People v. Partee

• Decision Date: 26 May 1987
• Docket Number: No. 84-2067,84-2067
• Citation: 110 Ill.Dec. 845,511 N.E.2d 1165,157 Ill.App.3d 231
• Parties: , 110 Ill.Dec. 845 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ellis PARTEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1165

511 N.E.2d 1165

157 Ill.App.3d 231, 110 Ill.Dec. 845

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ellis PARTEE, Defendant-Appellant.

No. 84-2067.

Appellate Court of Illinois,

First District, Second Division.

May 26, 1987.

As Modified on Denial of

Rehearing July 21, 1987.

Steven Clark, Deputy Defender, Office of the State Appellate Defender, Chicago (Richard F. Faust, Asst. State Appellate Defender, of counsel), for defendant-appellant.

Richard M. Daley, Cook County State's Atty., Chicago (Thomas V. Gainer, Jr., James E. Fitzgerald, Sally J. Bray, Asst. State's Attorneys, of counsel), for plaintiff-appellee.

Justice STAMOS delivered the modified opinion of the court upon the denial of the petition for rehearing:

Defendant was convicted of attempt armed robbery and three counts of aggravated battery after a jury trial in which defendant appeared pro se. He was sentenced to extended terms of 30 years for attempt armed robbery and 10 years for each count of aggravated battery to run consecutively. Defendant now raises numerous issues on appeal.

Defendant was arrested on February 20, 1983, and charged with attempt murder, attempt armed robbery, and three counts of aggravated battery. On July 12, 1983, defendant and his counsel appeared before Judge Frank Orlando. Defendant's counsel requested to withdraw as counsel and defendant requested an automatic substitution of judge. Both motions were granted and the cause was assigned to Judge Lester Bonaguro. Defendant was thereafter represented by a public defender and was assigned to Judge Rosaland M. Crandell on October 7, 1983, due to Judge Bonaguro's ensuing transfer. On October 18, 1983, Judge Francis Glowacki heard a second motion by defendant for substitution of judge for cause alleging prejudice to defendant by Judge Crandell. The motion was stricken by the court which found that it inadequately set forth a basis for substitution of judge. On October 18, 1983, defendant again appeared before Judge Crandell to request an extension of time to retain private counsel to represent him. The court granted defendant a one-week extension. On October 25, 1983, defendant appeared again before Judge Crandell and asked to act as his own attorney. Judge Crandell granted defendant's request but asked the two public defenders present to remain in an advisory capacity. On November 1, 1983, defendant requested the court to appoint Public Defender Allan Sincox to act as his attorney. Judge Crandell granted the request and set November 16 for the hearing on motions.

On November 28, 1983, defense counsel presented a motion for substitution of judge as a matter of right, rather than for cause as argued previously. Defense counsel argued that defendant was entitled to two substitutions of judge under section 114-5 of the Illinois Criminal Code because he was charged with a Class X felony. Counsel maintained that such substitution of judge need not be filed at the same time. The State asserted in reply that defendant's case had been on the call of three prior judges and that defendant had failed to file a motion for substitution of judge within the required ten days. At the close of all arguments, Judge Crandell held that in an effort to avoid any problems which might void all subsequent proceedings, and with the understanding that this would be the final substitution allowed, it would assign the defendant's case, based upon the presiding judge's authority, to Judge Cohen. However, on December 8, 1983, upon the State's motion for reconsideration Judge Crandell reversed her previous decision to reassign the case. Judge Crandell subsequently presided at defendant's trial.

On April 23, 1984, defendant appeared before the court and asked that Public Defenders, Allan Sincox and Dale Coventry, be placed in an advisory role and that he be allowed to represent himself. Defendant was advised of his rights under Supreme Court Rule 401 concerning the waiver of counsel and was directed to execute a written waiver. Moments later, defendant moved to act as co-counsel to the public defenders who would continue to represent him. On April 30, the court reviewed defendant's pro se request and appointed Public Defender Gino Peronti to act as standby counsel.

