THE PEOPLE OF THE STATE OF ILLINOIS, | ) | Appeal from |
Plaintiff-Appellee, | ) | Circuit Court of |
v. | ) | Livingston County |
LARRY YOUNG, | ) | No. 00CF83 |
Respondent-Appellant. | ) | |
) | Honorable | |
) | Harold J. Frobish, | |
) | Judge Presiding. |
JUSTICE COOK delivered the opinion of the court:
Defendant, Larry Young, appeals his jury conviction foraggravated battery (720 ILCS 5/12-4(b)(6) (West 1998)) and thetrial court's denial of his posttrial motion for appointment ofnew counsel. We affirm.
The indictment stated that on December 14, 1999, inLivingston County, Young committed aggravated battery by "knowingly [making] physical contact of an insulting or provokingnature with Kara Cumberland, in that he spit upon [her], knowing[her] to be a correctional institution employee engaged in theexecution of her official duties."
At the first appearance on April 28, 2000, the trialcourt asked Young how old he was. Young answered he was 44. After reading the charge to him, the trial court explained to himthat aggravated battery was a Class 3 felony, for which he couldbe sentenced to imprisonment for 2 to 3 years or, depending onhis criminal history, 5 to 10 years, and, if convicted, he wouldserve the sentence consecutively to whatever term he was presently serving. The court further told him: "You are entitled toa lawyer. You can hire your own. Or, if you can't afford one, Iwould appoint the public defender to represent you." At Young'srequest, the trial court appointed the public defender, DavidAhlemeyer, to represent him. Ahlemeyer entered a plea of notguilty on Young's behalf.
On June 22, 2000, a jury found Young guilty of aggravated battery. Correctional officer Cumberland had testifiedthat Young spit on her. This testimony was corroborated byanother correctional officer who heard a spitting noise come fromYoung's cell followed by Cumberland wiping off her face andrushing away. Young denied spitting on anyone. On July 26,2000, the trial court sentenced Young to three years in prison torun consecutively to the sentence he was already serving.
On August 4, 2000, the circuit clerk filed a notice ofappeal on Young's behalf. On August 21, 2000, Young filed amotion to reduce his sentence. On June 21, 2001, pursuant toRule 606(b) (188 Ill. 2d R. 606(b)), we dismissed the appeal aspremature and remanded the case for proceedings on the posttrialmotion (the motion to reduce the sentence). People v. Young, No.4-00-0691 (June 21, 2001) (dismissed on appellant's motion aspremature).
On July 3 and 5, 2001, Young filed, pro se, two motionsfor the appointment of new counsel. In these motions, he allegedthat Ahlemeyer had been ineffective.
On July 16, 2001, the trial court held a hearing onYoung's posttrial motions. Young appeared without counsel. Thecourt concluded that the allegations in Young's motions for theappointment of new counsel did not entitle him to differentcounsel. The court therefore declined to appoint new counsel,giving Young a choice between the continued services of thepublic defender or self-representation. Young chose the latter. Finding the sentence of three years' imprisonment to be "anappropriate sentence for what *** [Young] did," the court deniedhis motion to reduce the sentence.
This appeal followed.
Young appeals, arguing that (1) the trial court failedto make an adequate inquiry into his allegations of ineffectiveassistance of counsel before denying his request for new counsel,(2) the public defender rendered ineffective assistance at trial,(3) the trial court failed to admonish him pursuant to SupremeCourt Rule 401(a) (134 Ill. 2d R. 401(a)) before holding that hehad waived his right to counsel, and (4) improper comments by theprosecutor during closing arguments deprived Young of a fairtrial. We address each issue in turn.
A. Adequate Inquiry
When a defendant presents a pro se posttrial claim ofineffective assistance of counsel, the operative concern for thereviewing court is whether the trial court conducted an adequateinquiry into the pro se defendant's allegations of ineffectiveassistance of counsel. People v. Haynes, 331 Ill. App. 3d 482,484, 771 N.E.2d 643, 645 (2002). A trial court's finding that itis unnecessary to appoint new counsel will not be disturbed onappeal unless it is manifestly erroneous. Haynes, 331 Ill. App.3d at 484, 771 N.E.2d at 645.
