 N.E.2d 1.) Regarding the comments on defendant's failure to testify, the court stated, "this court has held that an improper reference to the accused's failure to testify in his own behalf at trial is not an error that is so substantial that it deprives the accused of a fair and impartial trial. (People v. Whitehead (1987), 116 Ill.2d 425, 448 [108 Ill.Dec. 376, 506 N.E.2d 687].)" Herrett, 137 Ill.2d at 215, 148 Ill.Dec. 695, 561 N.E.2d 1.

Even assuming, as defendant urges us to do here, that he has not waived this argument because "a less rigid application of the rule requiring timely and proper objection and preservation of rulings thereon should During defendant's cross-examination of Isa the trial judge repeatedly instructed defendant not to testify while he was conducting his cross-examination. Four times, while admonishing defendant, the trial judge, in the presence of the jury, stated that defendant would have an opportunity to testify later. Defendant claims that the trial judge's remarks violated his rights "under the Fifth and Fourteenth Amendments to the Constitution." (U.S. Const. amends. V, XIV; Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.) In support of this position, defendant also cites the Illinois Constitution (Ill. Const.1970, art. I, § 2, 10) and several Illinois cases, and he notes that this constitutional principle has been codified into Illinois law in section 6 of "An Act to revise the law in relation to criminal jurisprudence. ¹ Ill.Rev.Stat.1989, ch. 38, par. 155-1.

[198 Ill.Dec. 861] prevail where the basis of the error is the conduct of the trial judge" (People v. Sprinkle (1963), 27 Ill.2d 398, 400-01, 189 N.E.2d 295; People v. Mays (1989), 188 Ill.App.3d 974, 983, 136 Ill.Dec. 489, 544 N.E.2d 1264), we cannot find in defendant's favor.

The State responds that "a defendant's right to remain silent is not violated unless a reference to his failure to testify, whether direct or indirect, is intended to direct the jury's attention to the fact that defendant chose not to exercise his right to testify." (People v. Thomas (1990), 137 Ill.2d 500, 528, 148 Ill.Dec. 751, 561 N.E.2d 57, cert. denied Thomas v. Illinois (1991), 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1196, citing People v. Dixon (1982), 91 Ill.2d 346, 350, 63 Ill.Dec. 442, 438 N.E.2d 180.) However, defendant, in maintaining that the State's argument that intent is the relevant inquiry, relies on cases involving comments made only by prosecutors, and cites People v. Crabtree (1987), 162 Ill.App.3d 632, 114 Ill.Dec. 52, 515 N.E.2d 1323, in support of the proposition that intent is not dispositive in cases involving comments made by the court. In Crabtree, the trial judge told the defendant in the presence of the jury, "If you disagree with something you can take the stand and testify yourself." The reviewing court held, without any discussion of, or reference to, intent, that the trial judge's comments constituted error. Crabtree, 162 Ill.App.3d at 634-36, 114 Ill.Dec. 52, 515 N.E.2d 1323; see also People v. King (1972), 4 Ill.App.3d 942, 944, 282 N.E.2d 252, which holds that the trial judge's comment that "Well, I think your client is here, he can--he is here to deny it, he can testify[,]" was constitutional error.

We are not prepared to disregard the judge's intent in determining whether error occurred. Therefore, in examining the judge's comments in the context of the entire proceeding, as we must (People v. Arman (1989), 131 Ill.2d 115, 126, 137 Ill.Dec. 5, 545...