SECOND DIV ISION May 25, 2010

No. 1-08-0354

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appelle e, v. RODERICK T. ALLEN,

Defendant-Appellant. ) ) ) ) ) ) ) ) ) )) Appeal from the Circuit C ourt of Cook County

Honorable Arthur F. Hill, Jr., Judge Pre siding.

JUSTICE KARN EZIS delivered the opinion of the court: Fol low ing a ju ry

tri al i n wh ich defen dant Rod eri ck A lle n re pres ente d hi msel f pro

se , defendant was found g uilty of firs t-degree mur der and home invasion and wa s sentenced to conse cutive 60-year and 25-year termsof imprisonment, r espectivel y. On appeal, defendant contends : (1) the caus e must be remanded for a hearing pur suant to Batson v. Kentucky , 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) ; (2) he was not m enta lly

comp eten t to repr

esen t hi msel f pro se pursuant to Indiana v. Ed wards , 5541-08-0354

2

U.S. ____, 171 L. E d. 2d 345, 128 S. C t. 2379 (2008); (3) his w aiver of tr ial counsel was invalid; (4) the State's comments in its openi ng statement and c losing ar gument were prej udicial; and ( 5) the trial court should have used a se parate ver dict form for felony murder instead of a general verdict form for murder. For the f ollowing reasons, we affirm the judg ment of the circui t court. BACKGROUND Defendant was convicted of th e first-degree murder of the victim, his sister, Debbie W hitebear. The record indicate s that on August 7, 2004, def endant entered his mother's home at 9043 South Cornell Avenue in C hicago and stabbed his sister sever al times in the ch est, causing her death. Defendant' s theory of thecase, whi ch he maintained throug hout pretrial , trial and p osttrial pr oceedings, w

as that he stabbed t he victim to protect their elderly mother from the victim's abuse and that his siblings were keep ing th e exis tenc e ofa rea l-est ate t rust , ofwhich d efe nda nt was the b ene fici ary,

s e c r e tfr o m h i m

. D e fe n d a n t ' s t h e o r y a l s o i n c l u d e d h i s b e l i e f t h a th i s fa t h e r , C l a u d e W. Allen, Jr, who was

deceased, was responsibl e for the disappear ance of numerous missing per

sons, whi ch he urged pol ice officers and th e State's Attor ney's office to investigate. Defendant additio nally maintained that Claude W . Allen, Jr., was not his real father and hi s real father w as an indiv idual named Carl Lewis, fro m whom he stood to inherit th e proceeds of a real -estate trus t. The pretrial pr

oceedings i n this case w ere quite l engthy due i n part to defendant being f ound n ot men tally fit t o stand trial as well a s defe ndant proceed ing pro se.1-08-0354

3

Judge Thomas R. S umner presided ov er defendant's pret rial proce edings. On September 2, 2004, As sistant Publi c Defender John C oniff was appointed to represent defendant. Defendant objected to the public defender's repr

esentation. The hal f sheet indicates that

a behavori al clinical examinati on was orde red by the court. Dr. Deborah Ferguson, a licensed cl inical psychologist, intervi ewed defendant and submitted her report, w hich was dated December 27, 2004. Her rep ort indicated that she found defendant fit to s tand trial, b ut was unabl e to render an opi nion regarding defendant's sanity at the time of the offense. The r eport also noted that alth oug h defe ndan t den ied hav ing any del usi ons o r pa rano ia, he bl amed hislife circumstances

on the fact that his

"step-father" was never pr osecuted for being a serial killer and his belief that hi s sibling s had conspir ed to prevent

him from receiv ing an inheritance from a real-esta te trust. The report noted th at it was unclear whether these beliefs wer

e delusional i n nature or had s ome basis in fact. The court ordere d another behavorial cli nical exami nation, whi ch was con ducted by Dr. J onathon Kelly , a psychi atrist, on J anuary 3, 2005. Dr. Kell y's repor t indicated that defenda nt was fit to stand trial, but did not reach an opinion regarding defendan t's sanity at the time of the offense. On January 27, 2005, defendant filed a pro se motion for withdrawal of the public defender. Defendant's at tached affidavit i ndicated that he w as displeased with the court proceedi ngs that had oc curred, hiscounsel was in collus ion with the prosecutor and the prosecutor

had tried to i ntimidate him and r etaliate agai nst him. He made1-08-0354

4

further reference to a prior court proceeding in which he accused assistant Stat e's Attorneys and a trial judge of ignoring "the docum ented exploits of a serial child killer, one Claude W. Allen Jr *** and proceeded to mal iciously prosecute the t hen and now defendant, Roderick

T. Allen, in or

der to facilitate Claude All en's efforts to cheat Roderick Al len of an inheritance." Also on that date, the court ord ered another behav orial cli nical exami nation regarding defendant's sanity in part becaus e of defendant's reques t to represent himself. Pursuant

to the court' s order, Dr . Nishad Nadkarni, a psychiatrist, intervi ewed defendant on February 23, 2005, and found defendant fit to stand trial