In this case, Young's claims of ineffective assistanceall related to matters that happened at trial. The judge hearingYoung's posttrial motion, having been the judge presiding overthe trial, already knew all the facts he needed to rule onYoung's motion. Further inquiry into the factual basis forYoung's claims was therefore unnecessary. The judge did examineYoung's motion, and he decided that the arguments were withoutmerit. Under the circumstances, the trial court conducted anadequate inquiry into Young's allegations of ineffective assistance of counsel.
Having conducted an adequate inquiry, the questionstill arises whether the trial court's decision that Young'sarguments were without merit was manifestly erroneous. To answerthat question, we next address whether Young's trial counsel'sperformance was ineffective.
B. Trial Counsel's Performance
To prevail on a claim of ineffective assistance ofcounsel, Young must prove (1) his lawyer's representation fellbelow an objective standard of reasonableness, and (2) there is areasonable probability that, but for the defense lawyer's errors,the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674,693, 698, 104 S. Ct. 2052, 2064, 2068 (1984). A reasonableprobability is a probability sufficient to undermine confidencein the outcome. People v. House, 141 Ill. 2d 323, 388, 566N.E.2d 259, 288 (1990). "[N]either mistakes in strategynor the fact that another attorney with the benefit ofhindsight would have handled the case differently indicates the trial lawyer was incompetent." People v.Vera, 277 Ill. App. 3d 130, 138, 660 N.E.2d 9, 16(1995). "The defendant must overcome a 'strong presumption that counsel's complained-of action or inaction was merely trial strategy.'" Vera, 277 Ill. App.3d at 138, 660 N.E.2d at 16, quoting People v. Medrano,271 Ill. App. 3d 97, 100, 648 N.E.2d 218, 221 (1995).
Young argues that his counsel's performance wasobjectively unreasonable because counsel did not objectto the admission of Young's prior convictions, Youngbeing shackled during the trial, testimony that Cumberland was pregnant, and references that Young was housedin a segregation unit. Young also argues that it wasobjectively unreasonable to use the so-called "mere-fact" method of impeachment and that it was objectivelyunreasonable to fail to explain to the jury that Youngwore dark glasses for medical reasons.
We first address the issue of Young's priorconvictions.
During direct examination, Young's counselasked the following question: "And I take it that youhave been convicted of one or more felonies that resulted in your incarceration; is that correct?" Younganswered yes.
Young argues that his counsel was ineffectivefor failing to move in limine to exclude evidence ofhis prior convictions. We find this argument to bewithout merit for the simple fact that the jury wasgoing to know Young had a prior conviction becauseYoung was in prison. Young's current imprisonment wasnot something the trial court could exclude.
Young also argues that his counsel was ineffective for disclosing the "mere fact" of the prior convictions on direct examination, without requiring thecourt to engage in the requisite balancing test setforth in People v. Montgomery, 47 Ill. 2d 510, 516, 268N.E.2d 695, 698 (1971). The Montgomery balancing testrequires a trial court to exclude evidence of a priorconviction if the danger of unfair prejudice outweighsthe probative value. Montgomery, 47 Ill. 2d at 516,268 N.E.2d at 698. The mere-fact method of impeachmentinforms the jury only of the "mere fact" of a witness'sprior conviction. People v. Kunze, 193 Ill. App. 3d708, 733, 550 N.E.2d 284, 301 (1990) (Steigmann, J.,specially concurring).
The Illinois Supreme Court has since rejectedthe use of the mere-fact approach, stating:
"This bare announcement unavoidably invites jury speculation about the nature of the prior crime. There is a potential danger that the jury would speculate that thedefen-dant was previously convicted of a more serious crime. Consequently, themere-fact approach may result in unfair prejudice to the defendant arising from jury speculation as to the nature of the priorunnamed crime." People v. Atkinson, 186 Ill. 2d 450, 459, 713 N.E.2d 532, 536-37 (1999).
Returning to Young's arguments, we find noerror in not asking the court to conduct a balancingtest on whether evidence of Young's prior convictionsshould be admitted. Again, the jury was going to knowYoung had a prior conviction because Young was inprison. Young's current imprisonment was not somethingthe trial court could exclude.
