## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Burn s , 2012 IL App (4th) 110670

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. EMERSON T. BURNS, De fenda nt-Appellant.

District & N o. Four th District Docke t No. 4-11-0670

Filed Dec ember 5, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The adm o n i s h ments g iven befor e defe ndant withdrew his motion to proce ed pro se at his murder trial wer e not coer cive, wer e within the court’s discretion, and complied with W ard
, espec ially when defenda nt made his reque st two day s befor e the trial and the hear ing occur red t h e day befor e the tria l.

Dec ision Under Review Appea l from the Circuit Court of Macon County
, No. 08-CF- 1 8 0 5 ; t h e Hon. Timothy

J . Steadman, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Karen Munoz
, and J ohn M. McC ar thy
, all of S tate Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ack Ahola, S t at e’s Attorney
, of Dec atur (Patrick Delfino, Robert J

. Bide rman, and Aimee Sipes J ohnson, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel PRES I DI NG J USTI CE STEI GMANN delivere d the j u d g ment of the court, with opinion.
J ustices Appleton and T urner concur red in the judg ment and opinion.

OP INION

¶ 1 Following a May throug h J une 2011 bench trial, the trial cour t co n v i ct ed d efendant, Emerson T. Bur

ns, of first deg ree murder (720 I L CS 5/9-1(a) (1), (a) (2) (West 2008)). In J uly 2011, the cour

t sentence d defe ndant to 50 y ear s in prison. ¶ 2 Def

endant appea ls, arguing only that the trial court abused its discretion by coer cinghim into withdrawinghis request to proc eed pro se . We disag ree and af firm.

¶ 3 I . BA CKGROUND ¶ 4 In Dec ember 2008, the State charg ed defe ndant with three counts of first degree murder in connec tion with the death of six -month-old Amylah Smit h-Allende (born J une 8, 2008). ¶ 5 On May

2, 2011, two day s befor e his benc h trial was to beg in, defe ndant pro se filed a “motion for inef

fec tive counsel” in which he asser ted that his court-a

ppointed attorney

(1)
at t em p t ed t o coer ce him into acc epting a plea agree ment, (2) told him he “better take a [b] ench [t ]rial beca

use she *** would not be able to proper ly repr esent [hi m] in the prese nce of a jury ,” and (3) violated his rig ht to confide ntiality by speaking with him fre ely about his

case in the prese nce of corr ectional office rs. Def endant reque sted new counsel be appointed or, in the alter

native, that he be allowed to re prese nt himself. ¶ 6 On M ay 3
, 2 0 1 1
, t he trial court conducted a hear ing on defe ndant’s mot ion. The c ourt conclude d that appointed counsel was not ineffe ctive and denied defe ndant’s reque st for alternative counsel. The followingcolloquy followed: “[THE COURT]: Now, Mr. Bur ns let me try to put this in perspe ctive for you. Your choice n o w wo u ld be to rema in with your attorney as y our attorney during your bench trial, starting tomorrow or you said something about repr esenting yourself. Now, befor e y ou g o any further
, I will tell you repr esenting yourself is a terrible idea. And [appointed

-2-counsel] is experience d, she knows what she’s doing, she will repr esent you to the fullest extent of her ability
, she knows the rules. You don’t know any of the rules. So, I would caution ag ainst g iving up y our rig ht to a lawyer a nd repr esentingyourself. I think it’s a

rea l bad idea. Now, befor e we g o any further
, do you still want to repr esent yourself or do you want to stay with y our experienc ed attorne y ? MR. BURNS: Represe nt my self.
THE COURT: All rig ht. Then we have t o tell him what he’s char g ed with and the possible penalties. But befor e we g o any further
, I want you to understand Mr. Bur ns, if
y ou do this, y ou g ive up y our rig ht to a lawy er, as far as I ’m conce rned that’s it. Don’t

come back tomorrow morningand say Ichang ed my

mind, Judge

. You g ot it? Are y ou
sure y ou want to do this? ’Cause I ’m not g onna play g ames. I ’m not g onna delay the case

. There won’t be any attorney to h el p y o u , you know, do rese arc h. You’re not g onna micromana g e the Sheriff’ s Offic e and tell them you want to look at the law books, none of that will happen. You will g o to trial tomorrow. The question is do you want to g o to trial with an attorney who kno ws wh at she’s doing or do you want to g o to trial repr esentingy ourself? MR. BURNS: In that case I ’ll keep he r.” ¶ 7 Def

endant’ s case proce eded to trial. After hear ing all the evidenc e, the trial court found defe ndant guilty of the first deg ree murder of Amylah, a child under the ag e of 12. The court there afte r sentenc ed def

endant a s stated. ¶ 8 This appea l followed.