. In March 2005, defen dant filed several pro se motions incl uding a motion concerning the criminal background of Claude W. Allen, Jr., as w ell as a motion seeking all financial records of hismother and sibl ings w ith respect to a real-estate trust. Defendant also sou ght documents relating to an altercatio n he had with his brother, Quintin All en. Dr. Peter Lou rgos, a psy chiatrist, intervi ewed defendant on Apr il 19, 2005, and found defendant unfit to stand tr ial. Specifically Dr . Lourgos s tated "[a]lthoug h Mr. All en is able to state his charg e, describe t he roles of v arious court room personnel, and describe basi c courtroom pr ocedures, he appear

s to be harbori ng numerous persecutory

delusions r

egarding his attorney , the [S]tate's [A]ttorney, and the judge." Dr. Lourgos further stated that de fendant's "written motio n and requests to the court are replete w ith delusional material *** [which i s] substantial ly impairing his abi lity to1-08-0354

5

effectively assist couns el in his defense. " The court held a hea ring on M ay 10, 2005, i n which i t ordered Dr s. Fergus on, Kelly and Nadkarni to review defendant's pro se motions and update t heir opinions regarding his fitness. The court held a fit ness hearing on June 1, 2005. D efendant was repr esented by the publi c defender at the hear ing. Dr s. Fergus on, Kelly and Lourgos tes tified that defendant was not fit

to stand tri al. They all agreed that de fendant understood the charges against him and the courtroom proceedings, but questioned whether he would be able to assist in his defen se. They all diagnosed defen dant with psychotic delusional disorder. Defend ant's delusions included his belief that his sister, his counsel, the judge and the pro secutor were working together to "railroad" him, and his

numerous pro se filings w ere "out of touch w ith reality ." However, Dr. N adkarni stated that he found defendant fit to stand trial. D r. Nadkarni based his opini on on the fact that defendant provided rational and logical reasons for his pro se motions and defendant had written some of the inf ormation in his motions base d on his anger with how his case was p roceeding i n court. The jur y found defendant unfit to s tand trial, b ut determined that he could be restor ed to fitness w ithin a ye ar of treatment. D efendant was remanded to the Department of M ental Health and remained at the C hester Mental Health Center

for six month s where he was treated without medi cation. On February 1, 2006, Dr. Kelly found def endant fit to stand trial. Specifically, Dr. Kelly found th at defend ant "has an unde rstan ding of the ch arges agai nst hi m,1-08-0354

6

consequences of a plea, judgment or sentence, the functions of the parti cipants in the trial process and the nature and purposes of proceedin gs *** and found def endant able to assist i n his defense." Defendant, through couns el, stipulated to the report . The court made a finding tha t defendant h ad been restored to f itness and therefore was fit for trial. In June 2006, def endant again filed num erous pro se motions, incl uding a motion to proceed pro se . The tr ial court a dvis ed defend ant tha t he would beheld to the s ame standards as an attorney, to which defendant replied he under stood. The court then note d, "I belie ve tha t bec ause of t he m otio ns th at you 've f iled and t hings that you've done so far, notw ithstanding the fact that you were referr ed to the Department

of Mental Health, it appears to me that you may be capable of doing this on your own." The court then discharg ed defendant's attorney

. Defendant's add itional pro se motions incl uded a motion to dis miss based on a speedy tri al viola tion, a motion al leging a Brady violation with respect to the fitness hearing jur

y, and several motions for substitution of judge. Throug hout the pretri al proceedings defend ant filed approximately 13 motio ns for substitution of judge, which were all denied. At a hearing on May 8, 2007, the court told defendant: "Mr. Alle n, I'm going to tell you this. I've been tryi ng to make sens e of where you're going with much of this. A lot of this we've covered and I'm not sure you are understanding what's going on here in terms of- - I'm1-08-0354

7

trying not t o pre vent yo u fro m ass ertin g your d efe nse b ut I re ally ha ve

some co ncerns

and I' m just

goin g to s ay th is for

the re cord. I have some concerns about what's going on here in terms ofwhat it is that you are doing and how

you are pr

oceeding and y

our perception about our proceedingshere and so I hav e a bona fidedoubt once agai n about whether or

not you are fit to stand tri al. And, I'm g oing to have you examined once ag ain. Just to be certain." Dr. Kelly examined defendant on May 23, 2007, and found defendant fit for tri al. Defendant's case w

as transferred to Judge Art hur F. Hil l, Jr., for a jury tr ial that commenced on Nov ember 13, 2007. The cour t review ed the waiver of counsel w ith defendant and defendant confirmed that he still w

anted to represe nt himself. The report of proceedings indicate s that defenda nt informed the cou rt that he was 51 years old and had gr

aduated from the University of Illinois i n 1981 with an engineeri ng degree. The cour

t told defendant: "I can see that y

ou are a ver

y artic ulate and ver

y intell igent man. And I say these th ings first

off so the record i s clear, al so to let you know that I have a bit of a feel for you in terms of your i ntelligence and your articulati on." At trial, Paula Powers, who is also defendant's sister, test ified that their mothe r, Frances Allen, suffe red from Alzheimer's and dem entia and the victim, their sister, Debbi e, had mo ved i nto the ir mot her'shome to help ta ke car e of her. Powe rs became1-08-0354