Regarding the mere-fact argument, Young iseffectively arguing that defense counsel should havebrought out the details of Young's prior convictions tothe jury. This argument has some merit. It may havebeen better for defense counsel to elicit the nature ofYoung's prior convictions rather than let the juryspeculate about them.
On the other hand, defense counsel may havethought it better to acknowledge the obvious, thatYoung was in prison for a felony conviction, and moveon without dwelling on Young's past crimes. This appears to be a matter of trial strategy. That this maynot have been the best strategy, or that Young's appellate counsel may have acted differently, does not overcome the strong presumption that counsel's complained-of action or inaction was merely trial strategy. Vera,277 Ill. App. 3d at 138, 660 N.E.2d at 16. Trial counsel was not ineffective on this basis.
Young also argues that his counsel was ineffective for failing to object to Young being shackledduring the trial. Young points out that shackling isdisfavored because it prejudices a jury against theaccused, restricts the defendant's ability to assisthis attorney, and offends the dignity of the judicialprocess. People v. Boose, 66 Ill. 2d 261, 265, 362N.E.2d 303, 305 (1977). An accused, therefore, shouldnever be shackled in front of the jury unless there isa manifest need for the restraint. Boose, 66 Ill. 2dat 265-66, 362 N.E.2d at 305.
The trial court stated that Young was to beshackled based upon Young's record of committing assaults while in prison. The presentence report indicates that since Young's imprisonment in 1998, he hadreceived 11 citations for assault and 7 for intimidation and threats. Young does not suggest that thisinformation is incorrect or that it does not supportthe court's decision to shackle Young. Nor does Youngsuggest that an objection to the shackles would havelikely been granted. Even if Young's counsel's failureto object was objectively unreasonable, since Young hasnot demonstrated that the outcome would have been anydifferent, no ineffective assistance of counsel isshown. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104S. Ct. at 2068.
Young next argues that his trial counsel should haveasked the court to inform the jury that Young wore dark glassesfor medical reasons. Young suggests that by not doing so thejury was left to speculate that Young wore dark glasses as a whimor in disrespect. This is based on some comments by the trialcourt before trial that people generally do not wear dark glassesin courtrooms and that it might be better if Young took theglasses off to testify so the jury could see his eyes. Therecord does not indicate whether Young took the glasses off totestify.
The record does indicate that Young had other non-tinted glasses and that he did not have to wear glasses all thetime. It was apparently Young's choice, rather than an absolutemedical necessity, to wear the tinted glasses at trial. Trialcounsel was therefore not ineffective for not asking the court totell the jury that Young wore the glasses out of medical necessity.
Finally, Young argues that his counsel was ineffectivefor failing to object to testimony that correctional officerCumberland was five months pregnant when Young spat in her faceand that Young was housed in the segregation unit. Young arguesthat this testimony was irrelevant and prejudicial and should nothave been allowed. We disagree.
The testimony about Young being in segregation andcorrectional officer Cumberland being five months pregnant wasrelevant. Young's presence in segregation explained why he wasbehind a steel door with a small hole rather than behind bars ina regular cell. Young's trial counsel actually used Young'spresence in a segregation cell to argue Young's innocence. Inclosing arguments, defense counsel suggested that if Young hadreally spit through the narrow grate in the small hole in thedoor, then some spit should have been observed stuck on thatgrate, yet there was none. Regarding correctional officerCumberland being pregnant, an element of battery which the Statehad to prove was that the contact was "of an insulting or provoking nature." 720 ILCS 5/12-3(a)(2) (West 1998). In this case,the fact that correctional officer Cumberland was five monthspregnant heightened her concern about possibly contracting adisease from Young's saliva. This exemplified the insulting orprovoking nature of the contact, an element the State had toprove.
Since the evidence was relevant, an objection would notlikely have been granted and there would have been no differencein the outcome. Young's counsel was therefore not ineffective onthis basis. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068.
