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People v. Blaney
State: Illinois
Court: 5th District Appellate
Docket No: 5-98-0338 Rel
Case Date: 08/01/2001

NOTICE
Decision filed 08/01/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-98-0338

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee,) White County.
)
v.) No. 96-CF-192
)
JEFFREY BLANEY,) Honorable
) George W. Timberlake,
Defendant-Appellant.) Judge, presiding.

____________________________________________________________________________

JUSTICE RARICK delivered the opinion of the court:

Jeffrey Blaney (defendant) was convicted after a jury trial in the circuit court of WhiteCounty of attempted murder, armed violence, and aggravated battery with a firearm. He wassentenced to 45 years' imprisonment for attempted murder. Defendant appeals, contendingthat he was denied both a fair trial and his right to appointed counsel. Defendant alsocontends that his convictions for armed violence and aggravated battery with a firearm mustbe vacated and the mittimus must be amended to reflect that defendant is eligible to receivegood-time credit. The State concedes these last two issues (see People v. King, 66 Ill. 2d551, 363 N.E.2d 838 (1977); People v. Damico, 309 Ill. App. 3d 203, 722 N.E.2d 194(1999)), and accordingly they will not be discussed further. As for the first two issues, wefind no merit in defendant's contentions and therefore affirm defendant's conviction forattempted murder.

On November 9, 1996, at approximately 8:30 in the morning, Virginia Beach,Virginia, police officer Johnson, while patrolling the resort area of Virginia Beach, wasinformed that a vehicle registered to defendant was parked at the Holly Kove Motel. Because there was an outstanding warrant on defendant, Officer Johnson drove toward themotel to watch defendant's car. As she approached the motel, she spotted defendant's carexiting the parking lot. The physical characteristics of the driver of the car matched thedescription of defendant. Officer Johnson followed the car for less than a block andactivated her vehicle's lights to pull defendant's car over. Officer Johnson stopped andcalled her dispatcher. As she did so, both the driver and the passenger of the stopped vehicleexited the car. The passenger, a male juvenile, stood by the car; the driver began to walkaway from Officer Johnson. Officer Johnson caught up to defendant in her vehicle andinstructed him to return to his car. Defendant continued to run away. Officer Johnsonattempted to block defendant with her car, but he was able to escape through an alley. Officer Johnson exited her vehicle and chased defendant on foot. Defendant eventuallystopped running, turned around, and shot at Officer Johnson. Officer Johnson sawsomething silver in defendant's hand, heard a bang, and saw smoke. Officer Johnsondropped to the ground, and when she got back up, defendant was gone. She returned to thelocation where defendant abandoned his car, but the car was gone. Later that day thepassenger was apprehended. Four days later, a jacket the passenger had been wearing wasfound in an alley a block away from where defendant's car had been pulled over. A .357-caliber handgun and a gray tote sock were found in the jacket.

Two days later, on November 11, 1996, Illinois State Police Trooper Ernie Johnsonwas patrolling Interstate 64 in a marked police vehicle. At approximately 1 p.m. he pulledover for speeding a maroon Honda Civic with Virginia dealer plates. Trooper Johnsonexited his vehicle and waited between his vehicle and the Honda for traffic to clear. Heobserved only one individual in the car. As Trooper Johnson reached the rear bumper of theHonda, the driver leaned out of his car and raised his arms. Trooper Johnson saw a pieceof gray material and then the driver's hand fly up from the recoil of a weapon. TrooperJohnson was shot in the abdomen, below his bulletproof vest. Trooper Johnson fell betweenthe cars, and the driver drove away. Trooper Johnson shot at the Honda and called for help. He later identified defendant as the driver of the Honda.

The call went out that an officer was down. Numerous law enforcement membersbegan searching for the shooter. Wayne County Deputy Larry Eckelberry, responding to thecall, spotted a maroon Honda with Virginia plates on Route 45 being followed by lawenforcement vehicles. Eckelberry watched the Honda run into a ditch and a man run fromthe car. He stopped his vehicle, looked in the Honda to see if anyone else was in the car, andthen pursued the man on foot. When Eckelberry caught up to the driver, two other officersalready had him at gunpoint and were telling him to get on the ground. The man threw agun down and eventually dropped to the ground. Eckelberry picked up what turned out tobe a gun inside a gray sock. Two rounds had been fired from the revolver. Defendant wasidentified as the man being chased. In searching the Honda, the officers found a loaded .22-caliber double-barrel derringer and ammunition for a .357-caliber weapon and a .38-caliber"spear shot." Once in custody, defendant told the police that he thought the trooper had ona bulletproof vest and that he would not have shot him otherwise. He claimed that he justwanted to knock the trooper down so he could get away. He also told the officers that if hewanted to kill the trooper, he would have gotten out of the car and "finished the job." Thejury did not believe defendant's claims and found him guilty of attempted murder.