8

their mother's

legal g uardian throug h guardianshi p proceedings after their mother

had been diagnosed with Alzheimer's and deme ntia. According to Powers, their mother did not allow defendant inside the house because de fendant had threatened to kill Debbie for the last 20 years. She furthe r stated that Debbie had nu merous restraining orders filed against defendant. On cross -examinati on, defendant asked Powers if she knew of anyone else c laiming to be defendant's father, to which she responded in the negative. Mary Ex son testified that

she is Fr

ances Allen's

caregiver. She stated that on the morning of Aug ust 7, 2004, she and Frances left t he house to go to the store. When they left, she saw defendant s tanding outsi de the house. When they returne d, defendant was sti ll standing outside the house . Defendant helped hi s mother out of the car and up the stairs to the fron t porch. Fr ances wanted to keep talkin g with defendant but Exson tr ied to get her to come inside the house. Exson knew tha t defendant was not allowe d inside the hous e. Debbie came out of the house and gr

abbed Frances to get her inside the house. Defen dant entered the ho use and hit Debbie several times in the back of the head and n eck, knockin g her to the ground. Defendant straddled Debbie, held hi s hand over her neck and r emoved a knife from hi s pocket. Ex son ran outside and yelled for help. She saw defendant pul l down a w indow cur tain and then Frances came out

of the house. On cr

oss-examin ation, defendant ques tioned Exson about Debbie's pets that lived in the house, s tating that t here were three cats and t hree dogs. Ex

son denied any

knowledg e of Debbie using her dog to abu se Frances. Exson also stated that

Debbie had told her of a prior instance in w hich defendant trie d to1-08-0354

9

attack Debbie. Kenneth Brooks te stified that he w as worki ng in the yard sever al houses away from Frances Al len's house w hen he saw a w oman come out of the house y elling "hel p" and "he's got a knife." Broo ks alerted a neighbor, Shirley Brown, who was a police officer. Brooks saw another woman come out of thehouse and then someone i nside slammed the front door shut and closed the front wi ndow curtai n. Officer Shirley

Brown tes tified that w hen she approached t he house she tri ed to get in the front

door and back door

but they w

ere both locked . She further stated that she made two te lephone calls to 9-1-1. David Welsh, a firefighte r with the Chicago fire department, tes tified that w hen he arriv ed on the scene, he saw the v ictim ly ing face-dow n in a pool of blood. She had multiple stab w

ounds to the chest

area around the h eart. Defendant was appr

ehended later that evening. Detective John Fassl testified that he interv iewed defendant at the police sta tion that ev ening. After ad vising defendant of his Miranda rights, defendant state d that he had gone to his mot her's house that morning , but Debbie w ould not let hi m inside. He walked ar ound the neighborhood and then returned to the house and sat on the front porch. W hen his mother returned from the store, he he lped her out of the car but Debbie w ould not let him inside the house and he became upset . He admitted to pushing Deb bie and stated, "I just

snapped." Defendant dec lined to talk further. Detec

tive Fass l noticed some spots on defendant's shorts that ap peared to be dri ed blood. He pl aced the1-08-0354

10

shorts in an evidence bag for testing. Lisa Fallara testified she is a fo rensic scientist in the areas of biology and DNA analysisand is employed with the Illinois S tate Police F orensic Sci ence Center. S he tested the shorts defendant had been wearing for thepresence of blood an d found that they tested po sitive. She sent the shor ts to a private forensic company for further testing. M ichael Cari ola, a repres entative from th e Bode Technology Group, testi fied that the blood found on th e shorts matched the victi m's blood sample. Dr. V aleri e Arang elov ich te stifie d that s he cond ucted a n autops y on t he vi ctim. The victim had three stab w ounds to her ches t and multiple i ncised wou nds on her hands, whic h are also r eferred to as defensiv

e wounds. D r. Arangel ovich deter mined the cause of death was from multiple s tab wounds and she classified the manner of death as homicide. On cross- examination, Dr. Arang elovich s tated that she did not find any evi dence of the vic tim having been grabbed by the neck or hi t in the back of the head or neck. Defendant testified on h is own behal f. He admitted to s tabbing the v ictim tw ice, but speculated tha t an officer who came on the scene l ater inflicted the third stab wound. He s tated that he stabbed Debbie in ord er to protect their mother from Debbie 's ongoin g abuse. Defend ant clai med th at Debb ie forc ed thei r mothe r to engage in acts of beastality with Debbie's dog, Debbie fed their mother substances tha t were not fit for human consumpti on and that on one occasion, their mother was l eft on the floor for sever

al hours becaus e she was un able to get up. On cross- examination,1-08-0354

11

defendant admitted that his moth er had not told him about any abuse, but that he could tell she had been abuse d by the look on her face and the y way she leaned on him when he helped her up the stai rs that day

