People v. Johnson

• Decision Date: 14 July 1978
• Docket Number: No. 14621,14621
• Citation: People v. Johnson, 378 N.E.2d 786, 61 Ill.App.3d 819, 19 Ill.Dec. 171 (Ill. App. 1978)
• Parties: , 19 Ill.Dec. 171 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eugene Wayne JOHNSON, Jr., Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 786

378 N.E.2d 786

61 Ill.App.3d 819, 19 Ill.Dec. 171

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eugene Wayne JOHNSON, Jr., Defendant-Appellant.

No. 14621.

Appellate Court of Illinois, Fourth District.

July 14, 1978.

Richard J. Wilson, Deputy State Appellate Defender, Barbara A. Chasnoff, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Thomas J. Fahey, State's Atty., Danville, Robert C. Perry, Deputy Director, State's Attys. Appellate Service Commission, Marc D. Towler, Staff Atty., Springfield, for plaintiff-appellee.

GREEN, Presiding Justice.

Defendant Eugene Wayne Johnson, Jr., appeals judgments convicting him of the offenses of battery and cruelty to children and sentencing him to 1 to 3 years' imprisonment, entered against him by the circuit court of Vermilion County after a trial by jury. He cites various claims of error but we need discuss only his claim that he was deprived of his right to effective assistance of counsel.

During the presentation of the State's case, the trial judge became convinced that the defendant was not receiving competent representation by his privately retained counsel. The judge called the prosecutor, defendant and defense counsel into chambers and recited his observations into the record. He then informed defendant that he, defendant, had a right to be represented by counsel of his own choosing and that if he wanted to continue the case with his present counsel, he could do so but that by doing so he would be waiving the issue of the competency of his counsel. The judge also informed the defendant that, on the other hand, if defendant wished, the court would declare a mistrial and give him an opportunity to obtain counsel of his own choosing to represent him at a new trial of the case. The defendant was also informed that if he was indigent and could not afford counsel, the court would appoint counsel to represent him free of charge. The court then called a short recess telling the defendant that he could consult with his present counsel and his family as to what he wished to do. At the conclusion of the recess, the defendant told the court that he wished to continue with his existing counsel. The case then proceeded.

We accept the concerned trial judge's determination that the conduct of the defense was incompetent. He was in a much better position than we are to so decide. Some of the bases for his decision arise from situations that cannot be fully reflected in the record.

The trial judge was placed in a difficult position. Defendant had a constitutional right to be represented by competent counsel. (Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.) He also had a right to counsel of his own choosing. In People v. Friedrich (1960), 20 Ill.2d 240, 169 N.E.2d 752, the supreme court ruled that right to have been violated when a trial court denied the request of an accused that a lawyer having an interest conflicting to that of the accused be permitted to represent him. In Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 562, the court ruled that upon proper waiver of counsel, an accused has a right to proceed Pro se. Thus, in the instant case, unless a valid waiver of the claim of incompetency of counsel could be obtained from the defendant, any position that the court took would have undesirable consequences. If the trial proceeded to verdict, any conviction obtained would have to be set aside for incompetency of counsel. On the other hand, if a mistrial were declared and defendant ordered to get new counsel, defendant might have been deprived of his right to counsel of his own choice.

No case telling us what the trial judge should have done...