People v. Vanderwerff

• Decision Date: 24 January 1978
• Docket Number: No. 76-1367,76-1367
• Citation: 14 Ill.Dec. 735,57 Ill.App.3d 44,372 N.E.2d 1014
• Parties: , 14 Ill.Dec. 735 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary B. VANDERWERFF, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1014

372 N.E.2d 1014

57 Ill.App.3d 44, 14 Ill.Dec. 735

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary B. VANDERWERFF, Defendant-Appellant.

No. 76-1367.

Appellate Court of Illinois, First District, Second Division.

Jan. 24, 1978.

Howard Ross, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., County of Cook, Chicago, for plaintiff-appellee; Laurence J. Bolon, James S. Veldman, Louis R. Schroeder, Asst. State's Attys., of counsel.

PUSATERI, Justice:

Defendant, Gary B. Vanderwerff, was charged by complaint with two counts of battery. Following a bench trial in the circuit court of Cook County, the defendant was found guilty on both counts and sentenced to a term of 270 days in the Illinois Department of Corrections.

Defendant appeals, contending: (1) that he did not knowingly and intelligently waive his Sixth Amendment right to counsel; (2) that the State committed prejudicial error by referring to defendant's previous record prior to trial; (3) that the trial court's bias, impatience and hostility toward the defendant and his witness denied him a fair trial; and (4) that the trial court improperly heard the case after it became evident that the defendant was unable to competently defend himself.

These complaints arose from a collision occurring at approximately 2:00 a. m. on September 2, 1975. A brief summary of the facts adduced at trial reveals that the defendant's vehicle collided with an automobile occupied by the two complainants. At trial, complainant Robin Hendron, testified that she and a friend were driving in the vicinity of Forsythe and 154th Place in Calumet City, when they were struck from behind while stopped at a stop sign, by the defendant's vehicle. The vehicle driven by the defendant sped away, went around the block, and returned. The defendant exited his vehicle, appeared "drugged" and "seemed to go crazy" when complainant Hendron accused the defendant of hitting her vehicle. He began "yelling" and hit the complainant in the mouth and face with his fist.

Complainant, Christie Paylo, corroborated Hendron's testimony. In addition to those facts she stated that the defendant choked her after she alighted from the vehicle driven by Hendron.

Officer Swanson, arrived on the scene and found the defendant fighting with another man and several other people fighting in the street. He detected a moderate odor of alcohol on the defendant's breath, later gave the defendant tests to determine whether he was driving under the influence of intoxicating liquor and discovered that the defendant staggered and that his speech was slurred. Officer Swanson concluded that in his opinion the defendant was intoxicated and unfit to drive a motor vehicle. The defendant was charged with driving under the influence of intoxicating liquor; however, he was found not guilty of this offense.

The defendant conducted his own pro se defense. He did not cross-examine any of the State's witnesses and testified in his own behalf at the close of the State's case. The defendant testified that he had been talking to the complainants in a bar; after they left, his vehicle was struck by Hendron's vehicle as she tried to pass him on the right. The defendant denied ever physically striking either complainant.

The only witness for the defense, Mike Mada, testified that he was a passenger in the vehicle driven by the complainant Hendron. He stated that both complainants were "kind of drunk," and that the collision occurred when Hendron's vehicle attempted to pass the defendant's automobile but struck it instead. The State asked this witness whether he considered the defendant a good friend and inquired as to whether he would commit perjury for him.

Prior to trial the following colloquy ensued between the court and the defendant:

"THE CLERK: Gary Vanderwerff.

THE COURT: Ready for trial?

THE DEFENDANT: Yes, sir.

MR. ARTHUR (Prosecutor): The defendant should have a lawyer. There are serious charges. For the purpose of this hearing, if you want to hear the defendant's background, I intend to ask for time.

THE COURT: Do you wish the public defender? Can you afford to hire a lawyer?

THE DEFENDANT: No, not at all.

THE COURT: Do you want the public defender to represent you? The state says they're asking for jail time.

THE DEFENDANT: That would be insane. That would be terrible.

THE COURT: Well, then I suggest you either hire a lawyer or request the appointment of the public defender.

MR. ARTHUR: He is on four years felony probation right now, Judge. He is definitely going.