. The jury found defendant g uilty of firs t degree murder and home invas ion. Defendant now appeal s. ANALYSIS Batson Issue On appeal, defe ndant first contend s that the cause must be rem anded for a hearing pur

suant to Batson v. Kentucky , 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), because the trial court improperl y collaps ed the three-step Batson procedure when it denied defenda nt's Batson objection. In Batson , the Supreme Cour t held that it was a v iolation of the eq ual protectio n clause o f the f ourtee nth am endme nt for t he prose cution to use a p erempt ory challen ge to exclude aprospective juror sol ely on the bas is of race. Batson , 476 U.S. at 89, 90 L. Ed. 2d at 82-83, 106S. Ct. at 1719, The Batson Court provided a three-step procedure for evaluatin g claims of di scriminati on in jury selection. Mack v. Anderson , 371 Ill. App. 3d 36, 44 (2006). First, t he moving p arty must make a prima facie showing that the nonmoving par

ty exer cised its pe remptory c hallenge on th e basis of race. Mack , 371 Ill. App. 3d at 44. Seco nd, if the moving party makes a prima facie showing , the burden shifts to the nonmov ing party to articul ate a race-neutr al reason for ex

cluding eac h of the venirep ersons in q uestion. Mack , 371 Ill. App. 3d at 44. Third, th e trial court1-08-0354

12

evaluates the reasons provided by the nonm oving party as well as the moving party's claim that the pr

offered reasons are pr

etextual. Mack , 371 Ill. App. 3d at 44. To sa tisf y Batson 's first sta ge of making a prima facie showing , the moving party must produce ev idence sufficient topermit the tr ial court to draw an i nference that discriminat ion has occur red. People v. H ogan , 389 Ill. App. 3d 91, 99 (2009). The court must cons ider the total ity of the re levant facts a nd all the rel evant cir cumstances. To determine wh ether a prima fa cie showing has been establi shed, the court may conduct a "comparat ive juror analysis," as well as consider additional factors, such as: (1) the rac ial identity

between the par

ty exer cising t he peremptory

challenge a nd excluded venirepersons; (2) a patter n of strikes ag ainst African- Americans on the venire; (3) a disproportionate use of pe remptory challenges against African-American s; (4) th e leve l of A fric an-A meri can r epre sent atio n in t he ven ire as comp ared to th e jury; (5) the pr osecut or’s quest ions and statem ents of the cha llenging pa rty during voir dire examination and while ex ercising peremptory challenges; (6) whe ther the exc luded African-American venirepersons were a hetero geneous group sharing race as their only common characteri stic; and (7) the race of the defendant, victim, a nd witness es in the

case. Hogan , 389 Ill. App. 3d at 99-100. We will not overturn the trial court's determination on a Batson claim unless it is cl early er roneous. People v. Davis , 233 Ill. 2d 244, 261 (2009) ( Davis II ). After voir dire , but before the jur y had been sw

orn in, the cou rt informed defendant and the State that one of the jurors had a medical emerg ency and w ould be1-08-0354

13

dismissed from the jury. The court sugg ested that the firs t alternate j uror, Mr. Macon, be put on the jur

y. Defendant di d not object to t he court's s uggestion, but instead informed the cou rt that he was filing a "Motion To Discharge Jury Panel." Defen dant's motion allege d that the jury panel should be d ischarged "due to the exc lusion of all men of African blood from the jury" because "the State removed every person who was male and of the def endant's race from th e jury." The one-page motion alleged no specific facts to support t he allegati on of discrimina tion. The court noted that Mr. Macon was African-American, and the follow ing coll oquy then occurred:

"THE COURT: Y

ou can feel free to file it at your leisure. I will say that, I wi ll say t hat as I observed the jury selection pr

ocess, there w

as no indication of any purposef ul disqualification of any juror of an y race, color, or creed, as I watched th e process. I listened to t he responses of many of the jurors. It should be note d that some of the jur ors who hap pened to be Africa n-Amer ican ma les were tr ying their

best to get off the ju ry. Some were chal lenged for caus e successfully . That was ag reed to by t he defense. You can fil e your motio n. You can pr eserve that

for the record. DEFENDANT: Thank you. THE COURT: I wanted to make that statement as a matter of record and you can file that mot ion. Understanding what it is, I will respectfully

deny it at this time. * * *1-08-0354

14 THE COURT: That' s fine. So the re cord should r eflect that the defendant 's motion to discharge the jury for removal of all black ma les - - DEFENDANT: Right i t. Was three on there. One I ag reed for cause, the other two the Stateused their c hallenges on, is that cor rect? MR. CLARK [Assistant State's Attorney ]: I don't re call. THE COURT: I was try ing to be sur e about the titl e of your motion. Motion to dis charge jur y panel is

denied." Defendant argues that the trial court denied hi m the opportunity to make a prima facie showing of discriminat ion as requ ired by t he first stag e of the three-step Batson procedure. D efendant maintains that instead of follow ing the prope r procedure, the trial court reli ed on its ow n observati ons to make a judi cial determi nation that the Sta te had not engaged i n any purpose ful discrimi nation. We disagree. It is tr ue that the Batson procedure cons ists of three s tages. Howeve r, a Batson claim wi ll not procee d beyond the fir st stage i f the movant does not make a prima fa cie showing that the nonmoving party exercised its peremptory challenge on the basis of race. This is exactly what occurred here. Defendant filed his written motion to dischar ge the jury

on the basis th at African-Ameri can men had been removed from the jury by the State. The bare-bones motion did no t contain any specific facts to support t he allegati on of discrimina tion. To make it beyond stag e one, defendant must produce ev idence sufficient topermit the tr ial court to draw an inference that dis crimination had occurred. Defendant's motion w as inadequate to1-08-0354