On May 2, 1984, defendant again moved to substitute Judge Crandell for cause. Judge Crandell reassigned the cause to Judge Kavitt who presided at a hearing on defendant's motion. During this hearing, defendant also advised the court that he wished to be represented by Public Defenders Sincox and Coventry. Counsel argued defendant's motion for substitution of judge, citing various incidents which defendant maintained prejudiced Judge Crandell against his case. Judge Kavitt denied defendant's demand that Judge Crandell testify or submit an affidavit to explain her acts, finding that the applicable statute required neither. Judge Kavitt then denied defendant's motion, finding that defendant made no showing that Judge Crandell was prejudiced and could not give defendant a fair trial. After this hearing, defendant returned to Judge Crandell's courtroom and advised the judge that he wished to return to pro se status.

Thereafter, at defendant's request, the court granted him permission to make daily telephone calls and to visit with material witnesses, and allowed defendant to have access to the law library. On May 11, 1984, the trial court denied defendant's request to appoint Randolph Jonakait, an attorney and author of a law review article on serology, as an expert for the defense. Emmett Harmon, a biochemist and serologist was subsequently appointed by the court. The court also denied the appointment of Kathy Bennett, a jury expert, to assist defendant during voir dire, and denied the appointment of a private investigator to assist defendant. The court recommended the appointment of a staff psychiatrist to assist defendant in his alleged insanity defense, but defendant rejected this offer.

On May 11, 1984, after defendant reaffirmed his wish to represent himself, the trial court denied his request to appoint Coventry and Sincox as standby counsel. The court then made certain findings as to defendant. It found that defendant was under no mental disability, and that he knowingly and intelligently elected to proceed in his own defense. The court also found that defendant understood the nature of the charges and the seriousness of the possible penalties for those charges.

On May 14, 1984, the court received a letter from the director of the Cook County jail, explaining that defendant's requests for unlimited telephone calls and visits from material witnesses could not be complied with, explaining that such allowances had never been made for other inmates and would cause great disruption.

When voir dire began on May 30, 1984, defendant appeared in court without shoes, claiming that he was rushed by jail officers to get ready. The court requested a deputy sheriff to get shoes for defendant. Thereafter defendant again asked the court to appoint standby counsel. The court denied defendant's request, commenting that it would either allow defendant to appear pro se or to be represented by a public defender, but would not allow a "hybrid" as such method was unsuccessful in the past. The court also remarked that it had repeatedly explained this matter to defendant and defendant had elected to proceed pro se.

Under voir dire, two prospective jurors indicated that they had reservations about the fact that defendant had access to personal information regarding themselves and their family, particularly their addresses, through their jury cards. When questioned by the court whether their concerns would affect their ability to be fair and impartial, both responded that it would not. Over defendant's objection, their addresses were deleted from their jury cards.

Before the entire jury had been selected, defendant exhausted the ten peremptory challenges allotted to him. Defendant requested five additional challenges, but was denied such request. Defendant later complained that eight of the veniremen who had been excused, apparently by the State, were black. Defendant also objected to the excusing of one venireman, apparently also black, at the juror's request that he had to attend to a sick relative and could not give his full attention to the trial.

Defendant's trial commenced on June 1, 1984. Defendant appeared in a jogging suit and claimed that he was compelled to do so by a prison official who refused to allow him to bring a change of clothing. Defendant maintained that it was his practice to wear a jogging suit to the court building and to then change into civilian clothes. The court noted that defendant had not had this problem on his 60 prior court visits and admonished him to thereafter dress appropriately.

The victim, Gladys Peterson, testified that on February 20, 1983, at approximately 12:15 p.m., she arrived at Woodfield Shopping Center in Schaumburg, Illinois, to pick up her mother. As she searched for a parking space, she observed a man, identified as defendant, standing near a parked car. She parked nearby and began to exit her car when she looked up to see defendant standing outside the car, preventing her from opening or closing the door. Defendant told her "Stay in the car. This is a robbery." Peterson pushed defendant and knocked off his sunglasses, then began to scuffle with him. She sounded her horn and the struggle continued. Defendant ordered the victim to lie down and punched her in the throat. Peterson told defendant that she had no money to which defendant responded "All right, I am going."

When defendant left, the victim again sounded her horn. She saw a man standing nearby, identified later as Edwin Florian, and asked him for help. She then realized that she was covered with blood. Peterson was transported by paramedics to the hospital. Peterson suffered permanent scarring along her...