People v. Tucker ( 2008 )

FIRST DIVISION
May 27, 2008
No. 1-06-2816
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
LARRY TUCKER, ) Honorable
) Marcus R. Salone,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
This case concerns a constitutional right so highly valued
that harmless error analysis will not be applied to its
violation. We refer to a criminal defendant’s right to retained
counsel of his choice.
Defendant Larry Tucker was convicted by a jury of two counts
of criminal sexual assault. He was sentenced to two consecutive
four-year terms in prison.
The main issue on appeal is whether the trial court abused
its discretion in denying defendant’s motion for a continuance to
substitute counsel after a brief inquiry about the circumstances
of the request. Defendant also contends the trial court
erroneously instructed the jury pursuant to IPI 3.11, and the
trial judge’s instructions to the jury unduly pressured a
minority juror. We reverse and remand.
FACTS
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At trial, defendant’s daughter, L.B., testified defendant
sexually assaulted her on December 18 or 19, 2004, and twice a
week for several months afterward. The last assault occurred on
April 16, 2005, L.B.’s 14th birthday. On May 15, 2005, L.B. told
her mother defendant had raped her. L.B.’s friend and cousin
testified L.B. told them her father had raped her. Two
detectives testified defendant made unmemorialized, incriminating
statements about an incident that occurred in January 2005. The
defendant told detectives L.B. had asked him about sex, and he
"showed" her by touching his penis to her vagina.
The defense presented evidence that on August 3, 2005, L.B.
told a defense investigator she had fabricated the allegations.
She signed a typed version of her statement. L.B. returned to
her original statement at trial. She testified she had lied to
the investigator because her father’s friends had threatened her.
DECISION
Defendant contends the trial court abused its discretion
when it denied his request to change counsel. He contends the
court failed to conduct an adequate inquiry into the
circumstances surrounding his request.
On the date scheduled for defendant’s jury trial, Mark
Gottreich, defendant’s privately retained attorney, told the
trial judge he had "lost contact with [his] client" since the
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last court date, approximately three months earlier. He told the
court defendant did not want him as his attorney and had hired a
new attorney. The judge replied, "Oh, well, what can I tell you?
It may be a basis for some further review. No, you’re going to
trial today, sir."
When the case was recalled later that day, the following
colloquy took place:
"THE COURT: *** Mr. Tucker, you said that
when this case was originally called--I don’t know
if it was you or counsel who indicated that you
had retained another attorney.
THE DEFENDANT: Yes.
THE COURT: Who is that?
THE DEFENDANT: Jerry Lipschultz (phonetic
spelling) I believe. My brother know who he is
out there.
THE COURT: Have you ever talked to that
person?
THE DEFENDANT: Yes.
THE COURT: Okay. Where did you talk to that
person? Where were you when you had that
conversation?
THE DEFENDANT: Over the phone. My family
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talked to him.
THE COURT: You’ve not talked to him?
THE DEFENDANT: Yes. He told me to call him
today after court.
THE COURT: Okay. So, to the best of your
knowledge, he has not been given any money?
THE DEFENDANT: No. He told me to call him
after the Court today.
THE COURT: Okay. He was not here today?
THE DEFENDANT: No.
THE COURT: Do you know what he looks like?
THE DEFENDANT: No.
THE COURT: Okay. Well, I know a Lipschultz,
who’s not present. And it should also be
indicated that no one other than counsel of record
has stepped up on behalf of Mr. Tucker here today.
All right.
MR. GOTTREICH [Defense Attorney]: Judge, just
for the record, what my client indicated to me
today was that he wanted a different attorney.
That was also indicated by his family who’s here
today. And I made that apparent to the Court
earlier and asked to withdraw based on that.
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THE COURT: I understand. This matter has
been set for trial on at least two other
occasions."
Following the above discussion, the parties proceeded to the
jury trial.