C. Rule 401(a) Admonishments
Supreme Court Rule 401(a) provides:
"Any waiver of counsel shall be in opencourt. The court shall not permit a waiverof counsel by a person accused of an offensepunishable by imprisonment without first, byaddressing the defendant personally in opencourt, informing him of and determining thathe understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentenceprescribed by law, including, when applicable, the penalty to which the defendant maybe subjected because of prior convictions orconsecutive sentences; and
(3) that he has a right to counsel and,if he is indigent, to have counsel appointedfor him by the court." 134 Ill. 2d R.401(a).
Young had a right to counsel in the hearing on hisposttrial motions. See People v. Hughes, 315 Ill. App. 3d 86,95, 733 N.E.2d 705, 712 (2000), citing U.S. Const., amends. VI,XIV; People v. Baker, 92 Ill. 2d 85, 90, 440 N.E.2d 856, 858(1982). By telling the trial court he did not want the publicdefender to represent him any longer, Young in effect waived hisright to appointed counsel and chose self-representation. Thetrial court made it clear to Young that it would not appoint adifferent attorney. Young argues that before accepting thewaiver of counsel, the trial court had to admonish him under Rule401(a). See People v. Baker, 94 Ill. 2d 129, 133, 445 N.E.2d769, 771 (1983) (trial court must admonish defendant pursuant toRule 401(a) in revocation of probation proceeding). We disagree.
Young clearly understood that he had the right tocontinued representation by the public defender. The question iswhether it is mandatory that a court comply with the technicalrequirements of Rule 401(a) when a defendant discharges hisattorney late in the proceedings, here, after trial. Rule 401(a)expresses no such intent. A defendant who has been representedby an attorney for a period of time is more likely to understandthe workings of the system than a defendant who first appears incourt. The language of Rule 401(a) manifests only the intent todeal with defendants who are considering a waiver of counsel atthe initial-appointment stage of the proceedings. The plainlanguage of Rule 401(a) says that the admonishments are to begiven to a defendant "accused" of an offense "punishable" byimprisonment. 134 Ill. 2d R. 401(a). In this case, Young hadalready been convicted of the offense and sentenced, while beingrepresented by counsel. Young already knew everything a Rule401(a) admonishment would have told him.
Young complains that "[t]he court did not explain thenature of the charge, the maximum sentence, [or] [Young's]mandatory consecutive sentence." It would have been useless forthe trial court to inform Young of the nature of a charge and thepossible sentencing because Young was not facing any charge orpossible sentence. As stated above, he had already been convicted and sentenced. The plain language and logic of Rule401(a) does not require admonishing a defendant who has beenconvicted and sentenced of the nature of the charge for which hewas just convicted and the sentence he just received. Cf. Peoplev. Hovenec, 232 Ill. App. 3d 57, 62-63, 596 N.E.2d 749, 753(1992) (finding the trial court complied with Rule 401(a) byadmonishing defendant who was convicted but not yet sentenced ofthe crime for which he had just been convicted, the minimum andmaximum sentences, and the right to counsel).
D. The Prosecutor's Closing Argument
Young argues that he is in entitled to a new trialbecause various comments made by the prosecutor in rebuttalargument amounted to reversible error. Young did not object tothese comments at trial or in a posttrial motion. To preserve anissue for review, a defendant must make both a contemporaneousobjection and a specific objection in his posttrial motion;failure to do so results in forfeiture of the issue. People v.Norfleet, 259 Ill. App. 3d 381, 389, 630 N.E.2d 1231, 1239(1994). Young argues that we may still address this issue as amatter of "plain error." See 134 Ill. 2d R. 615(a) ("Plainerrors or defects affecting substantial rights may be noticedalthough they were not brought to the attention of the trialcourt"). Specifically, Young argues that plain error may beinvoked because the evidence was closely balanced. See People v.Keene, 169 Ill. 2d 1, 18, 660 N.E.2d 901, 910 (1995) ("A procedural default may be excused either because the error affected'substantial rights' or, independent of the nature of the rightaffected, simply because the evidence in the case was closelybalanced").