THE COURT: You have the same constitutional right not to have a lawyer as you do to have a lawyer, but that's a decision which you must make right now. So that you may be in a position to make a decision, I should advise you that the charges with which you have been charged, apart from the traffic, are class A misdemeanors. If you are found guilty on, for example, the charge of battery on Robin Hendron, the maximum punishment would be up to 364 days in a place other than a penitentiary and a fine of up to $1,000.

Now, I have offered you the public defender without charge and offered you an opportunity to employ your own attorney. Now, you must answer. Do you wish to go to trial or do you want time to get an attorney?

THE DEFENDANT: Yes, I will go right now. I am ready right now. I said it three times I said it four times.

THE COURT: Without a lawyer?

THE DEFENDANT: I don't need a lawyer. You know it didn't happen. Anybody can get burned on a deal, right? I'd just as soon get it over with.

THE COURT: I consider that I warned you adequately about your right to be represented by a private attorney or one without charge. I've warned you about the consequences of the fine. I conclude that you understand and knowingly waive your right to counsel.

Have I asked you whether you wish trial by this court or a jury trial?

THE DEFENDANT: Yes.

THE COURT: Which do you wish?

THE DEFENDANT: Trial by the Court.

(All witnesses sworn.)

MR. ARTHUR: State will make a motion to exclude witnesses. I have two civilian witnesses and an officer.

THE COURT: Are your witnesses here?

THE DEFENDANT: I have a few of them.

THE COURT: Where are they?

THE DEFENDANT: I brought just one with me today.

THE COURT: How long is the trial going to last?

THE DEFENDANT: I don't know.

THE COURT: It has to be concluded this afternoon. If you have any witnesses, you better get them in. In the meantime, you step out of the room."

After finding the defendant guilty at the close of the hearing, the court addressed the following comments to the defendant:

"THE COURT: I have some other reservations about this case that I would implement while we're having the investigation made. There is something about the manner in which you have testified here that is a little outside of my usual ability to understand and comprehend people. I would like to have an examination made on you to help me in determining what to do here. I have in mind revoking your bond and taking you into custody and have a psychiatric study made on you so when sentence time comes just how it would best be done."

The defendant contends that the trial court committed reversible error by permitting him to proceed to trial pro se when he did not knowingly and intelligently waive his right to counsel. This argument encompasses a determination of whether the trial court's admonishment fulfilled the mandates of Supreme Court Rule 401(a). (Ill.Rev.Stat.1975, ch. 110A, 401[a]). This rule requires that:

"Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court."

In interpreting this rule, our Illinois courts have consistently followed certain precepts and enunciated certain principles to the effect that:

"The purpose of Supreme Court Rule 401(a) is to provide a procedure which will eliminate any doubt that a defendant understands the nature and consequences of the charge against him before a trial court accepts his waiver of the right to counsel; it is a procedure that precludes a defendant from waiving assistance of counsel without full knowledge and understanding." (Emphasis added.) (People v. Lindsey (1st Dist. 1974), 17 Ill.App.3d 137, 140, 308 N.E.2d 111, 114.)

A finding that the right to counsel has been waived is not to be made lightly. (People v. Melvin (5th Dist. 1975), 28 Ill.App.3d 1090, 1093, 329 N.E.2d 890; People v. McMurray (1st Dist. 1977), 55 Ill.App.3d 581, 13 Ill.Dec. 351, 371 N.E.2d 46.) In assessing the validity of a waiver, a reviewing court must determine whether there was an intelligent relinquishment or abandonment of a known right or privilege. (Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.) More than a routine inquiry is required to make this determination. (People v. Bush (1965), 32 Ill.2d 484, 207 N.E.2d 446.) Such a finding should be preceded by a careful inquiry by the court, aimed at determining the defendant's ability to conduct his own defense. (People v. Morris (1969), 43 Ill.2d 124, 251 N.E.2d 202.) Moreover, the waiver of any constitutional right requires the highest level of competency. (Sieling v. Eyman (9th Cir. 1973), 478 F.2d 211; People v. Heral (1976), 62 Ill.2d 329, 336, 342 N.E.2d 34.) In this context one court has stated that "(a)ny waiver of counsel is carefully scrutinized '(b)ecause of the importance of the right to counsel in preserving the free exercise of other constitutional rights...