Defendant first argues on appeal he was deprived of a fair trial by the admission ofother-crimes evidence, including photographs of all the weapons and ammunition recoveredboth in Illinois and in Virginia. We disagree. Evidence of prior wrongful acts is notadmissible to show a propensity to commit crimes, but it is admissible for any other reasonif relevant to establish material matter. People v. Robinson, 167 Ill. 2d 53, 62, 656 N.E.2d1090, 1094 (1995); People v. Illgen, 145 Ill. 2d 353, 364-65, 583 N.E.2d 515, 520 (1991). Evidence is considered relevant if it has any tendency to make the existence of any fact thatis of consequence to the determination of an action more or less probable than it would bewithout the evidence. Illgen, 145 Ill. 2d at 365-66, 583 N.E.2d at 520; People v. Turner,240 Ill. App. 3d 340, 352, 608 N.E.2d 141, 150 (1992). When other-crimes evidence isoffered, the trial court must weigh the relevance of such evidence to establish the purposefor which it is offered against the prejudicial effect the introduction of that evidence mayhave upon the defendant. Robinson, 167 Ill. 2d at 63, 656 N.E.2d at 1094; People v.Stewart, 105 Ill. 2d 22, 62, 473 N.E.2d 840, 860 (1984). The decision of the trial courtregarding the admissibility of other-crimes evidence will not be disturbed on review absenta clear showing of abuse of discretion. Turner, 240 Ill. App. 3d at 353, 608 N.E.2d at 150.

The trial court, in this instance, ruled that the other-crimes evidence the State wishedto present was admissible to show motive, intent, and identity. The trial court specificallyfound the similarity of the shootings to be quite high. Contrary to defendant's contentions,we agree with the ruling of the trial court. Defendant argues that the incidents are differentbecause of such factors as where they occurred (rural or urban) and whether there was apassenger in the car. Dissimilarities will always exist between independent offenses,however. Illgen, 145 Ill. 2d at 373, 583 N.E.2d at 524. What defendant fails to recognizeis that each time he was stopped and confronted by police authority, he attempted to flee byshooting at the officer with a gun in a gray sock. Mere general areas of similarity willsuffice when evidence of the defendant's involvement in another offense is offered to provethe absence of an innocent frame of mind or the presence of criminal intent. Illgen, 145 Ill.2d at 373, 583 N.E.2d at 523. The evidence was relevant to explain why a person stoppedfor a mere traffic violation would improbably shoot the approaching officer withoutwarning. The evidence also tends to disprove defendant's lack of intent to harm or kill theofficer. Evidence which shows that an event was not caused by accident tends to show thatit was caused intentionally. Illgen, 145 Ill. 2d at 366, 583 N.E.2d at 520. Moreover, therequisite mental state may be inferred from defendant's conduct and the circumstancessurrounding his commission of the crime. People v. Bailey, 265 Ill. App. 3d 262, 273, 638N.E.2d 192, 199 (1994). We agree that the evidence of the shooting in Virginia did notmake a mere showing of propensity toward violence; rather, it was highly probative ofidentity, as well as defendant's intent and motive in committing the shooting. Clearly, theevidence's probative value to explain otherwise improbable behavior far outweighed anyprejudice to defendant. We therefore find no abuse of the court's discretion in admittingevidence pertaining to the incident in Virginia. We, likewise, find no abuse of discretionwith respect to the admission of evidence pertaining to the ammunition and the loaded .22-caliber derringer found in the Honda after defendant's arrest. Both of the loaded weaponswere in defendant's possession in the car when he shot Trooper Johnson, and neither weaponwas eliminated as the gun used to shoot him. We agree there was a sufficient connectionbetween the weapons and the crime for their admission as evidence at the trial.