The sixth amendment to the United States Constitution
provides: "[i]n all criminal prosecutions, the accused shall
enjoy the right *** to have the Assistance of Counsel for his
defense." U.S. Const., amend. VI. The right to retained counsel
of one’s choice "has been regarded as the root meaning of the
constitutional guarantee" in the sixth amendment. United States
v. Gonzalez-Lopez, 548 U.S. 140, __, 165 L. Ed. 2d 409, 419, 126
S. Ct. 2557, 2563 (2006), citing Wheat v. United States, 486 U.S.
153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697
(1988); Andersen v. Treat, 172 U.S. 24, 30, 43 L. Ed. 351, 353,
19 S. Ct. 67, 70 (1898).
The right does not depend on whether defendant received a
fair trial or was prejudiced by the representation he received.
Gonzalez-Lopez, 548 U. S. at __, 165 L. Ed. 2d at 419, 126 S. Ct.
at 2563. Deprivation of the right is a "structural error" not
subject to harmless error review. Gonzalez-Lopez, 548 U. S. at
__, 165 L. Ed. 2d at 420, 126 S. Ct. at 2564-65. That is,
"In sum, the right at stake here is the right
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to counsel of choice, not the right to a fair
trial; and that right was violated because
the deprivation of counsel was erroneous. No
additional showing of prejudice is required
to make the violation ‘complete.’ "
Gonzalez-Lopez, 548 U. S. at __, 165 L. Ed.
2d at 418, 126 S. Ct. at 2562.
The right to counsel of choice, while fundamental, may be
limited in some cases. A criminal defendant has no right to
select an attorney he cannot afford, or one who is not a member
of the bar, has a conflict of interest, or declines to represent
him. People v. Howard, 376 Ill. App. 3d 322, 335, 876 N.E.2d 36
(2007), citing Wheat, 486 U.S. at 159, 100 L. Ed. 2d at 149, 108
S. Ct. at 1697. A defendant who abuses the sixth amendment in an
attempt to delay trial and thwart the effective administration of
justice may forfeit his right to counsel of choice. Howard, 376
Ill. App. 3d at 335; People v. Childress, 276 Ill. App. 3d 402,
413, 657 N.E.2d 1180 (1995).
It is within the trial court’s discretion to determine
whether the defendant’s right to selection of counsel unduly
interferes with the orderly process of judicial administration.
People v. Burrell, 228 Ill. App. 3d 133, 142, 592 N.E.2d 453
(1992). A determination of the issue turns on the particular
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facts of each case. People v. Little, 207 Ill. App. 3d 720, 724,
566 N.E.2d 365 (1990).
"In balancing the judicial interest of trying the case with
due diligence and the defendant’s constitutional right to counsel
of choice, the court must inquire into the actual request to
determine whether it is being used merely as a delaying tactic."
Burrell, 228 Ill. App. 3d at 142. Factors to be considered
include: whether defendant articulates an acceptable reason for
desiring new counsel; whether the defendant has continuously been
in custody; whether he has informed the trial court of his
efforts to obtain counsel; whether he has cooperated with current
counsel; and the length of time defendant has been represented by
current counsel. Childress, 276 Ill. App. 3d at 411; Burrell,
228 Ill. App. 3d at 142. The court does not abuse its discretion
in denying a motion if new counsel is not specifically identified
or does not "stand ready, willing, and able" to make an
appearance on defendant’s behalf. Burrell, 228 Ill. App. 3d at
142.
Defendant contends there is no evidence he requested new
counsel in order to delay the proceedings. Defendant informed
the court he had hired new counsel. He identified the new
attorney by name. Defendant had been in continuous custody and
had not requested any trial continuances prior to the motion for
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new counsel. The case had been set twice for a bench trial. On
both dates, the case was continued because one of the State’s
witnesses was unavailable. On the last date before trial, the
parties participated in a 402 conference, after which a date was
set for jury trial. All other continuances in the case were by
order of court or by agreement of the parties.