15

make a prima facie showing of discriminat ion. Additiona lly, the part of the report of proceedingsthat briefly discussed themotion did not contain any s pecific facts that would suppor

t an inference that discriminat ion had occurr ed. We are not persuaded by defendant's reliance on Hogan or People v. Davis , 231 Ill. App. 3d 349 (2008) ( Davis I ). In Hogan , this court reversed and remanded the cause for a new tr ial because i t determined that the trial court had not follow ed the three-step Batson procedure w hen it did not al low defense coun sel the opportuni ty to make a prima facie showing of discriminat ion before it pr oceeded to the State' s reasons for excluding the juror and ultimately making its

ruling. Hogan , 389 Ill. App. 3d at 101-02. In Davis I , this court

reverse d and remanded the caus e for a Batson hearing because the trial court collaps ed the three-step Batson procedure into one step when it conside red only whet her the State co uld of fer a ra ce-neu tral expla nation for strik ing a juror. Davis I , 231 Ill. 2d at 368-69. Hogan and Davis I make clear that when there is a Batson objection, the trial court must all ow the defendant the opportunity to make a prima facie showing of discriminat ion before the cour t determines w hether it isnecessary to proceed to th e second and third stages. Here, however, as stated abo ve, defendant's Batson objection occurred afte r voir dire proceedings and was made i n the context of a written motion that was devoid of any specific facts. Therefore, we find that defendant was provided w ith an opportuni ty to make a prima facie showing of discrimination (in his motion), but fell woefully short. We conclude the tri al court pro perly found that1-08-0354

16

defendant did not prese nt a prima facie case of a Batson violati on and thus the tr ial court's anal ysis pr

operly ended at the first stage. Under these circums tances, the tri al court's deni al of defendant's motion w as not clearl y erroneous

. Pro Se Representation Next, defendant contends the tri al court shoul d not have per mitted him to repr esen t hi msel f pro se because he was not mentally competent to do so. Defendant argues that a lthough he w as found mentally

competent to stand t rial, he w as not mentally co mpetent to conduct hi s own defense. Defe ndan t re lie s on the S upre me Co urt opi nion of Indiana v. Ed wards , 554 U.S. ___, 171 L. Ed. 2d 345, 128 S. Ct. 2379 ( 2008). Defendant ar gues that Edwards stands for the pro position that t he federal consti tution allow s for a higher

standard than just basic fit ness when th e defendant chooses to r epresent himsel f. Defendant maintains that th e trial cour t should hav e conducted a separ ate inquir

y or heari ng as to whether he w

as competent to pr

oceed pro se

. The issue in Edwardsconcerned a criminal defendant w hom a state court found mentally co mpetent to stand tr ial if repres ented by couns el but not mentall y competent to r epre sent hims elf pro se at trial. The Supreme Court considered w hether under these circums tances the Const itution forbade a s tate from insist ing that the d efendant proceed to tri al with counsel, thereb y denyi ng the defendant the r ight to rep resent himself. The Court

found that it was constituti onal for a state todeny the defendant th e right to r epresent himsel f if the defendant was not mentally competent to do so.1-08-0354

17

Edwards , 554 U.S. at ___, 171 L. Ed . 2d at 351, 128 S. Ct. at 238 2. In reaching this dete rmi nati on, t he C ourt note d its "fo unda tion al ' sel f-re pres enta tion ' ca se" o f Fare tta v. California , 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975) , which he ld that the sixth and four

teenth amendments incl ude a constituti onal right to proceed w ithout counsel wh en a criminal defendant voluntar ily and i ntelligent ly elects to do so. Edwards , 554 U.S. at ___, 171 L. Ed. 2d at 352- 53, 128 S. Ct. at 2383. Howe ver, the Court made clear

that Faretta did not answer the questi on presented in Edwards because Faretta did not concer n a defendant with mental competency issues, or

what is sometimes called a "gray-area" def endant. The Court reiterat ed that the question in Edwardsconcerned w hether there w as a mental-il lness-rel ated limitati on on the scope of the right of sel f-representatio n. Edwards , 554 U.S. at ___, 171 L. Ed. 2d at 353, 128 S. Ct. at 2384. In finding that it was constitutional to limit thi s right, the Court reas oned that an indiv idual may w ell be able to satisfy the mental competence stand ard to stand trial when represented by counsel, yet may be unable to carry out the basic tasks needed to present hi s own defense w ithout the help of counsel. Edwards , 554 U.S. at ___, 171 L. Ed. 2d at 355, 128 S. Ct. at 2386. The Court al so noted that "mental illnesses can impair the defe ndant's ability to play the significantly expanded role required for

self-represe ntation even i f he can play th e lesser r ole of represented defendant. [Citation .]" Edwards , 554 U.S. at ___, 171 L. Ed. 2d at 356, 128 S. Ct. at 2387. The Court addi tionally noted that, "a ri ght of self-repr esentation at tr ial wi ll not 'affirm the dignity' of a def endant who lacks the mental cap acity to conduct his defense1-08-0354