¶ 9 I I . ANALYSI S ¶ 10 Def

endant argues that the trial court abused i t s d i s cr et i o n b y co er ci n g h i m i n to withdrawinghis request to proc eed pro se . We disag ree

. ¶ 11 Pursuant to both the Unit ed S tates and I llinois Constituti o n s , a defe ndant has the rig ht to repr esent himself in crimi n al proce eding s. U.S. Const., amends. VI
, XIV; Faretta v. Calif ornia , 422 U.S. 806, 812-18 (1975); I ll. Const. 1970, art. I
, § 8; People v. Gibson
, 136 I ll. 2d 362, 374-75, 556 N.E.2d 226, 231 (1990). “ ‘The rig ht of s el f- re p re s entation is “as basic and fundame ntal as [the] rig ht to be repr esente d by counsel.” ’ ” People v. Foster
, 391 I ll. App. 3d 487, 491, 909 N.E.2d 3 7 2
, 3 7 7 (2 0 09) (quoting People v. Hayne s , 174 I ll. 2d 204, 235, 673 N.E.2d 318, 332 (1996), quoting People v. Nelson
, 47 I ll. 2d 570, 574, 268 N.E.2d 2, 5 (1971))

. A defe ndant’s waiver of counsel, howeve r, must be clea r and unequivoca l. Foster
, 391 I ll. App. 3d at 491, 909 N.E.2d at 377. “ ‘The purpose of requiring that a criminal defe ndant make an “unequivoc al” reque st to waive counsel is to: (1) preve nt the defe ndant from appea ling the denial of his rig ht to self-r epre sentation or the denial of his rig ht to counsel, and (2) preve nt the defe ndant from manipulating or abusing the sy stem by g oing back and forth betwee n his reque st for counse l an d h i s wish to proce ed pro se .’ ” Foster , 391 I ll. App. 3d at 491-92, 909 N.E.2d at 377 (quoting People v . Mayo , 198 I ll. 2d 530, 538, 764 N.E.2d 525, 530 (2002) ).

-3-¶ 12 Despite a defe ndant’s constitution al ri gh t t o s elf-r epre sentation, “a trial court has the

discretion to admonish [a defe ndant that self-r epre sentation] is ‘universa lly viewed as unwise,’ given the highly technica l rules gover ning the conduct of a trial.” Foster
, 391 I ll. App. 3d at 493, 909 N.E.2d at 378 (quoting People v. W illiams
, 277 I ll. App. 3d 1053, 1058, 661 N.E.2d 1186, 119 0 (1 9 96)). Fur ther, this court has noted that to ensure a defe ndant’s reque st to repr esent him self is an int ellige nt and knowingwaiver of hi s rig ht to counsel, it is “desira ble” for a trial court to admonish a defe ndant reg arding additional cautionar y matters, including that (1) an attorney has substantial experience and knows the rules of law, (2) a pro se defe nd an t wi l l n o t receive specia l consideration from the court, (3) a pro se defe ndant will not have acc ess to an attorney for assistance
, and (4) a pro se defe ndant will not rec eive extra time to prepa re his case or conduct rese arc h. People v. W ard
, 208 I ll. App. 3d 1073, 1081-82, 567 N.E.2d 642, 647-48 (1991). These admonishments and others noted in W ard have “the double benef it of (1) occa sionally discou ra gi n g a defe ndant from proce eding pro se (once he lea rns how difficult def

endinghimself will be) and ( 2) making

a compre hensive rec ord of the defe ndant’s knowing choice if he persists in waiving counsel, only to later claim (as fre quently happens) afte r he has had been tried and convicted that he