The State contends defendant’s request, made on the day of
trial and nine months after the case had been placed on the
docket, threatened the efficient administration of justice. The
trial court’s inquiry revealed: no new counsel stood ready and
able to make an appearance on defendant’s behalf; defendant had
not met with or paid his newly-"hired" attorney; and defendant’s
case had been set for trial on at least two separate occasions.
The State contends defendant failed to articulate a reason
why he wanted new counsel and never filed a motion for a
continuance or specified a length of time for a continuance. The
defendant had been represented by Gottreich’s firm for eight
months before defendant requested new counsel. The State
suggests defendant may have wished to delay his trial in hopes
that L.B. would refuse to testify against him.
Several decisions have held a trial court erroneously denied
the defendant’s motion for a continuance to substitute counsel by
failing to conduct an adequate inquiry into the request.
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In People v. Bingham, 364 Ill. App. 3d 642, 644, 847 N.E.2d
903 (2006), the defendant told the trial court he wished to be
represented by Earl Washington, who was representing defendant in
other pending cases. The record showed Washington had contacted
the assistant state’s attorney the previous day, although the
subject matter of the message was unclear. The case had been
pending only three months. No prior continuances or prior
motions had been filed. The court held the trial court "should
have conducted an inquiry into the circumstances and the purposes
of the motion before making its ruling." Bingham, 364 Ill. App.
3d at 645. The conviction was reversed.
In People v. Little, 207 Ill. App. 3d 720, 566 N.E.2d 365
(1990), the defendant moved for a continuance on the date of
trial because the private counsel retained by his family was
misinformed of the trial date and was not present in court. He
told the court the attorney had been paid for his services. The
defendant was in custody during the period between his arrest and
the date of trial and therefore was compelled to rely on his
family to retain private counsel. Little, 207 Ill. App. 3d at
727. None of the previous continuances was requested by the
defendant. The trial court conducted no inquiry into the truth
or falsity of defendant’s assertions, nor did the court ask how
long a continuance would be necessary to secure retained
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counsel’s appearance. Little, 207 Ill. App. 3d at 727. The
conviction was reversed.
In People v. Washington, 195 Ill. App. 3d 520, 523-24, 552
N.E.2d 1067 (1990), the public defender informed the trial court
on the day of trial that the defendant’s family had retained an
attorney for the defendant, who asked for a week-long
continuance. The appellate court held, "[i]f the trial court
suspected that defendant’s representation that a private attorney
had been hired was being used as a delaying tactic, it very
easily could have confirmed or dispelled its suspicion by
inquiring further into the employment of the attorney."
Washington, 195 Ill. App. 3d at 526. The conviction was
reversed.
In People v. Green, 42 Ill. 2d 555, 248 N.E.2d 116 (1969),
the defendant told the trial court his privately retained
attorney was in Washington on a case. He said the attorney had
been paid by his church. The supreme court held the trial court
erred in failing to inquire into defendant’s assertions. The
court said, "[i]t would have been a simple matter to verify
defendant’s statement." Green, 42 Ill. 2d at 557. The
conviction was reversed.
See also People v. Basler, 304 Ill. App. 3d 230, 232, 710
N.E.2d 431 (1999), affirmed as modified and remanded, 193 Ill. 2d
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545, 740 N.E.2d 1 (2000) (conviction reversed because trial court
failed to ask the defendant if she had a specific attorney in
mind or inquire into the reasons for the request); People v.
Ritchie, 66 Ill. App. 2d 417, 418, 213 N.E.2d 306 (1966) (the
defendant, who had been continuously incarcerated, believed and
represented to the court that his family or friends were
obtaining private counsel; there were no facts showing the
defendant’s purpose was dilatory; the conviction was reversed).
In this case, as in Green, Little, and Washington, defendant
claimed someone else hired a private attorney to represent him;
the private attorney had not filed an appearance; and the court
did not attempt to verify the employment of the private attorney.
As in Bingham and Washington, the defendant identified the new
attorney by name. As in Ritchie, the defendant was continuously
incarcerated and relied on his family to retain an attorney for
him. There is no evidence in the record that defendant did
anything to delay the court proceedings prior to the trial day.
