ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

EMERSON T. BURNS, Defendant-Appellant.

 District & No. Fourth District

Docket No. 4-11-0670

Filed December 5, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The admonishments given before defendant withdrew his motion to

proceed pro se at his murder trial were not coercive, were within the

court’s discretion, and complied with Ward, especially when defendant

made his request two days before the trial and the hearing occurred the

day before the trial.

Decision Under 

Review

Appeal from the Circuit Court of Macon County, No. 08-CF-1805; the

Hon. Timothy J. Steadman, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Karen Munoz, and John M. McCarthy, all of State

Appellate Defender’s Office, of Springfield, for appellant. 

Jack Ahola, State’s Attorney, of Decatur (Patrick Delfino, Robert J.

Biderman, and Aimee Sipes Johnson, all of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the

court, with opinion.

Justices Appleton and Turner concurred in the judgment and opinion.

OPINION

¶ 1 Following a May through June 2011 bench trial, the trial court convicted defendant,

Emerson T. Burns, of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)). In July

2011, the court sentenced defendant to 50 years in prison.

¶ 2 Defendant appeals, arguing only that the trial court abused its discretion by coercing him

into withdrawing his request to proceed pro se. We disagree and affirm.

¶ 3 I. BACKGROUND

¶ 4 In December 2008, the State charged defendant with three counts of first degree murder

in connection with the death of six-month-old Amylah Smith-Allende (born June 8, 2008).

¶ 5 On May 2, 2011, two days before his bench trial was to begin, defendant pro se filed a

“motion for ineffective counsel” in which he asserted that his court-appointed attorney (1)

attempted to coerce him into accepting a plea agreement, (2) told him he “better take a

[b]ench [t]rial because she *** would not be able to properly represent [him] in the presence

of a jury,” and (3) violated his right to confidentiality by speaking with him freely about his

case in the presence of correctional officers. Defendant requested new counsel be appointed

or, in the alternative, that he be allowed to represent himself.

¶ 6 On May 3, 2011, the trial court conducted a hearing on defendant’s motion. The court

concluded that appointed counsel was not ineffective and denied defendant’s request for

alternative counsel. The following colloquy followed:

“[THE COURT]: Now, Mr. Burns let me try to put this in perspective for you. Your

choice now would be to remain with your attorney as your attorney during your bench

trial, starting tomorrow or you said something about representing yourself. Now, before

you go any further, I will tell you representing yourself is a terrible idea. And [appointed

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counsel] is experienced, she knows what she’s doing, she will represent you to the fullest

extent of her ability, she knows the rules. You don’t know any of the rules. So, I would

caution against giving up your right to a lawyer and representing yourself. I think it’s a

real bad idea.

Now, before we go any further, do you still want to represent yourself or do you want

to stay with your experienced attorney?

MR. BURNS: Represent myself.

THE COURT: All right. Then we have to tell him what he’s charged with and the

possible penalties. But before we go any further, I want you to understand Mr. Burns, if

you do this, you give up your right to a lawyer, as far as I’m concerned that’s it. Don’t

come back tomorrow morning and say I changed my mind, Judge. You got it? Are you

sure you want to do this? ’Cause I’m not gonna play games. I’m not gonna delay the case.

There won’t be any attorney to help you, you know, do research. You’re not gonna

micromanage the Sheriff’s Office and tell them you want to look at the law books, none

of that will happen. You will go to trial tomorrow. The question is do you want to go to

trial with an attorney who knows what she’s doing or do you want to go to trial

representing yourself?

MR. BURNS: In that case I’ll keep her.”

¶ 7 Defendant’s case proceeded to trial. After hearing all the evidence, the trial court found

defendant guilty of the first degree murder of Amylah, a child under the age of 12. The court

thereafter sentenced defendant as stated.

¶ 8 This appeal followed.

¶ 9 II. ANALYSIS

¶ 10 Defendant argues that the trial court abused its discretion by coercing him into

withdrawing his request to proceed pro se. We disagree.

¶ 11 Pursuant to both the United States and Illinois Constitutions, a defendant has the right

to represent himself in criminal proceedings. U.S. Const., amends. VI, XIV; Faretta v.

California, 422 U.S. 806, 812-18 (1975); Ill. Const. 1970, art. I, § 8; People v. Gibson, 136

Ill. 2d 362, 374-75, 556 N.E.2d 226, 231 (1990). “ ‘The right of self-representation is “as

basic and fundamental as [the] right to be represented by counsel.” ’ ” People v. Foster, 391

Ill. App. 3d 487, 491, 909 N.E.2d 372, 377 (2009) (quoting People v. Haynes, 174 Ill. 2d

204, 235, 673 N.E.2d 318, 332 (1996), quoting People v. Nelson, 47 Ill. 2d 570, 574, 268

N.E.2d 2, 5 (1971)). A defendant’s waiver of counsel, however, must be clear and

unequivocal. Foster, 391 Ill. App. 3d at 491, 909 N.E.2d at 377. “ ‘The purpose of requiring

that a criminal defendant make an “unequivocal” request to waive counsel is to: (1) prevent

the defendant from appealing the denial of his right to self-representation or the denial of his

right to counsel, and (2) prevent the defendant from manipulating or abusing the system by

going back and forth between his request for counsel and his wish to proceed pro se.’ ”

Foster, 391 Ill. App. 3d at 491-92, 909 N.E.2d at 377 (quoting People v. Mayo, 198 Ill. 2d

530, 538, 764 N.E.2d 525, 530 (2002)).