18

without the assistance of coun sel. [Citat ion.]" Edwards , 554 U.S. at ___, 171 L. Ed. 2d at 356, 128 S. Ct. at 2387. Initially , we note that

despite defendant's contention, Edwardsdid not hold there was a higher standard of compete nce requiring an additional inquiry before a trial court permitted a defendant to proceed pro se . Rather, Edwardssimply hel d that a defen dant 's r igh t to sel f-re pres enta tion was not a bsol ute a nd co uld be l imi ted i f a defendant was not mentally competent to proceed pro se , yet was still competent to stand trial with repr

esentation. Defendant maintains t hat his behav ior throug hout trial i ndicated that he w as not mentally co mpetent to proceed pro se . He points to his "biz arre" theory of the case that concerned his family memb ers, a real-estate trust, his mother's guardiansh ip proceedingsand his cri minal alleg ations rega rding Cl aude W. Allen, Jr. Here, once defendant w as found fit to stand tr ial, the tri al court all owed him to proceed pro se based on his re peated requests to allow his public defender to withdraw. The court noted that def endant was intelligent and capable of conducting his own defense. De fendant performed all of the duties that an attorney would do, including making an openi ng statement and c losing ar gument, cross -examining witnesses , entering exhibits into evidence, objecting to witnes ses' testimony and submitting jury instructions. The record does show obvious def iciencies in defendan t's self-representation as a resu lt of defend ant not being an attorney. However, these deficiencies were not the result of mental incompeten ce. Defendant was able to carry1-08-0354

19

o u tt h e b a s i ct a s k s n e e d e d t o p r e s e n th i s o w n d e fe n s e w i t h o u tt h e h e l p o f co u n s e l

. We heed the directi on of the Court in Edwardsthat a "gray -area" defendant may

be fit to stan d tr ial , ye t not

fit to pl ay t he si gni fica ntly exp ande d ro le r

equ ire d of s elfrepresentation . However, this defendant do es not fit wi thin that chara cterizat ion. Further, defendant' s argument on t his issue i nvites thi s court to su bstitute its judgment for that of the trial cour t regardi ng whether

he was mental ly competent to proceed pro se . His rel iance on Edwardsin advanci ng his arg ument is misplaced. Nothing in Edwardsrequi res a trial cour t to d o what def end ant n ow argu es sh ould have been done, i.e. the forced denial by the trial court of defendant's ri ght to procee d pro se although he w

as found mentally

competent to stand t rial. The re cord establi shes that the defendant was ar

ticulate w hen he engaged i n discussion with the trial cour t and the prosecutor during the proceedings. In f act, two trial judges had clearly given much attention to the i ssue of defendant's mental ability to represent hi mself. Defendant went to great le ngths to conv ince the tri al court that he was mental ly fit to pr oceed pro se

. The trial cour

t engaged i n exchanges with defendant t hat outlined the d ifficulties inherent in pro se representati on. Yet, the d efendant remained adamant i n his desir e to discharge his defense attorney and proceed pro se . The discussi ons between def end ant a nd th e tria l cou rt sho w artic ulat e, cle ar, ve rbal excha nges . Sub sequ entl y, the trial court had a final, e xtensive, and articul ate exchang e with defendant. Defendant outlined hi s educational ba ckground and assured the tr ial court t hat he unde rstood a nd ac cepted th e per ilsof pro se representati on. The exchang e ended with1-08-0354

20

the fo llowing: "DEFENDANT: Judge Hil l if you g ive me a fair trial, I feel confident justice will be served. THE COURT: Al l right. The court finds th at the defendant has know ingly and intellig ently made the decision to r epresent himsel f in this jur y trial ." Defendant's arg ument suggest s that Edwardsrequired the trial j udge to apply a higher standard than that required to determine mental fitness to stand t rial, sin ce he was procee ding pro se