Defendant had not requested any continuances prior to his request
to substitute counsel. There is no indication the defendant or
his family could not afford to hire new private counsel. Nor is
there any explanation of how a lawyer can "lose contact" for the
three months before trial with a client who is in jail across
from the courthouse.
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We recognize the presence of factors that apparently led the
trial court to insist that trial proceed with Gottreich as
defense counsel. The case had been pending nine months. It was
set for trial on the day defendant requested a change of lawyer.
The defendant told the trial court the new lawyer had not been
paid. The new lawyer had not filed an appearance and had not
appeared in court. Some of these factors turn up in decisions
that find no violation of the right to counsel.
In Burrell, 228 Ill. App. 3d at 143, the defendant had asked
for a new attorney four months before the trial date. The trial
court informed him the only way he would get another attorney was
if he retained private counsel, which defendant did not do. On
the day of trial, defendant told the trial court he had just met
a private attorney who was willing to take his case. The
attorney did not file an appearance or inform the court of his
involvement with the case. The attorney was in court that
morning and said nothing about representing the defendant. The
appellate court affirmed the trial court’s denial of defendant’s
motion. The court held, "[a]lthough defendant was in continuous
custody for eleven months, he had ample time to retain private
counsel." Burrell, 228 Ill. App. 3d at 143.
In People v. Antoine, 335 Ill. App. 3d 562, 577, 781 N.E.2d
444 (2002), at the hearing on his motion for a new trial, the
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defendant told the court he wanted to fire his attorney,
expressing dissatisfaction with her performance. Defendant first
told the court he was "going to retain" another attorney, then
said he was "hiring an attorney," then said he had "already
retained an attorney." He identified the attorney as Robert
Willis and said Willis asked him to get a continuance. He said
he had paid Willis $6,000. The trial court noted Willis had not
filed an appearance in the case and was not present in court.
The appellate court held it was "troubled by the fact that the
trial court did not attempt to verify Antoine’s final contention
that he had already retained an attorney." Antoine, 335 Ill.
App. 3d at 582. Nevertheless, given the defendant’s changing
versions about whether he had retained counsel, and the complete
lack of evidence that Willis was ready, willing, or able to take
Antoine’s case, the trial court did not abuse its discretion in
failing to grant a continuance. Antoine, 335 Ill. App. 3d at
582.
Here, we focus on the trial court’s failure to inquire more
thoroughly into defendant’s request. Among other things, the
trial judge did not ask the defendant why he wanted another
lawyer, what he meant when he said he "hired" Jerry Lipschultz,
or whether he could afford to hire Lipschultz. Nor did he ask
defendant’s family members, who were present in the courtroom,
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about any arrangements to hire Lipschultz. The judge made no
attempt to contact Lipschultz or Lipschultz’s office to learn
whether he was willing and able to represent the defendant. He
failed to ask Gottreich why he had lost contact with the
defendant during the three months leading up to the trial date, a
time when defendant was in custody. The trial court made no
finding that defendant’s attempt to hire a new lawyer was a
delaying tactic and not in good faith.
Given the failure of the trial court to inquire into the
"circumstances and purposes" of the defendant’s desire to change
lawyers, Bingham, 364 Ill. App. 3d at 645, viewed in light of the
right to retained counsel of one’s choice being "regarded as the
root meaning of the constitutional guarantee" in the sixth
amendment, Gonzalez-Lopez, 548 U.S. at __, 165 L. Ed. 2d at 419,
126 S. Ct. at 2563, we conclude reversible error was committed
and a new trial is required.
The other issues raised by the defendant are unlikely to
recur in a retrial of this case and need not be considered.
For the reasons set forth the convictions against the
defendant are reversed and the cause is remanded for a new trial
consistent with this opinion.
Reversed and remanded.
CAHILL, P.J., and R. GORDON, J., concur.
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