Defendant also argues on appeal that he was denied his right to appointed counselwhen the trial court refused to appoint counsel for his sentencing. Defendant is correct inasserting that sentencing is a critical stage of criminal proceedings, in which a defendant hasa constitutional right to representation by counsel. See People v. Baker, 92 Ill. 2d 85, 90,440 N.E.2d 856, 858 (1982). On the other hand, a defendant also has a constitutional rightto proceed without counsel when he or she voluntarily and intelligently elects to do so. Baker, 92 Ill. 2d at 90, 440 N.E.2d at 858. The right of self-representation does not carrywith it a corresponding right to legal assistance, and one choosing to represent himself orherself must be prepared to do just that. People v. Redd, 173 Ill. 2d 1, 38, 670 N.E.2d 583,601 (1996); People v. Taggart, 233 Ill. App. 3d 530, 556-57, 599 N.E.2d 501, 519-20(1992). Absent significantly changed circumstances or a later request for counsel, anintelligently and knowingly made waiver of counsel applies to all phases of the trial. Redd,173 Ill. 2d at 24, 670 N.E.2d at 595; Baker, 92 Ill. 2d at 91-92, 440 N.E.2d at 859. Moreimportantly, the constitutional right to self-representation does not require a court to permita "hybrid" representation in which a defendant alternates between proceeding pro se andbeing represented by counsel. Redd, 173 Ill. 2d at 38, 670 N.E.2d at 601; Taggart, 233 Ill.App. 3d at 557, 599 N.E.2d at 520. A defendant has no right to select from or experimentwith counsel appointed to him or her to the detriment of the orderly process of law. Peoplev. Rivers, 61 Ill. App. 3d 376, 384, 377 N.E.2d 1245, 1251 (1978); People v. Leman, 95 Ill.App. 2d 212, 218, 238 N.E.2d 213, 216 (1968).

On November 12, 1996, the trial court appointed an attorney to represent defendant. On April 17, 1997, defendant filed a written motion to represent himself. He withdrew thatmotion later the same day. On April 21, 1997, jury selection began. On April 22, after thelunch recess, defendant filed a motion to waive appointed counsel. After advisement,defendant was permitted to proceed pro se. After being convicted, defendant, on May 12,1997, filed a motion for appointment of counsel for sentencing, as well as a motion for anew trial. On May 13, 1997, the trial court appointed defendant a new attorney. The courtexplained to defendant that appointed counsel was not to be his advisor but was to representhim at the sentencing hearing and for any posttrial motions. This attorney subsequently waspermitted to withdraw because of ties to the victim. On May 20, another attorney wasappointed to represent defendant. This attorney filed a motion to continue the sentencinghearing and requested an extended time limit for filing a motion for new trial. His motionfor new trial was filed on August 11, 1997. On August 19, defendant filed a pro se motionfor leave to file a motion requesting an extension of time in which to file an amended motionfor new trial. On September 23, 1997, defense counsel argued a motion in arrest ofjudgment and had begun to argue the motion for new trial when defendant informed him thathe wished to dismiss him. Defendant told the court that his posttrial motion counsel wasineffective. The court informed defendant that he could choose to proceed pro se or withcounsel but that defendant's lawyer-shopping was over and that the court would no longerappoint another attorney because defendant was dissatisfied with particular rulings. Defendant replied he wanted an "effective" attorney and not the one appointed to him. Hethen requested a continuance to prepare a defense and again asked for the appointment ofanother attorney. When his requests were denied, defendant asked to proceed pro se. Thecourt granted defendant's request and set the sentencing hearing date for October 8, 1997. Defendant asked if he could request counsel for that hearing. The court answered no andgranted his requests for access to the law library and transcripts. Two days before thesentencing hearing, defendant again requested the appointment of a public defender whowould provide effective assistance of counsel. The court denied this request, explaining thatdefendant had already dismissed two attorneys and could not choose at which hearings hewould be represented and at which hearings he would not be. We agree that the court hadprovided defendant enough in the way of representation. Defendant's refusal to acceptappointed counsel operated as a waiver of counsel. See Rivers, 61 Ill. App. 3d at 386, 377N.E.2d at 1252. His request for "effective" counsel was nothing more than a request toselect from or experiment with appointed counsel to the detriment of the orderly process oflaw.

For the aforementioned reasons, we affirm the conviction for attempted murder, wevacate the convictions for armed violence and aggravated battery with a firearm, and wecorrect the mittimus to reflect that defendant is eligible to receive day-for-day good-conductcredit against his sentence (see People v. Bashaw, 304 Ill. App. 3d 257, 259, 710 N.E.2d555, 556 (1999)).

Affirmed in part and vacated in part; mittimus corrected.

MAAG and GOLDENHERSH, JJ., concur.

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