. Edwardsestablishes no such requi rement. The defendant hav ing used all of his skill and capacity to convince t he trial cour t of his mental fitnes s, cannot now say that the court should have l ooked beyond the information it w as provid ed and somehow discern unfitness to pr oceed pro se . There is no s upport in Edwardsfor such a theory. The trial judg e conducted the matter appropriatel y based on the information before the court. Moreover , we disag ree with defendant's characte rizatio n of his defense theory as "bizarre." W e view it more as his poor choice to pursue a defense that the evidence did not support. D efendant consistentl y maintained that he stabbed his sister i n defense of his moth er. How

eve r, b ecau se de fenda nt di d not unde rst and t he l ega l co ncep t of s elfdefense, much of the evi dence he sought to admit at tri al was deemed irrelevant. The court even rejected defend ant's proposed jury instruction on self-de fense because defendant had not presented suf ficient evidence at trial to warrant a self-def ense instruction . Defendant was misguided by

his own c hoices, not hi s lack of mental1-08-0354

21

competence. We find no error in t he court permit ting defendant to r

epresent himsel f. Waiver of Counsel Next, defendant contends his waiver of couns el at trial was inv alid. He ar

gues that because the trial court mi sled him on several occasi ons regardi ng his abil ity to properly issue subpoenas , his wai ver of counsel was not k nowing a nd voluntar y. Specifically, defenda nt maintains that beca use he sent his subpoena s by mail, which Judge Sumner adv ised defendant he coul d do, they had n o legal effect becau se doing so violated Cook County Circuit Court Rule 15.3(b), w hich prov ides that a subpoe na may not be ser

ved by a party. Cook County

Circuit Court Rule 15.3(b) prov ides in part: "A subpoena may be served by the sheriff, by his deputy o r by any person over 21 years of age and not a party. Service of a subpo ena shall be made by deli vering a copy ther eof to the person named." Cook Co. Cir. Ct. R. 15.3(b). Defendant points out t hat as a resul t of the court's misinformation, none of the witnesses

he subpoenaed showed up at trial , which l eft him with nowitness es or evidence at trial other

than his ow n testimony. The State responds t hat defendant's serv ice of subpoenas by mail wasproper because Rule 15. 3(b) merely sets forth w ho may serv e a subpoena and to w hom the subpoena should be delivered. It maintains that the rule doe s not support defen dant's position that s erving a subpoena by mai l has no leg al effect.1-08-0354

22

Here, regardless whether the court's statements regarding def endant's subpoenas wer

e misleading , defendant, acting as his ow n attorney, must comply w ith the rules of procedure requi red of attorneys, and a court will n ot apply a mor e lenient standard to pro se litigant s. People v. F owler , 222 Ill. App. 3d 157, 163 (1991)

. Defen dant was a dmoni shed ab out the consequ ences o f proce eding pro se and that he would be r

equired to pe rform as an attorn ey woul d and the court c ould not prov ide any legal assi stance to him. D efendant informed the court that he fully

understood the court's admonit ions and that he w anted to proceed pro se . Thus, defendant complai ns of a situation enti rely of his own making . It is well settled that a defendant may not be heard to complai n of errors that he injected i nto his ow n trial. People v. Scott , 148 Ill. 2d 479, 531 (1992). We find that any statement the tr ial court made regarding subpoenas did not ac

t to nullify

defendant's wai ver of counsel

. Opening Statement and Closing Argument Next, defendant contends the State's comments in its

opening state ment and closing ar

gument denied him a fair trial because the State commented on his ri ght to proceed pro se. Defendant arguesthat the State r epeatedly in voked the theme of "control" to ex plain why defendant stabbed the v ictim and w hy he chose to represent himself, whi ch denied him a fair trial becaus e defendant's assert ion of his consti tutional right to r epresent himsel f cannot be used as ev idence of guil t in a crimi nal trial. Defendant points to t he State's follow ing comments i n its opening statement. "The defendant who sit s before you toda y, he likes control. He likes to1-08-0354

23

control the situation. Tha t's part of the reason he's sitting their [ sic] alone today. * * * This defendant on Augus t 7th of 2004 resented the fact that he had no control over the situati on with hi s mother and Debbi e Whitebear. Debbie W hitebear was the obstacle at that po int on that day between him and his mother. And his way to get control of that situa tion was to take her out, and that' s what he di d. He committed t he offense of first degree murder." Defendant points to t he State's follow ing comments i n its closi ng argument. "The reason why we have been in this courtroom for the past four days is the defendant's insat iable appetite for control over his sic k mother, her property, and his sibling rivalry, and his perception that his siblings were being favor

ed or treated di fferently than he w as. Him being treated unfavorably

as opposed to his

two sis ters. That isessentially what has motivated thi s defendant to take the life of Debbie All en Whitebear. * * * And he again as serted control over the s ituation taki ng the life of Debbie Allen Whitebear. He controlled t he situation, heseized co ntrol of that situation by bursti ng into that h ouse and plungi ng a knife into the chest of Debbie Al len Whitebear. He seiz ed control of his own defense by1-08-0354

24

sitting al one at that table. But when y ou retire to the jury room, he is not in control of your verdict. You control that. And you can control the f act that you can b ring defendant to justice for thekilling of Debbie Allen Whitebear by finding him g uilty of firs t degree murder on all counts ." The c hara cter

and s copeof an atto rney's o peni ng a nd cl osi ng a rgu ment s ar e le ft to the trial court's dis cretion, and pr osecutors ar

e afforded wide l atitude in thei r closing arguments. People v. Ellis , 315 Ill. App. 3d 1108, 1121 (2000) . Prosecutor s may comment on the relev

ant evidence as well as any fair a nd reasonable i nferences therefrom. People v. N icholas , 218 Ill. 2d 104, 121 (2005 ). A prosecutor's remarks will not warrant a new trial unless they are so prejudicial to the defend ant that, absent tho se remarks, ther

e is doubt as towhether th e jury w ould have r

endered a guil ty ver

dict. People v. N ieves , 193 Ill. 2d 51 3, 532-33 (2000) . When our consideration impl icates the legal question of whether a prosecuto r's comments warrant a new trial, our review is de novo

