People v. Smith
| Decision Date | 18 August 1993 |
| Docket Number | No. 2-92-0017,2-92-0017 |
| Citation | 619 N.E.2d 799,249 Ill.App.3d 460,189 Ill.Dec. 98 |
| Parties | , 189 Ill.Dec. 98 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stuart I. SMITH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Thomas A. Lilien, Asst. Defender, Office of State Appellate Defenders, Elgin, for Stuart Smith.
David R. Akemann, Kane County State's Atty., Geneva, William L. Browers, Deputy Director, Martin P. Moltz, State's Atty. Appellate Prosecutors, Elgin, for the People.
Defendant, Stuart I. Smith, was convicted after a bench trial in the circuit court of Kane County of one count of burglary (Ill.Rev.Stat.1989, ch. 38, par. 19-1 (now 720 ILCS 5/19-1 (West 1992))). He was sentenced to an extended term of 10 years' imprisonment, and he thereafter filed a timely appeal. In this court, defendant argues (1) that the trial judge erred to defendant's prejudice by denying him the right to present closing argument at trial; (2) that his appointed counsel abdicated her responsibility at trial when she complied with defendant's request to refrain from cross-examining three State witnesses; (3) that the trial judge improperly limited the role of standby counsel in post-trial proceedings; and (4) that the judge erred to defendant's prejudice when he did not obtain a proper waiver of defendant's right to counsel before defendant proceeded pro se at sentencing.
As defendant does not challenge the sufficiency of the evidence to convict him, we will not recite it in detail. In short, defendant was arrested in the early morning hours of October 28, 1990, near the scene of a break-in at a gas station in Aurora, Illinois. A side window of the gas station had been smashed and cartons of cigarettes taken. When defendant's vehicle was pulled over, a large garbage can filled with cartons of cigarettes was lying on its side in the backseat, and rubber gloves were lying on the front seat. Defendant subsequently confessed to smashing the gas station's window and absconding with a garbage can full of cigarettes which he planned to sell for $8 to $10 per carton to support himself and the drug habit he incurred in Viet Nam.
Defendant was originally represented at trial by the public defender's office, but they came to a parting of the ways after defendant filed a complaint with the Attorney Registration and Disciplinary Commission. A private attorney (defense counsel) was then appointed to represent defendant at trial.
Defendant's trial began on May 17, 1991. Because one State witness was then unavailable, the parties agreed that the trial would be completed on June 28. Before the trial got started, defense counsel told the court that defendant had asked her to cross-examine State witnesses, but that defendant wanted to present his defense himself. Following a recess after the first three State witnesses had testified, the following discussion took place:
Defense counsel cross-examined the next witness, the owner of the gas station, on defendant's request, but did not cross-examine the remaining three witnesses who testified that day, all of whom were Aurora police officers.
When the trial resumed on June 28, defendant informed the court that he wanted defense counsel to assume standby status so he could handle his case largely by himself. He engaged in a very abbreviated cross-examination of the State's last witness, another Aurora police officer. The State then rested and defendant moved for a directed finding, claiming that the State had not proven its case because there was no evidence placing him inside the gas station. Defendant argued that the proof, at best, showed theft by possession. The court denied the motion and then denied defendant's motion to quash the indictment after extended argument by defendant.
The court asked defendant if he had any evidence to present. The defendant replied in the negative and rested. The court then announced that there would be a finding of guilty. After a short discussion about post-trial motions, the trial judge asked defendant how he would be utilizing defense counsel. Defendant responded that he would like her assistance "here in court and possibly informally in my motion for arrest of judgment." Defense counsel then asked about her role in the upcoming proceedings:
Defense counsel appeared with defendant on the date originally set for sentencing September 13, 1991. She wrote a motion for new trial with defendant at the start of the hearing. Defendant argued the motion, and it was denied. The State called a witness in aggravation and argued for an extended sentence. Defendant did not argue in response. The case was continued until October 23 for a TASC evaluation of defendant.
On October 23, defense counsel argued that the court should order drug treatment for defendant. The TASC evaluator was not present and the case was continued until the court could hear from TASC.
On October 29, a TASC evaluator testified that defendant was unacceptable for TASC. Defense counsel appeared with defendant. The court ordered a psychological evaluation of defendant. Defendant asked defense counsel to file a petition which alleged, inter alia, that defense counsel was ineffective. Defense counsel sought to withdraw, but defendant still desired her assistance.
Defendant and defense counsel appeared before the court on January 2, 1992. Defendant had refused to meet with a psychologist and requested that he be sentenced so he could start post-conviction proceedings. When asked whether he wanted defense counsel to stay, defendant replied, Defense counsel was then excused and defendant was given an extended sentence of 10 years' imprisonment.
Defendant's first claim is that he was prejudiced and denied his right to defend against the charge when the trial judge declared him guilty after he rested his case, without affording him an opportunity to present closing argument. The State replies that defendant was not denied an opportunity to defend against the charge because the finding of guilt occurred only moments after defendant presented pro se argument on his motion for a directed finding and immediately after defendant rested without offering any evidence on his behalf. The State claims that defendant probably saw no reason to repeat the argument he had just made, and that if defendant had wanted to present closing argument he would have asked to do so. Finally, the State argues that defendant waived this issue by failing to object at trial or include this issue in his post-trial motion.
Defendant has not waived the issue. The right to present closing argument at trial is of constitutional magnitude, regardless of whether the trial is before a judge or jury or whether the defendant is represented by counsel or represents himself. (Herring v. New York (1975), 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593.) We may address an alleged defect that affects substantial rights under an exception to the general rule that issues not brought to the attention of the trial court are waived for purposes of appeal. 134 Ill.2d R. 615(a); People v. Moman (1990), 201 Ill.App.3d 293, 309, 146 Ill.Dec. 897, 558 N.E.2d 1231.
Defendant cites Herring in support of his claim. In that case, the United States Supreme Court found unconstitutional a New York State statute which allowed judges presiding over criminal bench trials to deny closing argument before the entry of judgment. (Herring, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593.) Herring is distinguishable, in that Herring concerned a blanket legislative finding that closing arguments are extraneous.
Cases considering the question of denial of the right to present closing argument have discussed the question in terms of the right to appear and defend (People v. McMullen (1921), 300 Ill. 383, 389, 133 N.E. 328), the rights to due process and a fair trial (People v. Diaz (1971), 1 Ill.App.3d 988, 992, 275 N.E.2d 210) and the right to effective assistance of counsel (People v. Smith (1990), 205 Ill.App.3d 153, 156-57, 150 Ill.Dec. 23, 562...
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