We find that the evidence in this case was not closelybalanced. Young's testimony contradicted Cumberland's testimony,and there was no physical evidence in this case. However,Cumberland's testimony was unimpeached and substantially corroborated by another correctional officer who was standing immediately behind Cumberland when the spitting occurred. The corroborating testimony gave the jury more evidence with which toconvict than just one person's word over another. As such, theevidence against Young was not closely balanced. See, e.g.,People v. Burrows, 148 Ill. 2d 196, 229-30, 592 N.E.2d 997, 1011(1992) (finding evidence not closely balanced, despite lack ofphysical evidence linking defendant to crime scene, where twowitnesses testified to witnessing defendant commit the crime). We therefore consider Young's argument regarding the prosecutor'sclosing argument forfeited.
III. CONCLUSION
We affirm.
Affirmed.
MYERSCOUGH, P.J., concurs.
APPLETON, J., dissents.
JUSTICE APPLETON, dissenting:
Although I otherwise agree with the majority's opinion,I respectfully dissent from the conclusion that the trial courtneed not have complied with Rule 401(a) during the hearing onYoung's posttrial motions.
The majority holds that Rule 401 applies only to"defendants who are considering a waiver of counsel at theinitial-appointment stage of the proceedings." Slip op. at 12. That holding flies in the face of precedent.
In People v. Langley, 226 Ill. App. 3d 742, 743, 589N.E.2d 824, 825 (1992), the defendant was represented by anattorney throughout the trial but represented himself during thesentencing hearing. We held that the trial court should haveadmonished the defendant under Rule 401(a) before accepting hiswaiver of counsel in the sentencing hearing. Langley, 226 Ill.App. 3d at 751, 589 N.E.2d at 831. Clearly, under our decisionin Langley, Rule 401(a) remains applicable after arraignment andeven after trial. The majority disposes of Langley by ignoringit.
The majority assumes that because Young had beenconvicted and sentenced, he "already knew everything a Rule401(a) admonishment would have told him." Slip op. at 12. In anideal world with ideally perceptive defendants, one could safelymake that assumption. Unfortunately, the record suggests that weexist in a less-than-ideal world. At the pretrial hearing, thepublic defender informed the trial court that Young had "beendiagnosed as schizophrenic" and was "receiving SSI [(supplementalsecurity income)] because of that condition." It appears, fromYoung's oral responses during the pretrial hearing, that he wasincapable of remembering what the trial court told him only amonth earlier, during the first appearance. The trial court hadto explain to him again the nature of the charge. In the hearingon his posttrial motions, Young seemed to be laboring under thedelusion that he was "[t]here for a minor possession."
The very purpose of Rule 401 is to eliminate anyreliance on the assumption that the defendant already knows theinformation in Rule 401(a) or that the defendant has "picked up"the information along the way. In unambiguous, mandatory language, Rule 401(a) states: "The court shall not permit a waiverof counsel *** without first *** informing him of and determiningthat he understands the following ***." (Emphases added.) 134Ill. 2d R. 401(a). Rule 401 does not contemplate a one-wayconduit of communication. "The conclusion that defendant hasknowingly waived his right to counsel is based upon the totalityof [the defendant's] responses to the court's admonitions." People v. Johnson, 123 Ill. App. 3d 128, 131, 462 N.E.2d 930, 932(1984).
As the majority states, Young had a constitutionalright to counsel at the hearing on his posttrial motions. Thepurpose of Rule 401 is to prevent the defendant from "waiving theright to counsel without full knowledge and understanding." People v. Schrodt, 8 Ill. App. 3d 660, 662, 289 N.E.2d 652, 653(1972). Obviously, by promulgating Rule 401(a), the supremecourt has expressed its conclusion that defendants cannot intelligently waive counsel without understanding their right tocounsel as well as some basic information about their case: thenature of the charge and the minimum and maximum potentialpunishment. See 134 Ill. 2d R. 401(a). Regardless of how farthe criminal proceedings have progressed, a defendant cannotintelligently waive his or her right to counsel without a graspof that essential information.
I would reverse the trial court's judgment and remandthis case for a new hearing on Young's posttrial motions, including strict compliance with Rule 401. See People v. Derra, 92Ill. App. 3d 1106, 1112, 416 N.E.2d 688, 692 (1981) (defendant'swaiver of counsel was ineffective without strict compliance withRule 401).