. People v. Wheeler , 226 Ill. 2d 92 , 121 (2007). Defendant argues that the State's continued emphasison his desir e for control was improper as it related to his constitutional right to represent himself at trial. Here, we find no error in the State's comm ents. The State's com ments simply acknowledged that defen dant was "sitting alone" at the def ense table. The Stat e did not go in any details about defe ndant's pro se representati on and did not ask the jury to draw any

negativ e inferences from that representation . The State's addi tional comments that de fendant stabb ed the decedent be cause of his desire for con trol was a1-08-0354

25

fair inference from the evidence pr esented at tria l. We do not find that but for the State's remarks, the verdict would have been any diff erent. Further, we reject defendant's contention that we shoul d equate the State's acknow ledgment of defendant representing himself wi th a prosecutor 's comment on a defendant' s failure to tes tify at trial. General Verdict Form Lastly, defendant con tends he was denied a fair trial because a general verdict form was used r

ather than separ

ate verdic

t forms for the various theori es of first-deg ree murder wi th which d efendant was char ged. Defendant ar

gues that becaus e a general verdict form was used, the jury' s verdic t did not reflect

whether i t found him guilt y of intentional murder, knowing murder or fe lony murder. He maintains that if the jury found him guilty of fe lony murder, such a finding would have precluded the trial court from sentencing him to consecuti ve terms of imprisonment for murder and the underlyin g felony of home i nvasion. D efendant argues that we should vacate the convicti on and sentence for home i nvasion. The off ense of first-degree mu rder is defined as: "(a) A person who kil ls an indiv idual wi thout lawful j ustification commits first degreemurder if, in pe rforming the ac ts which cause the death: (1) he either

intends to ki ll or do g reat bodily harm to that indi vidual or another, or

knows that

such acts w ill cause de ath to that individual or another; or1-08-0354

26 (2) he know

s that such acts crate a str ong probabil ity of death or great bodil y harm to that individ ual or another; or (3) he is at

tempting or committing a forc ible felony ot her than second degree murder." 720 ILC S 5/9-1(a) (West 2006). In Illinois, it is clear that, where a general murder verdict is delivered for a defe ndant who is charge d with murd er in mult iple cou nts alle ging inten tional, knowing, and felony murder , the defendant is pr esumed to be conv icted of the most serious offense of intentional murder , and judgment and sentence should beentered on that count. People v. Br

aboy , 393 Ill. App. 3d 100, 107 (2009) . However, when a defendant who is charged with intentional or knowing murder and felony murder requests a separate verdict form for f elony murder and such a request has a basis in the evidence presented at tr ial, the separ ate verdic

t form must be gi ven or cons ecutive se ntences cannot be imposed bas ed on the offense underly ing the felony murder. Peop le v. Smith , 233 Ill. 2d 1, 10 (2009); see also People v. Battle , 393 Ill. App. 3d 302, 313 (2009) (w hen a defendant reques ts separate verdict forms for t he separate theor ies of murder, and the request is denied , the general verdict form must be interpre ted as a finding of guil ty of felony mur der and the defendant canno t be convic ted of the underlyin g felony). Here, defendant did n ot request s eparate ver dict forms. Therefor

e, Smith is inapplicable since Smith is limited to situations in whic h the trial court actually denied a request for s eparate ver dict forms. Braboy , 393 Ill. App. 3d at 108. As s uch, defendant1-08-0354

27

is presumed guilty of the most serious of fense of inte ntional murder and the trial court's judgment and sentence was pr oper. Accordingl y, we affirm the judgment of the circuit court. Affirmed. CUNNINGH AM, P.J, and H OFFMAN, J ., concur.1-08-0354

28 REPORTER OF DECISIONS - ILLINOIS APPELL ATE COURT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appelle e, v. RODERICK T. ALLEN,

Defendant-Appellant.

No. 1-08-0354 Appellate Court of Illinois First Di strict, Second Divi sion May 25, 2010

JUSTICE KARN EZIS delivered the opinion of the court. CUNNINGH AM, P.J. and H OFFMAN, J ., concur. Appe al fr om th e Circ uit Co urt o f Coo k Cou nty. The Hon orable A rthur F. Hil l, Jr., Jud ge Presidi ng.

For APPELLANT, M ichael J. Pel letier, State Appellate Defender , Patricia Unsinn, Deputy Defender (Katherine M. Dona hoe, Assistant Appellate Defender, of cou nsel) For APPELLEE, Ani ta Alvarez , State's Attorney of Cook Co unty (James E. Fitzg erald, Ashley A. Romito, Jessica R. Ball, Assistant State's Atto rneys, of counsel)