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¶ 12 Despite a defendant’s constitutional right to self-representation, “a trial court has the

discretion to admonish [a defendant that self-representation] is ‘universally viewed as

unwise,’ given the highly technical rules governing the conduct of a trial.” Foster, 391 Ill.

App. 3d at 493, 909 N.E.2d at 378 (quoting People v. Williams, 277 Ill. App. 3d 1053, 1058,

661 N.E.2d 1186, 1190 (1996)). Further, this court has noted that to ensure a defendant’s

request to represent himself is an intelligent and knowing waiver of his right to counsel, it

is “desirable” for a trial court to admonish a defendant regarding additional cautionary

matters, including that (1) an attorney has substantial experience and knows the rules of law,

(2) a pro se defendant will not receive special consideration from the court, (3) a pro se

defendant will not have access to an attorney for assistance, and (4) a pro se defendant will

not receive extra time to prepare his case or conduct research. People v. Ward, 208 Ill. App.

3d 1073, 1081-82, 567 N.E.2d 642, 647-48 (1991). These admonishments and others noted

in Ward have “the double benefit of (1) occasionally discouraging a defendant from

proceeding pro se (once he learns how difficult defending himself will be) and (2) making

a comprehensive record of the defendant’s knowing choice if he persists in waiving counsel,

only to later claim (as frequently happens) after he has had been tried and convicted that he

should not have been permitted to waive counsel.” People v. Ames, 2012 IL App (4th)

110513, ¶ 30.

¶ 13 In this case, the record shows that defendant filed his request for the appointment of new

counsel, or in the alternative, to proceed pro se, two days before his trial was to begin, and

the hearing on his motion was held the day before trial. Afterfinding defendant’s ineffectiveassistance-of-counsel claim meritless, the trial court asked defendant whether he wished to

proceed to trial with his current court-appointed counsel or to represent himself. The court

cautioned defendant, however, that it believed self-representation was a “terrible idea”

because his appointed counsel was experienced and knew the court rules, whereas defendant

did not.

¶ 14 Notwithstanding the trial court’s words of caution, defendant stated he wished to

represent himself. In response, the trial court began to further admonish defendant as this

court urged in Ward. The court informed defendant that if he chose to give up his right to an

attorney, he would not be allowed to come back the next day and change his mind. The court

would not delay the case, and defendant’s trial would begin the next day, as scheduled. If

defendant chose to represent himself, he would not have the benefit of an attorney to help

him to research, nor would he be given special access to law books. Following these initial

admonishments, the court asked defendant again whether he wanted to continue to trial with

his experienced appointed attorneyor represent himself. Defendant responded, “[i]n that case

I’ll keep [appointed counsel].”

¶ 15 Contrary to defendant’s contention on appeal, the trial court did not make “it clear it was

not happy with [defendant’s] decision,” nor were the admonishments “designed to coerce

[him] into waiving his right to self-representation.” Rather, the court’s admonishments,

which were consistent with our suggestions in Ward, were given to ensure that defendant was

making an intelligent and knowing waiver of his right to counsel.

¶ 16 We note that defendant cites People v. Rivera, 34 Ill. 2d 575, 216 N.E.2d 786 (1966), in

support of his contention that the trial court coerced him into giving up his constitutional

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right to represent himself at trial. In Rivera, the trial judge expressed his annoyance with

defense counsel, who requested a jury trial when–the day before–counsel had informed the

court that the defendant would opt for a bench trial. The judge informed counsel that he was

a “speed merchant” who would pick a jury in 15 minutes and he was “here to get rid of

cases.” (Internal quotation marks omitted.) Rivera, 34 Ill. 2d at 576, 216 N.E.2d at 787. After

conferring with the defendant, counsel informed the court that defendant would waive a jury

trial. Rivera, 34 Ill. 2d at 577, 216 N.E.2d at 787. On review, the supreme court agreed with

the defendant that “because the judge was noticeably perturbed[,] his statements had the

effect of coercing defendant into changing his mind and waiving the jury.” Id.

¶ 17 We find Rivera inapplicable here. In this case, the trial judge was not “noticeably

perturbed.” The court’s actions were “entirely appropriate and consistent with its obligation

to ensure that a defendant is made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that he knows what he is doing and his choice

is made with eyes open.” (Internal quotation marks omitted.) Foster, 391 Ill. App. 3d at 493,

909 N.E.2d at 379.

¶ 18 Case law makes clear that a trial court may appropriately attempt to discourage a

defendant from representing himself at trial. Nonetheless, we suggest that a court doing so

make clear to the defendant, perhaps even at the beginning of the Ward admonitions, that if

the defendant insists upon representing himself at trial despite the court’s urging him not to,

the court will respect that decision and permit him to proceed pro se.

¶ 19 Although the trial court in this case did not explicitly state to defendant during the court’s

Ward admonitions that the court would ultimately respect defendant’s decision to proceed

pro se if he were to adhere to that decision, the record in this case is more than adequate to

demonstrate that the court did nothing improper in its admonitions.

¶ 20 Because we conclude that the trial court’s admonishments were (1) not coercive, (2) well

within the court’s discretion, and (3) entirely consistent with Ward, we affirm.

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated, we affirm. As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

¶ 23 Affirmed.

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