s h o u l d not have been permitted to waive counsel.” People v. Ames
, 2012 I L App (4t h ) 110513, ¶ 30. ¶ 13 In this case , the rec ord shows that defe ndant filed his reque st for the appointment of new counsel, or in the alternative, to pr ocee d pro se , two day s befor e his trial was to be g in, and the hear ing on his motion was held the day befor e trial. After finding defe ndant’s ineffe ctiveassistance -of- counsel claim meritless, the trial court asked defe ndant whether he wished to proce ed to trial with his curr ent cour t-appointed c ounsel or to re prese nt himself. The cour t cautioned defe ndant, h o we v er , that it believed self-r epre sentation was a “ter rible idea” beca use his appointed counsel was experience d and knew the court rules, wher eas defe ndant did not. ¶ 14 No t withstanding the trial court’s words of caution, defe ndant s t at ed h e wi s h ed t o repr es en t h imself. In response , the trial court beg an to further admonish defe ndant as this court urg ed in W

ard

. The court informed defe ndant that if he chose to g ive up his rig ht to an attorney , he would not be allowed to come back the next day and chang e his mind. The court would not delay the case , and defe ndant’s trial woul d b egi n t h e next day
, as schedule d. I f d efendant chose to repr esent him self, he would not have the benef it of an attorne y t o h el p him to rese arc h, nor would he be g iven specia l acc ess to la w books. Following these initial admonishments, the court asked defe ndant ag ain whether he wanted to continue to trial with his experience d appointed attorney or repr esent himself. Def endant respond e d
, “ [i ]n th a t c a s e I ’ll keep [appointed counse l] .” ¶ 15 Contrary to defe ndant’s contention on appea l, the trial court did not make “it clea r it was not happy wi t h [ d ef

endant’s] decision,” nor wer e the admonishments “designed to coer ce [hi m] into waiving his rig ht to self-r epre sentation.” Rather, the court’s admo nishments, which wer e consistent with our sug g estions in W ard
, wer e g iven to ensure that defe ndant was makingan intellige nt and knowingwaiver of his rig ht to counsel. ¶ 16 We note that defe ndant cites People v. Rivera
, 34 I ll. 2d 575, 216 N.E.2d 786 (1966), in support of his content i o n t h at the trial court coer ced him into g iving up his constitutional

-4-rig ht to repr esent himself at t ri al. In Rivera
, the trial judge expressed his annoyance with

defe nse counsel, who reque sted a jury trial when–the day befor e–counse l had informed the court that the defe ndant would opt for a bench trial. The judge informed counsel that he was

a “spee d merc hant” who would pick a jury in 15 minutes and he was “her e to g et ri d of

case s.” (Interna l quotation marks omitted.) Rivera
, 34 I ll. 2d at 576, 216 N.E.2d at 787. After confe rring with the defe ndant, counsel informed the court that defe ndant would waive a jury trial. Rivera
, 34 I ll. 2d at 577, 216 N.E.2d at 787. On revie w, the supreme court agree d with the defe ndant that “bec ause the judge was not icea bly perturbe d[,] his statements had the eff ect of coer cingdefe ndant into chang ing his mind and wa iving the jur y .” Id. ¶ 17 We find Rivera inapplicable h er e. I n t h i s case, the trial judge was not “noticea bly perturbe d.” The court’s actions wer e “entire ly appropr iate and consistent with its obligation to ensure that a defe ndant is made awa re of th e d an g ers and disadvantag es of selfrepr esentation, so that the rec ord will establish that he knows what he is doing and his choice is made with eyes open.” (Interna l quotation marks omitted.) Foster
, 391 I ll. App. 3d at 493, 909 N.E.2d at 379. ¶ 18 C as e l aw m ak es cl ea r that a trial court may appropr iately attempt to discourage a defe ndant from r epre sentinghimself at trial. None theless, we sug g est that a cour t doing so make clea r to the defe ndant, perha

ps even at the beg inning of the W ard admonitions, that if the defe ndant insists upon repr esenting himself at trial despite the court’s urg ing him not to, the cour t will respect that de cision and per mit him to proce ed pro se

. ¶ 19 Although the trial court in this case did not expli citly state to defe ndant during the cour t’s W ard admonitions that the cour t would ultim ately respe ct defendant’s decision to proce ed
pro se if he wer e to a dhere to that de cision, the rec ord in this case is more than adequate to demonstrate that the court did nothingimproper in its admonitions. ¶ 20 Be cause we conclude that the trial court’s admonishments wer e (1) not coer cive, (2) we ll within the court’s discr etion, and (3) entirely consistent with W

ard , we a ffirm.

¶ 21 I I I . CONCLUSI ON ¶ 22 For the rea sons stated, we aff irm. As part of our judgme nt, we aw ard the State its $50 statutory assessment ag ainst defe ndant as c osts of this appeal.

¶ 23 Affir

med.

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